Family part is a vital part of the legal system especially the Australian legal system. It entails everything related to domestic issues like annulment, divorce, custody rights, alimony etc. Everything that could be a domestic issue comes under the umbrella of family law.
Sources of Family law
Family law like any other domain of law differs in every legal system and has different sets of rules. These rules are derived from various sources of law.
In this particular case of family law in Bathurst NSW, the law is derived mainly from the Family Law Act 1975 and common law which is basically law that is derived from the precedents of the courts and their verdicts, and equity which is based on the principles of fairness. So it is legislation, common law principles and equity that has shaped the family law in Bathurst NSW.
Where are matter of family law heard?
There is a designated court in Australia and by extension in Bathurst NSW, for cases pertaining to issues that fall under the category of family law. These cases are not tried or head in the local court but in the family law court of Australia or alternatively the Federal Magistrates court of Australia.
However, before a matter that pertains to family law can be heard in the court, like all other legal systems in the world it is not only encouraged but made mandatory that the parties involved opt for ADR or Alternate Dispute Resolution which is basically a way of settling things out of court with the help of dispute resolution services that are in this case funded by the Australian government.
This is encouraged because of the excessive amount of cases that a court has to deal with on every day basis and for the convenience of both the parties involved as it is the most affordable, efficient and quick way of solving a dispute.
However, if all options have been exhausted then you can choose to file your application and go to aforementioned courts.
The important aspects of Family law in Bathurst NSW
Before the enactment of the 1957 legislation, the premise of divorces which make up a sizeable chunk of family law matters, the divorce was fault based. Which means that one of the spouses had to prove a marital fault in order for the courts to recognize and carry on with the divorce proceedings and the only time the no fault approach was taken was when the couple has been separated for more than 5 years and that’s when you were able to file for a divorce.
In all other circumstances a fault like infidelity, emotional or physical abuse was to be proven.
All of this changed when the Family law Act 1957 was legislated and the no fault divorce was introduced.
There is no need now to prove that a spouse is at fault. All you have to show is “irretrievable breakdown of the relationship, demonstrated by 12 months of separation” as mentioned on the family courts website.
Custody of the Children
Moving on to the custody and children. Australia is the party to the UN convention on the Rights of the Child and that reflects in their family law especially the Family law Reform act 1995 which focuses on the best interest of the child.
This means that the onus of responsibility of the wellbeing, look after of the child is on both the parents regardless if the custody is with one parent or its joint custody. They have to share responsibilities till the child is 18.
If the parents cannot agree on custody matters then the court will take in all factors for example who can be there for the child for the most part, provide pick and drop, financial stability and emotional stability and countless other factors.
In cases where the child is too young the custody usually goes to the mom. There can always be visitation hours etc for other family members like the grandparents.
Moving on to a very important part is alimony and something of crucial importance when family law and divorce are being discussed.
Spousal maintenance is what alimony is called and it something that is different for child maintenance or child support.
There is a certain threshold that one needs to meet in order to get spousal maintenance. Anyone who is from New South Wales with a de facto marriages can apply if they separated after 1 march 2009. You are not eligible if you remarried or are in another de facto relationship.
The amount will depend on the financial circumstances of the spouse.
If you cannot contact your child
If the circumstances are such that you have no contact with your child or the child has been moved to an unknown location, which is a common occurrence, they a recovery order can be sought.
A recovery order allows the child to be brought to the court and if that fails then in order to locate a child a publication order is issued.
Publication order means that some information can be published which can be helpful in locating the child.
Law on Family Violence
Section 60 of the Family law Act 1957 is of utmost importance in this regard. Under usual circumstances the court makes it mandatory for the family to attend ADR sessions.
However, in this case it not necessary if it happened or there’s a chance of it happening.
There’s something called Magellan case management which deals with all kinds of cases under family law pertaining to serious allegations of any kind of abuse of a child.
What is so special about it is that it is a fast track way of dealing with the cases and more scrutiny is adopted during the course of a case. There’s an independent child lawyer involved and information can be requested from different states if necessary.
Appeal of a case
A notice of appeal is filed with the regional appeal registry within 28 in order to show that you want a decision by a family court judge or a federal circuit court judge to be set aside. Then a draft index is filed in the appeal of books within those 28 days in order to ensure the appeal is not abandoned. The appeals are heard before the Full court, which complied of the three judges of family court.