Family law is a specialized branch of the Australian legal system that covers legal rights and responsibilities for those in family relationships. Family law reflects the mores and values of a place, not to mention the unique history of a region. But what exactly does family law entail?
Early family law
Early family law in Australia was muddled. Because it was a penal colony, many male convicts were sent there without their wives and without any marriage records. Fewer female convicts arrived, but in the same condition. Given the distance from England and the situation, most people considered a marriage dissolved if one party ended up there.
As result, many of the settlers chose to remarry or live together informally. Divorce was only available to women if their husband’s infidelity was accompanied by “aggravating circumstances” such as abuse or desertion. Men could divorce their wives for any infidelity.
In the late nineteenth century, Great Britain began to equalize its divorce and family regulations in order to provide more protection for women and children. When Australiabecame in independent colony in 1901, it started taking charge of its own marriage and family law.
Developing family law
Up until the mid-twentieth century, Queensland and the other States only had fault-based divorce. In this scenario, a spouse can only get a divorce if the other spouse deliberately does something to end the marriage. Divorce in this scenario was difficult for those who were not wealthy, since it was often necessary to hire a private detective to gather evidence in order to prove a fault.
As attitudes toward marriage and family law evolved, so has the law. It was not until 1975 that Brisbane, Queensland, and other state courts of Australia finally began allowing no-fault divorce. A few years later, the courts recognized that the laws were unclear when it came to custody of children.
Australian focus on children
Because the laws were unclear, the culture recognized that children were being caught up in antagonistic cases. The next step in the development of family law was to make things simpler, less formal, and more like a family negotiation than a win/lose scenario.
When you walk into a Brisbane family court, you will not see the wigs and gowns you see in other courts. If you look for practitioners of family law in Brisbane CBD, you will find they are already thinking ahead about what is best for the children involved in the case.
When the nation signed the UN Convention on the Rights of Children in 1990, this also signaled something about the values of Australian family law. While all law is complicated, and family law is no exception, the focus on protecting children and their rights provides a degree of clarity.
Modern evolution of family law
The most recent changes in family law have emphasized mediation and resolution instead of litigation and courtroom drama. If a couple is considering divorce and has children, they are now required to attend mediation before they can make any application to the Brisbane Court about custody.
The courts also now recognized the idea of “shared parental responsibility”, which means they actively work to find a way for both parents to be involved in the duties and the joys of parenting even after a divorce. Other modern changes include considering children born outside of marriage on the same level as those born or adopted into a marriage, and recognizing de facto marriages and same-sex marriages.
Things have come a long way and undoubtedly more changes lie ahead. The law always evolves to reflect the values of those who live under it, and it will be exciting to watch how Australia’s family laws continues to develop.