Family law in Australia
Bargaining in the shadow of the Constitution
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March 2000
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Abstract
The Australian Constitution divides responsibility for several areas of Australian family law between the States and the Commonwealth. The dual system created as a consequence, particularly in relation to child protection issues, provides opportunities for confusion and duplication. And what are the effects of Federalism on those exercising jurisdiction under the Family Law Act? The author spells out some of the existing problems, stating that it is distressing to document the fragmentation and lack of cohesion in an area such as family law where consistency and clarity are so greatly needed. He also notes that it is equally distressing that solutions to these difficulties, apart from band-aid measures, are not readily forthcoming. The article explains the relevant Constitutional issues and challenges, and discusses the Matrimonial Causes Act, the Family Court structure, referral of powers, cross vesting, child protection issues, and the role of protocols.
The Australian Constitution divides responsibility for several areas of Australian family law between the States and the Commonwealth. The dual system created as a consequence, particularly in relation to child protection issues, provides opportunities for confusion and duplication. And what are the effects of Federalism on those exercising jurisdiction under the Family Law Act? The author spells out some of the existing problems, stating that it is distressing to document the fragmentation and lack of cohesion in an area such as family law where consistency and clarity are so greatly needed. He also notes that it is equally distressing that solutions to these difficulties, apart from band-aid measures, are not readily forthcoming. The article explains the relevant Constitutional issues and challenges, and discusses the Matrimonial Causes Act, the Family Court structure, referral of powers, cross vesting, child protection issues, and the role of protocols.