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Published online by Cambridge University Press: 28 February 2024
The Family Court was introduced in Australia in 1976, almost by legislative legerdemain. There had been little debate about it beforehand. There was no Royal Commission, no Law Reform Report. There was little public agitation or debate about its merits. It was suddenly upon us, as part and parcel of the reform of the divorce laws.
How this differs from the position in other countries! In England, the Law Commission invited submissions on Family Courts as early as 1970. The Finer Committee in 1974 strongly recommended them! Numerous commentators since have advocated them in one form or another. The debate continues! But none has yet been set up! France and Germany have established tribunals loosely akin to our Family Court. But they are pallid imitations only. Other countries have tried some experiments. But I know of no country, save possibly Japan, that has established such a radical reform as Australia.
1. A Working Party was set up in 1971, but abandoned its deliberations when the Finer Committee (see note 2) took over the issue.
2. Finer Report: Report of the Committee on One-Parent Families, Cmnd 5629 (H.M.S.O., London, 1974).
3. See J. Neville Turner, Family Courts: The Adelaide Experiment, 1 Legal Services Bulletin (1974).
4. R.V. Watson; Ex parte Armstrong (1976) 136 C.L.R. 248.
5. See Patrick Tennison, Family Court: The Legal Jungle (1983).
6. Wade, J.H., The Family Court of Australia and Informality in Court Procedure, (1978) 27 International and Comparative Laws Quarterly 820 CrossRefGoogle Scholar.
7. Family Law Act 1975, s. 97(3): “In proceedings under this Act, the court shall proceed without undue formality …”
8. Family Law Act 1975, s. 22(2)(b): “A person shall not be appointed as a Judge unless — … by reason of training, experience and personality, he is a suitable person to deal with matters of family law.”
9. Id., s. 23A.
10. The Lord Chancellor in W.S. Gilbert, Iolanthe.
11. Russell v. Russell (1976) 134 C.L.R. 495.
12. See Turner, J. Neville, The Commonwealth Family Law Act 1975 - The First Challenge (1976) 1 Australian Child and Family Welfare 51 Google Scholar.
13. Ibid.
14. Family Law Act 1975, s. 64.
15. Id., s. 79.
16. See e.g. Sieling and Sieline (1979) 4 Fam. L.R. 713.
17. See Smith, and Saywell, (1980) 6 Fam. L.R. 245 Google Scholar.
18. See, e.g. Ascot Investments Pty Ltd v. Harper (1981) 148 C.L.R. 337.
19. Report of the Joint Parliamentary Select Committee on the Family Law Act (1980) Vol. 1.
20. Family Law Act 1975, s. 97(1), amended by Family Law Amendment Act 1983, s. 52.
21. Australian Law Reform Commission: Report on Matrimonial Property (The “Hambly Report”, 1987).
22. See Submission of Children's Bureau of Australia (1985).
23. Family Law Act 1975, s. 64(1)(bb), inserted by Family Law Amendment Act 1983, s. 72.
24. This change was wrought by the Family Law Amendment Act 1988. For a criticism of the Magistrates' Courts as fora for Family Law Cases, see Turner, J. Neville, Family Law and Magistrates, 4 Legal Service Bulletin 88 (1979)Google Scholar.
25. Family Law Act 1975, s. 97(4), was repealed by Family Law Amendment Act 1988.
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