The Family Law Act 1975 outlines applicable law provisions for family law matters (Part XIIIAA, Subdivision D). The Family Law Act 1975 is the primary legislation governing family law matters in Australia. It sets out the legal framework for resolving disputes related to:
Under this Act, the Federal Circuit Court of Australia and Family Court of Australia have jurisdiction over family law matters. The Act promotes the principle of shared parental responsibility and emphasises the best interests of the child.
It also provides mechanisms for dispute resolution, including mediation and family dispute resolution, to encourage parties to reach agreements without resorting to litigation. Read on to learn more about applicable law provisions.
Section 111CQ: Meaning of Law
Section 111CQ of applicable law provisions states that, in this subdivision, “law” does not include choice of law rules. “Choice of law” is a set of rules to select which jurisdiction’s laws are applicable in a lawsuit. Choice of law questions most frequently arise in lawsuits in the federal courts. These questions are based on diversity jurisdiction, where the plaintiff and defendant are from different states.
Section 111CR: Applicable Law Generally
Section 111CR of applicable law provisions outline the application of law in a court exercising jurisdiction under Subdivision B or C. The general principle is that the court must apply the law of Australia in exercising its jurisdiction. However, in exceptional circumstances, the court can consider or apply the law of another country under certain conditions.
These exceptional circumstances arise when:
- A child involved in the case has a substantial connection with another country, or
- The child’s property has substantial connections with another country.
What if the court deems it necessary to protect the child or the child’s property? If this is the case, it may choose to apply or take into account the law of the other country. In subsection (4) of this section, the term “law of Australia” is defined to encompass the laws in force throughout Australia or in a specific part of Australia.
Section 111CR of Applicable Law Provisions: Example
Let’s consider a case where a child, Sarah, who is a citizen of Australia, has been residing in the United States. She has been with her parents for the past three years. Sarah’s parents are currently going through a divorce, and they need to resolve custody and property division issues in court.
Since Sarah has a substantial connection with the United States due to her residence there, the court recognises that exceptional circumstances exist. The court determines that it is necessary to:
- Protect Sarah’s best interests; and
- Ensure a fair resolution regarding her custody and the division of property.
In this scenario, the court may choose to consider or apply the law of the United States alongside the law of Australia. By taking into account the laws of both countries, the court aims to make a well-informed decision that safeguards the rights and interests of Sarah.
The court would examine relevant factors such as the child’s habitual residence, the child’s relationships with parents and extended family in both countries and any agreements or arrangements between the parents regarding custody and property. Based on these considerations, the court may apply provisions from both Australian and U.S. law to arrive at a just and equitable outcome.
Section 111CS: Applicable Law Concerning Parental Responsibility
Section 111CS of applicable law provisions pertain to the principles and application of parental responsibility for a child. This is in the context of international law and the child’s habitual residence. Here’s an explanation of each subsection:
- The principles outlined in this section take precedence over any other provisions in the Act.
- Parental responsibility for a child is governed by the law of the child’s habitual residence country at the time the agreement or act takes effect. This is the case whether granted or terminated through an agreement or unilateral act without court intervention.
- The applicable law is determined by the child’s habitual residence at the time the agreement or act takes effect. This is the case when parental responsibility for a child is given or taken away through an agreement or unilateral act without court involvement.
- The exercise of parental responsibility for a child is governed by the law of the country where the child habitually resides.
Section 111CS of Applicable Law Provisions: Subsections 5 – 8
Section 111CS, Subsection 5 of applicable law provisions state that a child’s habitual residence changes to another country:
- Parental responsibility that exists under the law of the previous habitual residence continues to exist.
- The circumstances under which parental responsibility is attributed, through the operation of law, to a person who did not previously have such responsibility are governed by the law of the new habitual residence.
- The exercise of parental responsibility is governed by the law of the new habitual residence.
Subsection 6 of applicable law provisions states that despite the provisions in subsections 2 to 5, if:
- The law that applies due to this section is from a non-Convention country (a country not bound by a specific international convention regarding parental responsibility);
- The non-Convention country specifies the law of another non-Convention country that will apply under the choice of law rules;
- The other non-Convention country would apply its own law in such a situation;
then the law of that other non-Convention country applies instead.
Subsection 7 states that parental responsibility referred to in subsections 2,3,4,5 can be terminated or modified. This can be done through a measure taken in accordance with section 111CD or 111CK.
Subsection 8 states that a court has no obligation to apply a principle stated in subsections (2), (3), (4), or (5). This is if, upon the application of an interested person, the court determines that doing so would clearly contradict public policy. The court also takes into account the best interests of the child.
Section 111CT: Effect of Registered Foreign Measures
Subdivision E under Division 4 of Part XIIIAA (International Conventions, International Agreements and International Enforcement) consists of Section 111CT. This Section outlines the effect of registered foreign measures.
Subsection (1) states that Section 111CT applies to a foreign measure that is registered in a court in accordance with regulations made for the purposes of section 111CZ.
A foreign measure could either be:
- a foreign personal protection measure; or
- a foreign property protection measure.
A foreign personal protection measure is a measure (within the meaning of the Child Protection Convention) taken by a competent o a Convention country for protecting the person of the child.
To understand the terms we have used above, read this article here.
Moreover a “foreign property protection measure” relating to a child means a measure (taken by a competent authority of a Convention country for appointing, or deciding the powers of, a guardian of the child‘s property.
Subsection (2) states that the foreign measure:
- has the same force and effect as a Commonwealth personal protection measure or a Commonwealth property protection measure (as appropriate); and
- prevails over any earlier inconsistent measure in force in Australia, including:
- an order registered under Section 70D or 70
- any other order made, or agreement registered, under this Act.
Importance of Seeking Legal Advice
A family law firm, such as JB Solicitors, can provide specialised expertise, and evaluate your specific circumstances. Our lawyers can offer tailored advice to help you navigate the legal complexities surrounding parental responsibility and international law.
Our mediation and arbitration services can ensure that disputed parties can reach an amicable agreement in their family law matters.
Contact us today for all your family law matters today.
