Like most people throughout the world, Australians believe that members of a family should care for and support one another, be loyal to one another and share family resources for the maintenance and benefit of all. We believe it is the proper role of parents to care for, protect and to guide the development of our children.
Developing policies of support for family
There are many circumstances, however, in which a family becomes vulnerable, or may even break apart, and be unable to perform its usual role. Statistics show that when daily practices of care, affection, protection and support break down, there is increased risk that family members will experience separation, poverty, violence and abuse, addiction, poor health or even death.
Law and policy about families in Australia have developed from an earlier traditional and conservative view – that private homes should not be subjected to any form of governmental control -– to reflect more contemporary ideas about government having a proper role in the support of family wellbeing, particularly in times of need. Since Federation, there has been a slow accumulation of law and policy that regulates aspects of forming and dissolving relationships and assists parents and carers to meet their children’s needs. There are also laws to provide care and support where other family members are unable or are not present to provide care and support for each other, special laws that apply only to children, and laws to provide support to families and to members of families that have may special needs; such as Indigenous families, families living with disability, families from other cultures, men, women and youth.
Government support to families occurs in many forms including in the provision of income support; protection from violence and abuse; assistance with childcare, housing, health care, education and employment; and support in formulating financial, property and parenting arrangements after relationship breakdown.
Although the Commonwealth’s Family Law Act, passed by Parliament in 1975, was a big step towards consistent treatment of marriage and divorce issues around Australia, many other family and child-related legal issues arise in our complex, modern social environment. Responsibility for dealing with these issues is split across Commonwealth, state and territory governments. This split continues to cause significant difficulties.
The current, rather awkward arrangement of laws for dealing with family-related issues in Australia is a product of our system of federalism, and also of the Australian Constitution, which was drafted in a bygone social age and yet has proved hard to change.
The nub of the problem is that the Commonwealth’s involvement in family law is restricted under the Constitution to the power and authority (jurisdiction) to make laws about marriage, divorce and related issues only. Jurisdiction for all family issues that are not allocated specifically to the Commonwealth belongs with the states and territories. There are many legal issues around children and families that cannot be related to marriage or marriage breakdown (eg child protection, adoption). The states and territories have jurisdiction to make laws in these areas.
Important developments in recent years have involved the states transferring some of their powers in family-related issues to the Commonwealth. This has had the effect of enlarging the Commonwealth’s family law jurisdiction without the necessity for an amendment to the Constitution. For further details see Parenting and property after separation.