contemporary issues surrounding family law Flashcards
1
Q
what is the contemporary issue of same-sex relationships?
A
- the initial definition of ‘marriage’ under the Marriage Act 1961 (Cth) was exclusive to heterosexual relationships
- the Sex Discrimination Act 1981 (Cth) did not provide same-sex couples the same anti-discrimination rights as de facto couples as their legal marital status remained ‘single’
- in response to the Australian Human Rights Commission’s report, Same-Sex: Same Entitlements: A National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits (2007), 84 Commonwealth Acts were amended by the federal government in 2008 to eliminate differential treatment of same-sex couples
- in 2017, a postal survey was conducted to amend the Marriage Act in order to allow same-sex marriage; this came into effect on 9 December 2017 as the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
2
Q
what are legal responses in relation to same-sex relationships?
A
- Property (Relationships) Act 1984 (NSW): recognises same-sex relationships as having the same legal standing as heterosexual de facto relationships, and provides the same protection
- Veterans’ Entitlements Act 1986 (Cth): amended in 2009 to include same-sex relationships for war widow pensions
- Adoption Amendment (Same- Sex Couples) Act 2010 (NSW): allows same-sex couples to adopt
- Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) (repealed) grants equal parenting rights for the female partners of mothers, listing both as mothers on the child’s birth certificate; this change gives children born into same-sex relationships equal rights to inheritance from both parents and protects the rights of both mothers in matters involving the children if the relationship ends
3
Q
what are non-legal responses in relation to same-sex relationships?
A
- Australian Human Rights Commission (AHRC): held a number of inquiries into areas of discrimination and human rights violations and created the report, ‘Same-Sex: Same Entitlements’
- Australian Marriage Equality: lobby group
- NSW Gay and Lesbian Rights Lobby: lobby group
4
Q
what is the contemporary issue of the changing nature of parental responsibility?
A
- there is little difference between a parent’s legal obligations and responsibilities in relation to their children
- today the courts are less concerned with parental rights and more concerned with parental responsibility, focusing on ensuring that parents fulfil their legal obligations towards their children
- reforms to family law have tended to focus on maintaining positive and supportive family structures even when parents separate
- there are always instances where the child will spend a disproportionate amount of their time with one parent (for example, financial/geographic constraints, a parent’s alcohol abuse, poor health)
5
Q
what are legal responses in relation to the changing nature of parental responsibility?
A
- Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): reformed to include two types of considerations to be taken into account by a court in respect of the ‘best interests’ of the child- ‘primary’, such as the child having a positive and meaningful relationship with both parents, and the need to protect the child from abuse and family violence- and ‘additional’, such as the child’s wishes, the nature of the relationship between the child and the parent, the financial ability of the parent to care for the child and the ability of the parent to provide for the intellectual and emotional needs of the child
- ‘Time for Action: The National Council’s Plan to Reduce Violence against Women and Their Children 2009–2021’: federal government plan that identified a range of issues that undermined the effectiveness of the present domestic violence and child protection legislative framework
- Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth): passed in response to ‘Time for Action’ plan
6
Q
what are non-legal responses in relation to the changing nature of parental responsibility?
A
- non-government organisations (NGOs): community- and church-based institutions, as well as nation-wide organisations such as Relationships Australia, can help separating parents negotiate their own parenting agreements and can also provide a range of information and referrals
- National Council of Women of Australia: women’s resource centre
- Dads in Distress Support Services: provides support for men who are going through a divorce, separation or relationship breakdown
7
Q
what is the contemporary issue of surrogacy and birth issues?
A
- under common law, the mother of a child is the woman who gave birth to the child and the father is the man who acknowledges and accepts the responsibility for the child or who is proved to be the father in court
- birth technologies include artificial insemination, in vitro fertilisation (IVF) and the use of genetic manipulation, gene shearing or donated genetic material
- under the Status of Children Act 1996 (NSW), children conceived via artificial insemination or IVF have the same legal status as children conceived naturally
- under the Status of Children Act 1996 (NSW), ‘when a woman becomes pregnant by using donor sperm from someone other than her husband, then that man is presumed not to be the father of the child born’
- surrogacy involves an agreement between a commissioning couple and a woman, where the woman agrees to bear a child for the commissioning couple and then give the child to the couple when the child is born
- under the law, it is usually the woman who gives birth to the child – whether the child is conceived naturally or artificially – who is the mother
- under the Surrogacy Act 2010 (NSW), it is now possible to transfer the parentage of the child from the birth parent to the prospective parent in the surrogacy contract, which will in effect avoid the commissioning parents having to go through a formal adoption process
- under the Surrogacy Act 2010 (NSW), commercial surrogacy remains illegal even when carried out overseas
8
Q
what are the legal responses in relation to surrogacy and birth issues?
A
- (laws concerning surrogacy in Australia are state or territory based)
- Surrogacy Act 2010 (NSW): removed the presumption of the Status of Children Act 1996 (NSW) that a child’s legal parents were presumed to be the birth parents; the Act also introduced a system of parenting orders where parties can apply to the NSW Supreme Court for an order to transfer full legal parentage of the child from the birth parent in a surrogacy arrangement to the commissioning parent
- Assisted Reproductive Technology Act 2007 (NSW): regulates many ethical and social aspects of assisted reproductive technology, with the key objective to prevent commercialisation of human reproduction
- Australian Citizenship Act 2007 (Cth): does not define ‘parent’, meaning a child born in a country that currently allowed commercial surrogacy will be granted Australian citizenship by descent even though the child’s intending parents may not be considered the child’s legal parents
9
Q
what are non-legal responses in relation to surrogacy and birth issues?
A
- (various organisations and lobby groups have opposed surrogacy on moral grounds, usually based on religious principles, with concerns centred on the concept of a traditional family, especially because surrogacy may provide an avenue for same-sex couples to have children)
- Australian Christian Lobby: claimed in 2009 that surrogacy ‘would pave the way for two men or two women to ‘order’ a baby they are not even genetically connected to’, and would deny the child either a male or a female parent and role model
- Surrogacy Australia: not- for-profit organisation that educates and supports individuals about surrogacy and promotes ethical surrogacy options for couples
10
Q
what is the contemporary issue of the care and protection of children?
A
- the Child Protection Legislation Amendment Act 2014 (NSW) (repealed) focuses on the safety and wellbeing of a child or young person by providing them a secure environment free from four types of harm, namely emotional abuse, neglect, physical and sexual abuse
- when parents are unable to fulfil their legal obligations, child protection authorities investigate adoption or placing the child in temporary foster care
- authorities are allowed to seize children once they are born if it is proven that the birth mother had a history of drug or alcohol abuse during the pregnancy
- under the Children and Young Persons (Care and Protection) Amendment Act 2009 (NSW) (repealed), families work alongside the NSW Family and Community Services (FACS) and with the biological parents to ‘foster’ the care and protection of children that need to reside away from situations of neglect
11
Q
what are legal responses to the care and protection of children?
A
- Family Law Act 1975 (Cth): defines ‘family violence’; was amended in 2006 to ensure that children are protected from both direct harm and harm resulting from exposure to family violence
- Community Services: can apply to the Children’s Court for an Emergency Care and Protection Order if relevant authorities consider that a child or young person is in urgent need of protection
- Child Protection National Minimum Data Set: implemented in 2013 to standardise the reporting procedures for children at risk and enable a more comprehensive collection of data
12
Q
what are non-legal responses in relation to the care and protection of children?
A
- Salvation Army: provides extensive support and educational services to children in need, including childcare centres, counselling services (for example, for addiction and bereavement), and emergency housing and youth support programs
- Child Abuse Prevention Service: aims to alleviate child abuse by educating the community about child abuse issues and providing counselling and ongoing support for victims and perpetrators
- Kids Helpline: offers confidential help and online counselling and support services for young people aged between 5 and 25 years
- Benevolent Society: offers programs supporting families to overcome stresses that lead to abuse and neglect; services include counselling, home visits, access to child-health professionals, play groups, social groups for parents, art therapy and links to local services
13
Q
what are some acts of legislation that relate to contemporary issues surrounding family law?
A
- Marriage Act 1961 (Cth)
- Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
- Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
- Surrogacy Act 2010 (NSW)
- Assisted Reproductive Technology Act 2007 (NSW)
- Family Law Act 1975 (Cth)
- Child Protection Legislation Amendment Act 2014 (NSW)
14
Q
what are some cases that relate to contemporary issues surrounding family law?
A
- Re Michael (2009) - recognition of parenting rights in instances of surrogacy arrangements
- Wilson v Qantas Airways (1985) - discrimination of martial status for a same-sex couple
15
Q
what are some media articles that relate to contemporary issues surrounding family law?
A
- “Same-sex couples demand apology for 2013 high court annulment of marriages” (2013), The Guardian Australia
- “Fathers vow to unite and fight family law reversal” (2010), the Sydney Morning Herald; role of fathers in child protection
