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BGHS Legal > Family > Flashcards

Family Flashcards

0
Q

How does the UN Declaration of Human Rights describe ‘the family’?

A

As the “natural and fundamental group unit of society and entitled to protection by the State”

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1
Q

Define marriage under Australian law. Which case established this precedent? When was the definition inserted into legislation in Australia?

A

The Union of a man and a woman to the exclusion of all others voluntarily entered into for life.

Case: Hyde v Hyde and Woodmansee

Inserted into Marriage Act 1961 (Cth) in 2005

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2
Q

Which Act regulates marriage in Australia?

A

The Marriage Act 1961 (Cth)

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3
Q

Name 2 other important requirements for a valid marriage.

A

Must be of marriageable age
Must not be a prohibited degree of relationship
Must be a valid marriage ceremony
Must fit the definition of marriage

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4
Q

Which case allowed for the marriage of a transsexual despite being born the same sex as their partner?

A

Re Kevin (2001)

Overturned precedent in Corbett v Corbett

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5
Q

Which case highlights the ability of the law to intervene to declare void marriages where one party was forced to marry under duress?

A

Kreet v Sampir (2011) - forced into an arranged marriage. (Note: this does NOT mean all arranged marriages are declared void)

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6
Q

Which ‘case’ highlighted the effectiveness of the law in preventing marriages for those under 18?

A

The case of the 12 year old girl married in an Islamic ceremony to a 26 year old man. The ‘husband’ and father were both charged and are being held on remand awaiting their trial. (As reported in the Daily Telegraph in February, 2014: Man marries off daughter, 12, in Islamic ceremony

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7
Q

What was the purpose of the insertion of the definition of marriage into the Marriage Act in 2004?

A

To prevent same-sex couples marrying overseas and then claiming marital status in Australia

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8
Q

How many bills were introduced into the Federal Parliament in 2012 to allow for same-Sex marriage?
What was their result?

A

2.

They both failed

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9
Q

What was the name of the ACT’s marriage equality legislation passed in 2013? Why was it struck down by the High Court soon after its inception?

A

Marriage Equality (Same Sex) Act 2013 (ACT).

It was unconstitutional as marriage is an exclusive power of the Federal government.

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10
Q

Which Act was the first legal recognition of de facto couples in NSW?
What did it do?

A

De Facto (Relationships) Act 1984 (NSW)

Put in place a mechanism for de factos to resolve their property disputes upon separation

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11
Q

Which Act allows de factos and same sex couples to register their relationship in NSW?

A

The Relationships Register Act 2010 (NSW)

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12
Q

Which Act gave de facto and same sex couples access to the Federal courts to resolve their property disputes at the same time as their child disputes?

A

Family Law (De Facto Financial Matters and other Measures) Act 2008 (Cth)

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13
Q

Which Act recognised same sex couples as de factos in NSW?

A

The Property (Relationships) Act 1984 (NSW)

It replaced the De Facto (Relationships) Act 1984 (NSW)

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14
Q

Which significant federal reform in 2008 provided same sex couples with the same rights as de factos across 85 different areas of the law?

A

The Same Sex (Equal Treatment in Commonwealth Laws - General Law Reform) 2008 (Cth)

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15
Q

Which law prevents polygamous marriages in Australia?

How has the Australian legal system responded to the growing number of polygamous marriages originating in other countries?

A

Marriage Act 1961 (Cth) - definition (to the exclusion of all others)

By recognising the first wife as the married partner and the other wives ad de factos (and thus still protected under the law)

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16
Q

How does the legal system regard traditional ATSI marriages?

Why are these marriages not recognised as such?

A

As de factos

They do not meet the requirements of a valid marriage.

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17
Q

Which Act regulates adoption in NSW?

A

Adoption Act 2000 (NSW)

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18
Q

In what year was the Adoption Act 2000 (NSW) amended to implement ‘open’ adoptions?

A

2010

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19
Q

Which international treaty regulates overseas adoption?

A

The Hague Convention

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20
Q

What must be issued by the country of origin for an overseas adoption to be approved by the Supreme Court?

Which case supports this requirement?

A

An Adoption Compliance Certificate.

The Adoption of G

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21
Q

When did the Adoption Act change to allow same sex couples to adopt together?

A

2010

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22
Q

Which change to child protection laws in 2014 could have an impact on adoption rates in NSW?

A

The amendment to allow children to move more quickly from foster-care to adoption (after 6 months for children under 2, 12 months for those over 2)

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23
Q

Which case established the first precedent in Australia regarding surrogacy? What was this precedent?

A

Re Evelyn

Precedent: that it is in the best interests of the child to reside with their birth mother when conflict arises.

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24
Q

Which statute regulates surrogacy in NSW?

A

Surrogacy Act 2010 (NSW)

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25
Q

What were the positive aspects of the Surrogacy Act 2010 (NSW)?

A

The introduction of parentage orders to replace the Adoption process

The requirement for all parties to the arrangement to access compulsory legal advice and counselling.

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26
Q

Which aspect of the Surrogacy Act 2010 (NSW) has been it’s most controversial?

A

The ban on commercial surrogacy.

27
Q

What possible penalties are in place for engaging in commercial surrogacy arrangements in NSW?

A

Fines of $110,000 or 2 year jail terms.

28
Q

Which highly publicised case led to greater concern in the community about overseas commercial surrogacy arrangements?

A

The “case of Gammy”.

29
Q

What is the estimated number of overseas commercial surrogacy arrangements entered into by Australian couples every year?

A

Over 300.

30
Q

Which international treaty outlines the rights that should be afforded to children?

A

The Convention on the Rights of the Child (CRoC)

31
Q

Indicate 4 rights all children are entitled to

A

Right to an education
Right to medical treatment
Right to be free from harm
Right to be provided the basic needs of life (food, shelter, clothing) and free from neglect

32
Q

Which statute enforces the right to education in NSW?

How does it protect this right?

A

The Education Act 1990 (NSW)

States that education is compulsory in NSW for those aged 6-17. Parents who do not ensure their child attends school can be fined.

33
Q

What role does the law play in ensuring children receive appropriate medical care?

A

The courts will intervene when parents refuse medical treatment (eg religious views which prevent blood transfusions)

Failure to get appropriate treatment such as seen in R v Sam will see parents charged with manslaughter.

34
Q

Which Act outlines guidelines regarding the use of corporal punishment on children?

A

The Crimes Act 1900 (NSW)

Eg: children should not be hit above the shoulders on the neck or head.

35
Q

Which case highlights excessive use of discipline with a child?

A

The death of Tanilla Warrick-Deaves (R v Ross)

36
Q

Which Act outlines the measures in place to ensure the care and protection of children?

A

The Children and Young Persons (Care and Protection) Act 1998 (NSW)

37
Q

Name 2 features of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

A

Mandatory reporting for certain professions such as teachers and doctors.

Ability of the Children’s Court to remove children from their home when they are at risk of harm.

38
Q

What was the impact of the introduction of mandatory reporting if children?

A

Exponential (large) increase in the number of children reported to DOCS which left them unable to cope with the number of referrals.

39
Q

Name 2 cases in 2007 which were the catalyst for the Wood Inquiry.

A

The death of ‘Ebony’ (R v BW & SW) and the death of Dean Shillingsworth (R v Pfitzner).

40
Q

What was the main recommendation of the Wood Inquiry?

A

The changing of the threshold for reporting to FACS to only children at risk of SIGNIFICANT harm.

41
Q

Which 2 cases highlight that there are still shortfalls in the protection of children despite the implementation of the Wood Inquiry recommendations?

A

The death of Tanilla Warrick-Deaves (R v Ross) and Kiesha Wieppart (R v Abrahams)

42
Q

Which statistic indicates that there has been improvement in the effectiveness of FACS since the Wood Inquiry?

A

1/3 of children now receive a face-to-face assessment (previously it was 1/5)

The ratio of case workers to children has also improved (though well below that recommended by the Ombudsman)

43
Q

Which media report highlights the chronic underfunding and short staffing of FACS as the primary issue in its inability to provide adequate protection of children

A

SMH November 2014 - Department of FACS Report reveals children still at risk

44
Q

What is the name of the main law regulating divorce in Australia?

A

The Family Law Act 1975 (Cth)

45
Q

What was the most significant aspect of the FLA?

What did it replace?

A

The introduction of ‘no fault’ divorce.

The need to show one of 14 reasons for divorce under the Matrimonial Causes Act 1959 (Cth)

46
Q

Which court did the FLA introduce?

A

The Family Court

47
Q

Which amendment to the FLA incorporated Australia’s obligations under the Convention on the Rights of the Child?

What was the key feature of this amendment?

A

The Family Law Reform Act 1995 (Cth)

That decisions about children should be based on what is in “the best interests of the child”

48
Q

What change in language did the 1995 amendment to the FLA introduce?

A

“Custody” became “residential orders”
And
“access” became “contact orders”

Reason: to remove notions of ownership and the concept of parental rights.

49
Q

What was the name of the 2006 amendment to the FLA?

A

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

50
Q

What are the 2 primary considerations used to determine what is “in the best interests of the child” introduced with the 2006 FLA amendment?

A
  1. The right of a child to have a meaningful relationship with both parents
  2. The need to protect children from physical and psychological harm
51
Q

How did the 2006 amendment to the FLA alter the notion of parental responsibility and who a child lives with?

A

It introduced the presumption of EQUAL shared parental responsibility

and

Consideration of equal time arrangements for who a child lives with.

52
Q

Which Act is in place to respond to domestic violence in NSW? How is it different from the previous law?

A

The Crimes (Domestic and Personal Violence) Act 2007 (NSW).

It created a stand-alone Act for domestic violence.

53
Q

According to the ABS 2005 Personal Safety Survey, what percentage of women over the age of 15 experience domestic violence?

A

33%

54
Q

According to the ABS 2005 Personal Safety Survey, what percentage of domestic violence goes unreported?

A

64%

55
Q

What is the primary measure in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to prevent domestic violence?

A

Apprehended Domestic Violence Orders (ADVOs)

56
Q

List 3 features of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)

A
  1. Charges are now recorded as being domestic violence related (so patterns can be established)
  2. Children are automatically included on a mother’s ADVO
  3. Changes in 2014 to the Act now allow police to give on the spot provisional ADVOS, rather than having to call a justice service. (This is to prevent the perpetrator fleeing the situation to avoid an ADVO being placed on them)
57
Q

How many breaches of ADVOs occurred in 2012 in NSW? What does this suggest about compliance?

A

Approximately 12,000.

High levels of non-compliance!

58
Q

What do studies suggest is the impact of ADVOs on most women?

A

The majority of women feel that ADVOs are extremely effective and empowering, acting as a statement to the offender that violence will no longer be tolerated.

59
Q

What was the purpose of the pilot program trialled by Legal Aid at Burwood Local Court with regard to ADVOS?

A

To educate perpetrators of domestic violence about the legal ramifications of ADVOs and direct them towards support services to reduce their propensity to commit violent acts

60
Q

What were the findings of the BOCSAR evaluation into the Burwood Court pilot program regarding ADVOs

A
  1. It had no impact on reducing the number of breaches of ADVOs
  2. DESPITE THIS, 98% of women experienced no violence after the implementation of an ADVO (very impressive)
  3. Women should be ENCOURAGED to take out ADVOs as they are mostly very effective
61
Q

Name a case of a woman killed by her former partner despite having an ADVO against him

A

Comrie Cullen. Her former husband, Christopher Cullen (R v Cullen), was found guilty of her murder in June 2015

62
Q

What is the federal equivalent of an ADVO under the FLA?

A

A Family Court Injunction (used when partners going through separation)

63
Q

What are the issues with Family Court Injunctions?

A

They can be hard to obtain ad can take a while (6 weeks). Breaches of Injunctions are NOT a crime (like ADVOs are). It is quicker and easier to obtain an ADVO

64
Q

What changes to the FLA in 2006 led to some children being subjected to family violence?

A

The over-emphasis on the need for children to have a meaningful relationship with both parents (1st primary consideration), and the implementation of the ‘friendly parent’ provisions

65
Q

How did the Federal government respond to the issues of violence which developed from the 2006 amendment to the FLA

A

Implemented the Family Violence Act 2011 (Cth) which broadened the definition of ‘family violence’, put greater emphasis on the need to protect children from harm (2nd primary consideration)

66
Q

How did the 2014 changes to the Crimes Act 1900 (NSW) with the Crimes Amendment (Provocation) Act 2014 (NSW) assist in providing protection of women subjected to family violence?

A

By allowing the so-called ‘battered woman syndrome’ to still be used as a provocation defence for women who kill their partners having being subjected too ongoing abuse.

BGHS Legal (4 decks)

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