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HSC Legal Studies > Family > Flashcards

Family Flashcards

1
Q

Family

A

Refers to “two or more persons… Related by blood, marriage, adoption, step or fostering…” - ABS

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2
Q

Marriage

A

“Union of man and woman to the exclusion of all others, voluntarily entered into for life” - Hyde vs Hyde 1866

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3
Q

Law establishing legal requirements of marriage

A

Marriage act 1961 (cwlth)

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4
Q

Requirements of marriage?

A

Age, gender, consent, prohibited degrees of separation, previous marriage, notice of intention to marry

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5
Q

Legal and non legal consequences and responsibilities following marriage:

A
  • consortium: non-legal requirement of spouses to provide care and affection to one another
  • maintenance: spouses must provide financial support to one another esp, child maintenance & support
  • property rights: each spouse entitled to share of assets upon Divorce
  • agency: spouses not responsible for debt of other spouse but main income earner expected to meet debt assumed by other spouse to purchase necessary household items
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6
Q

Succession act 2006

A

Established that all property will transfer to surviving spouse in case of spousal death without a will

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7
Q

Alternative family relationships? eg?

A

Increasing prevalence of familial relations which do not conform to traditional definition of nuclear family eg. Single parent, blended, same sex, de fact, polygamous

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8
Q

Family law amendment (de facto financial matters and other measures) act 2008 (cwlth)

A

Same sex and de facto couples nationally were given equal treatment in financial matters

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9
Q

Which legislation gave de facto equal financial rights on separation as married couples?

A

Property (relationships) act 1984 (Nsw)

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10
Q

De facto

A

Two people living in an unregistered relationship

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11
Q

Family law reform act 1995

A

Established that children have rights and parents; responsibilities

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12
Q

Children and young persons (care and protection) act 1998 (Nsw)

A

Allows for external intervention where child is perceived to be at serious risk of harm

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13
Q

How does FLA reflect principles of CROC in domestic law

A
  • right for children to be cared for by both parents
  • utmost importance for children to be shielded from psychological and physical harm or abuse
  • children to be heard in proceedings concerning them
  • shared equal parental responsibility
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14
Q

Domestic rights and obligations regarding children

A
  • care and control: right to know and be cared for by both parents - parents gave responsibility to control their child and are responsible for child’s behaviour
  • edu
  • discipline: moderate and reasonable corporal punishment
  • medical treatment
  • autonomy of children
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15
Q

What act is adoption governed by? 2010 amendment?

A

Adoption act 2000 (Nsw).

2010 amendment allowed same sex couples to adopt children in same manner as other couples and individuals

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16
Q

How has divorced changed over time?

A

Divorce governed by the Family Law Act 1975 (Cwlth) repealed the Matrimonal Causes Act 1959 (cwlth) which set out 14 grounds for divorce and a 5 year time period to obtain a ‘no fault’ divorce

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17
Q

Requirements of divorce

A
  • follows no fault divorce principle where couples do not need to provide reason, only that their relationship has irretrievable broken down. To prove this, couples must spend a 12 month period living separately and apart.
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18
Q

Family law reform act 1995 (cwlth)

A

Created notion of equal, shared responsibility and need to protect children from unacceptable risk of violence

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19
Q

Kennon and kennon 1997 case

A

Established DV as negative contribution to be taken into account with property division

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20
Q

Difference between parental plan and order

A

Plan: achieved through private negotiation
Order: legally binding through courts

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21
Q

Child maintenance?

A

Payment from one spouse to another to maintain their child until age of 18

22
Q

How can division of property be facilitated?

A
  • private financial arrangements
  • family dispute resolution
  • family court
23
Q

DV?

A

Physical, sexual. Emotional, psychological, financial or other abuse offender has committed in domestic relationship

24
Q

Battered woman syndrome?

A

Psychological paralysis where victim becomes so depressed that they are incapable of leaving abusive situation > stays with abuser and continues cycle of DV

25
Q

ADVOS?

A

Apprehended domestic violence orders; orders legally requiring perpetrator to not approach individual at risk otherwise, perpetrator would face serious criminal liability

26
Q

Family law act 1975: re: DV

A

Protects children from DV by preventing abusive parents from gaining custody of children

27
Q

What act established ADVOS?

A

Crimes (Domestic and Personal Violence) Act 2007

28
Q

Federal response to DV

A
  • protection of children (Family law act 1975)

- DV as negative contribution in property division

29
Q

State response to DV

A
  • ADVOS
30
Q

Definition of family law

A

Body of law which governs relationships between family members and established rights and responsibilities with which families are endowed

31
Q

Family dispute resolution

A

Methods of resolving disputes independent of the court system, including meditation, conciliation and counselling

32
Q

Federal courts have jurisdiction over family law matters including:

A

Divorce and division of children and property after separation

33
Q

Jurisdiction of state courts re: family matters

A
  • wills, inheritance, succession
  • adoption
  • DV and ADVOS
  • surrogacy and birth technologies
  • care and protection of children
34
Q

Advantages/ disadvantages of FDR

A

A:
- cheaper and faster than attending court
- helps participants feel as if they have independently worked out an agreement rather than have one imposed
D:
- equal bargaining powers are not often the case
- may not be strictly appropriate for the matter

35
Q

Role of NGO re: families. Types of NGOs?

A

Providers of advice and assistance to families experiencing problems
Types include:
- Charitable organisations (eg Salvos; provides support to families through provisos of emergency accommodation and essentials)
- community based not for profit providing services such as FDR
- legal assistance groups eg Legal Aid NSW

36
Q

Lobby groups re: Family. Aim and example.

A

Lobby groups have specific aims which attempts to place pressure on governments to reform the law.
Includes
- DV Committee Coalition: formed in 2006 to draw attention to DV related deaths
- Australian Marriage Equality places pressure on govt. to recognise same sex marriages

37
Q

Role of media re: family?

A

Important role in driving reform in family law through pressuring and criticism of govt, and it’s role in propagating views of certain lobby groups to public

38
Q

Example of success of media re: family

A

Establishment of NSW Domestic Violence Death Review Panel came directly affect wide media publicity of DV death of Melissa Cook and Others

39
Q

Surrogacy Act 2010 (NSW) re: homosexuals

A

No discrimination against homosexual couples in non-commercial surrogacy arrangements

40
Q

Family law amendment (shared responsibility) act 2006 (cwlth)

A

est. principle of ‘equal shared parental responsibility’ and led to more shared care agreements between parents

41
Q

Change in laws & values over time re: parental responsibility

A
  • initially, parents seen to have right to custody over their children, idea which ended with 1995 amendment to FLA
42
Q

Evaluation of current law; re parental responsibility

A
  • more children are spending substantial time with both parents (16% in 2009>9% in 2003)
  • fewer matters re: responsibility of children going to court
43
Q

Criticism re: parental responsibility

A
  • notion of ‘equal, shared parental responsibility’ inevitable resulted in children being placed with abusive parents
  • conflict between parents and living arrangements
  • only 50% of parents pay child support in full and on time
44
Q

Benefits of surrogacy

A
  • people have right to create FAM whichever way they wish
  • woman may use body however she wishes
  • allows infertile couples to have children
  • cannot prevent private surrogacy arrangements hence better that surrogacy is regulated to ensure protection of surrogate’s rights
45
Q

Negatives of surrogacy

A
  • child becomes commodity
  • surrogate reduced to baby producing machine
  • exploitation of poor
46
Q

Safeguards of surrogacy:

A
  • Applications to Supreme Court for parentage orders must be sent between 30-6months after child’s birth
  • all expenses of birth mother must be covered by intended parent
  • both surrogate + intended parents must go through counselling and obtain legal advice
47
Q

Role of law in encouraging cooperation and resolving conflict:

A
  • creation of adoption plans
  • encouragement of reconciliation between couples before divorce proceeding are finalised
  • FDR
  • note that cooperation between parties to conflict is not to be encouraged in cases of DV
48
Q

Compliance and non compliance re: family

A
  • payment of child maintenance (only 50% parents pay on time and in full)
  • ADVOS
  • illegal overseas commercial surrogacy arrangements
49
Q

Changing values in fam law?

A
  • society’s understanding of ‘family’ and alternative family relationships
  • at fault and no-fault divorce
  • recognition of same sex relationships
  • changing nature of parental responsibility
  • surrogacy and ART
50
Q

Law reform re: family?

A
  • marriage amendment act 2004 (cwlth)
  • family law amendment (de facto financial matters and other measures) act 2008
  • relating to same sex
51
Q

Legal and non legal responses re: family

A
  • DV
  • courts and FDR
  • NGOS & media
  • failure of law to recognise same sex marriage
  • legal responses to surrogacy and birth technologies
  • care and protection of children

HSC Legal Studies (4 decks)

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