Family Flashcards
Family
Refers to “two or more persons… Related by blood, marriage, adoption, step or fostering…” - ABS
Marriage
“Union of man and woman to the exclusion of all others, voluntarily entered into for life” - Hyde vs Hyde 1866
Law establishing legal requirements of marriage
Marriage act 1961 (cwlth)
Requirements of marriage?
Age, gender, consent, prohibited degrees of separation, previous marriage, notice of intention to marry
Legal and non legal consequences and responsibilities following marriage:
- 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
Succession act 2006
Established that all property will transfer to surviving spouse in case of spousal death without a will
Alternative family relationships? eg?
Increasing prevalence of familial relations which do not conform to traditional definition of nuclear family eg. Single parent, blended, same sex, de fact, polygamous
Family law amendment (de facto financial matters and other measures) act 2008 (cwlth)
Same sex and de facto couples nationally were given equal treatment in financial matters
Which legislation gave de facto equal financial rights on separation as married couples?
Property (relationships) act 1984 (Nsw)
De facto
Two people living in an unregistered relationship
Family law reform act 1995
Established that children have rights and parents; responsibilities
Children and young persons (care and protection) act 1998 (Nsw)
Allows for external intervention where child is perceived to be at serious risk of harm
How does FLA reflect principles of CROC in domestic law
- 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
Domestic rights and obligations regarding children
- 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
What act is adoption governed by? 2010 amendment?
Adoption act 2000 (Nsw).
2010 amendment allowed same sex couples to adopt children in same manner as other couples and individuals
How has divorced changed over time?
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
Requirements of divorce
- 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.
Family law reform act 1995 (cwlth)
Created notion of equal, shared responsibility and need to protect children from unacceptable risk of violence
Kennon and kennon 1997 case
Established DV as negative contribution to be taken into account with property division
Difference between parental plan and order
Plan: achieved through private negotiation
Order: legally binding through courts
Child maintenance?
Payment from one spouse to another to maintain their child until age of 18
How can division of property be facilitated?
- private financial arrangements
- family dispute resolution
- family court
DV?
Physical, sexual. Emotional, psychological, financial or other abuse offender has committed in domestic relationship
Battered woman syndrome?
Psychological paralysis where victim becomes so depressed that they are incapable of leaving abusive situation > stays with abuser and continues cycle of DV
ADVOS?
Apprehended domestic violence orders; orders legally requiring perpetrator to not approach individual at risk otherwise, perpetrator would face serious criminal liability
Family law act 1975: re: DV
Protects children from DV by preventing abusive parents from gaining custody of children
What act established ADVOS?
Crimes (Domestic and Personal Violence) Act 2007
Federal response to DV
- protection of children (Family law act 1975)
- DV as negative contribution in property division
State response to DV
- ADVOS
Definition of family law
Body of law which governs relationships between family members and established rights and responsibilities with which families are endowed
Family dispute resolution
Methods of resolving disputes independent of the court system, including meditation, conciliation and counselling
Federal courts have jurisdiction over family law matters including:
Divorce and division of children and property after separation
Jurisdiction of state courts re: family matters
- wills, inheritance, succession
- adoption
- DV and ADVOS
- surrogacy and birth technologies
- care and protection of children
Advantages/ disadvantages of FDR
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
Role of NGO re: families. Types of NGOs?
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
Lobby groups re: Family. Aim and example.
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
Role of media re: family?
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
Example of success of media re: family
Establishment of NSW Domestic Violence Death Review Panel came directly affect wide media publicity of DV death of Melissa Cook and Others
Surrogacy Act 2010 (NSW) re: homosexuals
No discrimination against homosexual couples in non-commercial surrogacy arrangements
Family law amendment (shared responsibility) act 2006 (cwlth)
est. principle of ‘equal shared parental responsibility’ and led to more shared care agreements between parents
Change in laws & values over time re: parental responsibility
- initially, parents seen to have right to custody over their children, idea which ended with 1995 amendment to FLA
Evaluation of current law; re parental responsibility
- more children are spending substantial time with both parents (16% in 2009>9% in 2003)
- fewer matters re: responsibility of children going to court
Criticism re: parental responsibility
- 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
Benefits of surrogacy
- 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
Negatives of surrogacy
- child becomes commodity
- surrogate reduced to baby producing machine
- exploitation of poor
Safeguards of surrogacy:
- 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
Role of law in encouraging cooperation and resolving conflict:
- 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
Compliance and non compliance re: family
- payment of child maintenance (only 50% parents pay on time and in full)
- ADVOS
- illegal overseas commercial surrogacy arrangements
Changing values in fam law?
- 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
Law reform re: family?
- marriage amendment act 2004 (cwlth)
- family law amendment (de facto financial matters and other measures) act 2008
- relating to same sex
Legal and non legal responses re: family
- 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
