Family Law Essay Assessment Flashcards
Question 1 Thesis Statement
In relation to the contemporary issue of the recognition of same-sex relationships, non-legal responses have often proven to be much more effective at promoting the rights of individuals and couples, upholding equality and reflecting the changing attitudes of Australian society.
Question 2 - Thesis Statement
The law has been effective in resolving many of the legal disputes that occur in family relationships, such as divorce proceedings and issues of parental responsibility. In these areas, the law is accessible, protects the rights of individuals, and on the most part meets society’s needs of amicable resolution. However, when it comes to physical conflict relating to the care and protection of children, the law is often inaccessible, and protects the rights of dangerous parents over those of their children.
Question 3 - Thesis Statement
The law ensures parental responsibility to a great extent, but only ensures the care and protection of children within a family to a certain extent. In order to be effective in matters dealing with families and children, the law must protect the rights of parents and their children, be accessible to both parties, and be enforceable by courts and other mechanisms.
Question 4 - Thesis Statement
The law has reflected changing community values to varying extents. While it has been very strong in responding to changing societal attitudes on parental responsibility and the care and protection of children, it has often lagged behind public opinion in relation to the recognition of same-sex relationships. The criteria on which laws can be judged are protecting the rights of individuals and families, ensuring that its mechanisms are accessible and the extent to which it meets society’s changing needs and attitudes.
Question 6 - Thesis Statement
Although it has often been slow to act, law reform has been the critical mechanism in moving towards just outcomes for family members and society, especially in relation to issues involving same-sex marriage, domestic violence, and the care and protection of children. In order to achieve just outcomes, law reform must protect the rights of individuals and families, be accessible for all individuals involved, and be responsive to the changing needs and attitudes of society.
Same Sex Marriage - Statute Laws
Property (Relationships) Act 1984 (NSW) - granted same-sex couples the same rights as heterosexual, de-facto relationships with regard to property
Marriage Amendment Act 2004 (Cth) - outlawed the recognition of same-sex marriages lawfully entered into in foreign jurisdictions, as well as bar any opportunity for same-sex couples to adopt
A 2007 Get-Up poll found that 71% of Australians were in favour of granting equal rights to do with de-facto relationships
Adoption Amendment (Same-Sex Couples) Act 2010 (NSW) - allowed same-sex couples to adopt children, but half of Australia’s states and territories did not legislate until after 2013
Marriage Amendment (Definition and Religious Freedoms) Act 2007 (Cth) - legalised same-sex marriage
Same Sex Marriage - Common Law
Australia’s common law definition of marriage relied on Hyde v Hyde v Woodmansee (1886)
In this case, Lord Penzance pronounced “I conceive that marriage may for this purpose be defined as the voluntary union for life between one man and one woman to the exclusion of all others”
Australia’s common law reliance on this case was criticised for a number of reasons:
- The original statement was an obiter dictum - it did not establish binding precedent - The dictum was a defence of marriage, and not a definition of it - The case represented an outdated view of marriage that did not reflect society
In 2013, the High Court unanimously determined that the ACT’s Marriage Equality (Same-Sex) Act was unconstitutional, as it was inconsistent with federal law
This decision voided the 31 marriages that had already taken place in the ACT
Same Sex Marriage - Non Legal Responses
The Media & Advocacy Groups
Australian Marriage Equality was an advocacy group that allowed the recognition of same-sex relationships in the public discourse
They promoted the rights of same-sex couples through organising protests, polls, and running advertising campaigns to inform Australians
Media organisations like Sixty Minutes have also proven effective at shaping the public conversation on same-sex marriage
The Postal Vote:
It promoted equality, as all Australians could have their say on the issue, meaning that it would truly reflect the changing needs of society
The postal vote also protected the rights of same-sex individuals from freedom from discrimination, as it did not present the opportunities for targeting like a plebiscite would have done
Ultimately, the postal vote resulted in an 80% turnout with 61.6% in favour of SSM
Australian Human Rights Commission:
In 2007, the AHRC report, Same Sex: Same Entitlements, recommended amending federal laws that discriminated against same sex couples and their children in the areas of financial and work-related entitlements and benefits
In response, the government amended 84 commonwealth acts in 2008 to eliminate differential treatment of same-sex couples
Divorce Laws
Matrimonial Causes Act 1959 (Cth) - established that divorce could only be sought on the grounds of ‘fault’ such as adultery, habitual drunkenness or cruelty
“You’d hire a private investigator to spy on your spouse,” - Professor Swain of the Australian Catholic University.
This desire to “punish” a party by attributing blame to the “sinner” was deeply rooted in religious principles underpinning marriage at the time.
“It’s a very moralistic approach to marriage and one that by the middle of the 20th century was out of sync with the vast majority of the population,” Professor Swain says.
Family Law Act 1975 (Cth) - removed all other grounds for divorce and established the Family Court, which hears all matters related to marriage and divorce
Now the only grounds for divorce is “irretrievable breakdown of a marriage”
In order to prove that the relationship had irretrievably broken down, the parties must have been living separately and apart for a period of 12 months
The Act allows for one period of reconciliation of up to three months during the period of separation, under section 50 (the ‘kiss and make-up clause’)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - introduced compulsory mediation before the parties can seek a divorce order
If the couple has children, no application for divorce will be approved until the court is satisfied that there are proper arrangements in place for the care of the children
With the introduction of no-fault divorce, the crude divorce rate peaked in 1976 at 4.6 per 1000 residents, but has been declining ever since and was 2.0 in 2017
In approximately 95% of separation cases, families are able to avoid Family Court resolutions
Parental Responsibility Laws
Sharing of Responsibilities
Part VII of the Family Law Act 1975 (Cth) - ensures that the best interests of children is the chief factor courts must take into consideration when parents separate
Family Law Reform Act 1995 (Cth) - established that parents should “jointly share duties and responsibilities concerning the care, welfare and development of their children”
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Act - develops primary (meaningful relationships with both parents, protection from abuse and violence) and secondary (child’s wishes, financial ability and ability to provide for intellectual/emotional needs) considerations
60% of agreements involve the child spending more time with the mother, but advocacy groups such as the Lone Fathers Association exists to counterbalance this
Parenting Plans
Family Law Reform Act 1995 (Cth) introduced parenting plans, which are written agreements voluntarily agreed to by parents that deal with the child’s care and welfare
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - introduced compulsory mediation between disputing parent and established 65 Family Relationship Centres to encourage amicable resolution
This has been effective, as parenting orders only have to be imposed in 5% of cases
Child Maintenance
The child support scheme was introduced in 1988 in response to concerns about the adequacy of court-ordered child maintenance and the difficulties that existed in the collection of maintenance in Australia
There were also concerns about the poverty of women and children following separation and divorce and the increasing government expenditure for maintaining children where the other parent did not contribute towards their upbringing
Child Support (Registration and Collection) Act 1988 (Cth) - shifted the collection and enforcement of child support from the courts to an administrative system
Child Support (Assessment) Act 1989 (Cth) - introduced a formula for the calculation of child support owed, again using an administrative rather than judicial procedure
Reforms have been effective - in 2008/09, the Child Support Agency reported 70% satisfaction with services and less than 10% of individuals not fulfilling obligations
Care and Protection of Children
Reporting Mechanisms:
The 2007/08 Wood Inquiry into the child protection system recommended systems of mandatory reporting
Teachers, doctors, nurses and other professionals must report to community services if they believe that there is a risk of harm from family violence and abuse
Since mandatory reporting was implemented, the number of ‘at risk of harm’ reports made to Community Services has steadily increased
Between 2012/13 - 2016/17 the number of reports increased by 39%, and the total number of substantiated reports increased by 27%
Around 50% of notifications of child abuse are investigated
Domestic Violence:
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), - the equal presumption of shared parental responsibility does not apply “if there are reasonable grounds to believe that a parent of the child… has engaged in abuse of the child”
In cases involving domestic violence, parents may apply for parenting orders without first attending family dispute resolution
The Magellan Program was created by the Family Court to deal with such cases in less than six months to determine an appropriate parenting order
Criticised for not dealing adequately with family violence, exposing children to the possibility of further abuse
In 2015, 79 children who had previously been reported to Community Services as being at risk of significant harm died at the hand of their abusive parent or carer
A sad example of this was the death of eleven year-old Luke Batty, who was murdered by his father in 2014 - although the family had obtained an intervention order, this was overturned by a court which granted him access to his son when playing sports
Protecting Parents & Children:
Child Protection Legislation Amendment Act 2014 (NSW) focuses on the safety and wellbeing of a child or young person in the case of family conflicts
In accordance with ‘permanent placement principles’ (s10A) when parents are unable to fulfil their legal obligations, child protection authorities investigate adoption or placing the child in temporary foster care - care and protection order
Courts have the power to force parents to undergo treatment to deal with issues, such as alcohol or drug addictions under a ‘parent capacity order’
In 2019, the Australian Institute of Health and Welfare reported that nationally nearly 159,000 children received child protection services
During 2014-15, there were 57,861 children on care and protection orders
While this indicates a greater accessibility and awareness of rights, it also indicates that support and counselling services provided to perpetrators have not been successful in modifying their abusive behaviours
