Family Law:Nature of Flashcards
PF: through contemporary examples,
students investigate the nature of family relationships and the effectiveness of the law in achieving justice
The role of the law in
encouraging cooperation with resolving conflict in regar to family
issues of
compliance and non-compliance
changes to family law
as a response to changing values in the community
the role of law reform
in achieving just outcomes for family members and society
the effectiveness of legal and non legal responses
in achieving just outcomes for family members
explains the role of law in
encouraging and resolving conflict, as well as initiating and responding to change
the family law system is designed to encourage compliance, through
family dispute resolutions, compulsory conciliation for separating couples and making parenting plans. All of these measures are designed to enable the parties involved to come to a decision that best suits their needs without the court’s involvement.
The family law system reflects the rule of law in our society in that it aims to be
child focused, thus placing emphasis on reconciliation and compliance rather than exercising control through sanctions.
Family law is designed to provide
legal protections for family members and is extremely important in society and its ability to function, as every individual comes from and is influenced by their family. . Furthermore families constitute the fundamental units of society and provide support for children and spouses both socially and financially thus, the family law plays an extremely important role in attempting to resolve conflict so the wellbeing of individual’s is not severely impacted by issues/problems that can arise in family relationships, as this can have negative implications for broader society.
Overtime the concept of family has significantly altered and the family law has had to
respond to these changes in a way that maintains its focus on encouraging and resolving conflict.
definition of family
by ABS: ‘two or more persons… who are related by blood, marriage (registered or defacto), , adoption, step or fostering and who are usually resident in the same household.’
Types of families
- Nuclear (husband, wife +children)
- Blended( married/defacto couples w. children from previous relationships)
- Couples w/o children
- Defacto (w/ w/o children, not married)
- Extended (other relatives in same house)
- Single parent
- ATSI customary law marriages
- Same Sex (w/ w/o children)
Discuss the difficulty of defining family and the changing concepts of family
The concept of family, once largely considered as only nuclear, has evolved with Australian society. They now also can include of blended, de facto, single parent, same sex, extended and ATSI customary marriages. Even the Family Law Act 1975 (Cth) does not offer a definition, only describing family as ‘the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.’
Definition of marriage (which is a legally binding contract and a legal institution)
the union o f
5 Legal requirements of marriage
- Gender
- Marriageable age (18 or if btw 16 and 18 and court grants permission or need parental consent)
- Parental Consent (if under 18)
- Prohibited degrees of relationship (can’t be related by blood or other marriage)
- Notice of marriage to NSW REigstery of Births, Deaths and Marriages
- Valid marriage ceremony
- Consent
- 2 witnesses
Under what section of the Constitution does it detail the Cth’s powers to make laws regarding marriage?
S.51 states the Cth has power and authority to make laws concerning marriage and divorce
Marriage Act
1961 (Cth)
Marriage Act 1961 (Cth)
considered conformity with the Hyde v Hyde and Woodmansee case (1866, UK), defining marriage as the ‘voluntary union for life of one man and one woman, to the exclusion of all others.’
Marriage Amendment Act 2004 (Cth)
provided a formal definition of marriage in legislation:
‘voluntary union for life of one man and one woman, to the exclusion of all others, voluntarily entered into for life.’ ruling out possibility of same-sex marriage through its specificity as well as making any same-sex marriages entered into in other jurisdictions invalid
Where are the majority of alternative family relationships dealt with
by the state, not federal legislation and this can disadvantage parties
ATSI customary marriages
don’t conform to Hydge v Hyde and Woodmansee (1866) definition or Marriage Amendment Act 2004 (Cth)
- —> often arranged by elders
- —> polygamy still practiced
- —>entered into and bound by customary law
- —>not recognised as marriage under Australian law, only as defacto as they aren’t married according to rules of Marriage Act 1961 and the marriages normally aren’t legally recorded with Registry of Births, Deaths and Marriages
Before which act did a lack of legal status for ATSI customary marriages mean that parties of those relationships didn’t enjoy the same rights and responsibilities as married people with regard to property settlement?
The Family law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
The Family law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) significance for ATSI customary marriages
a lack of legal status for ATSI customary marriages mean that parties of those relationships didn’t enjoy the same rights and responsibilities as married people and didn’t have same rights to maintanence and division of property
what is the significance of The Family law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) for all De Facto couples?
it reflected a just application of the rule of law, as it gave equality before the law.
- —->de facto couples will now receive same treatment as married couples with regard to the division of property and have disputes heard in Family Court and Federal Circuit Court.
- —->Means de facto couples don’t have to go to 2 separate court systems to divide property and make arrangements regarding care of children
- –> will enable fairer and more just outcomes for all
Children in ATSI customary marriages are protected by the
Family law Act 1975 (Cth) nad the Status of Children Act (1966), and parenting orders can be given by Fam COurt if breakdown of marriage occurs and can’t reach an agreement, with the best interests of the child and special care taken to ensure the child retains a connection to their ATSI culture and heritage
What’s good about treating ATSI marriages as de facto?
the marriages would be moulded into European notions of marriage and would be inappropriate
and there would be little acknowledgement of the traditional roles of men women and children if these unions were fully recognised.
What’s bad about treating ATSI marriages as de facto?
they’re not seen as legitimate, meaning they have less social status.
How many families are single parent and what does this reflect?
15% according to ABS in 2012.
—->reflects changing social values, increased independence of women and better welfare supports
What legislation supports single parent families
Child Support (Assessment) Act 1989 (Cth) set up by Child Support Agency which uses a formula to determine amount ot be paid.
what is beneifical about the Child Support (Assessment) Act 1989 (Cth) set up by Child Support Agency?
Non-resident parents can deduct child support payments from employee’s wages ensuring parents fulfil their legal and oral obligations to support their children
Same-Sex Relationships have the same legal standing as de facto relationships as recognised by the
Property (Relationships) Act 1999 (NSW)
what other rights were afforded to Same-sex couples under the Property (Relationships) Act 1999 (NSW)?
hospital visiting rights, inheritance rights (if partner dies intestate-no will) certain decisions regarding the death of a partner can be made by other partner (ie, organ donatin, funeral stuff)
What legislation has enhanced the protections for Same sex couples?
the Anti-Discrimination Act 1977 (NSW) where discrimination on bassis of sexuality is illegal.
until what legsliation where de facto couples governed by state law?
Family Law Amendment (De Facto Financial Maters and Other Measures) Act 2008 (Cth)
couples who have lived together for 2 years are
considered to be in a de facto relationship, but not if couple ahs a child
prior to 2008, how were maintanence issues settled for de facto couples
Property (Realtionships) Act 1984 (Cth)
Before 2008 and the Family Law Amendment (De Facto Financial Maters and Other Measures) Act 2008 (Cth), what discrimination was experienced by de facto couples
INSTITUTIONALISED DISCRIMINATION
- —-> had to use state court system, – didn’t take into account future needs of separating couples, unlike in Fam court
- ——————-> was resource inefficienct: could be $$$$ and result in delays
- —->also inconsistency amongst states with how property division of de facto couples was dealt with,
Distinguish between state and federal jurisdiction
FED GOV
marriage and divorce
–children from all jurisdictions under the jurisdiction of FLA 1975
–de facto relationships now under Fed gov
– FL Amendment (De Facto Financial Matters and other Measrues) Act 2008 all financial matters for all couples in Fed system
STATES: Residual powers about other fam matters -- DV --wills, inheritance, succession --surrogacy and brith tech care and protection of children at risk of harm
3 main responsibilities Reform Act 1995 (Cth) outlines
legal rights and obligations of parents and children
all parents responsible for short and long temr care of any child in relationship.
1. provide child’s basic needs
2.Protect from harm
3. Protect others from being harmed by their child
Responsibilites for children: Care and Control
both parents must do. If not FACs can remove child/parnets prosecuted (R v BW and SW 2009)
- uncontrollable children can be made ward of state
- —Children and Young Persons (Care and Protection) Act 1998 (NSW)
- -Parents held liable for any damage/injury done by their children
Responsibilites for children: Care and Control consequences when parents don’t protect their children from harm
case of R v Ross 2014, Ross found guilty for brutal death of Baby Tanilla an mother serving a sentence for manslaughter
Responsibilities for children: Education
a right to education, as enforced by Education Act 1999, in line with CROC. A criminal offence to not enrol a child in school/provide them with access to education
Responsibilities for children: Discipline
must be reasonable and/or acceptable
— unreasonable—>Crimes Act 1900 (NSW)
Responsibilities for children: Medical Treatment
parents have to make sure child gets it if <14. If refused by parents court can authorise it.
– doctors can’t make parents aware of children>14 medical conditions— ethical dilemma
medical treatment meida articel
‘Teenage witness must have transfusion’ SMH 2015
What act gives ex nuptial children the same rights as those born within marriage>
Status of Children Act 1996 (NSW)
What did amendmetns to Status of Children Act 1996 (NSW) and Surrogacy Act 2010 (NSW) do?
gave ex nuptial children of same sex parents the same rights as those born within marriage
Adoption defintition
Adoption is the legal process of transferring parental rights and responsibilities from the biological parents to the adoptive parents.
—–state matter——-
Adoption is a state responsibility- Both parents must consent if marriage or de facto, but in the case of a single mother, only the mother must give consent to the giving up of her child.
Adoption Act 2000 (NSW).
Relinquishing parents (giving up their child) can nominate a
relative to adopt their child. They can also nominate the desired religious upbringing for their child.
Issues with adoption being a state matter
bio parents who move interstate may be unable to contact their children when they turn 18
Adoption Amendment Act 2008 (NSW) introduced
open access to info for prospective adoptions and made application process more straightforward, reducing time frames for known adoptions.
What about adoptionfor same sex couples>
Adoption Amenmdnet (Same-Sex Couples) Act 2010 (NSW) gave right to same sex couples, but some are concerned that it focuses too much on rights of adults not child ---'children raised by same sex parents speak up for traditional families'(SMH 2015)
‘children raised by same sex parents speak up for traditional families’(SMH 2015)
Adoption Amenmdnet (Same-Sex Couples) Act 2010 (NSW) gave right to same sex couples, but some are concerned that it focuses too much on rights of adults not child
Despite the Adoption Amenmdnet (Same-Sex Couples) Act 2010 (NSW what discrimination exists?
faith based adoption agenies (Anglicare, Catholic Care)can refuse to place a child with same sex couple w/o breaching Anti Discrimination Act
Non legal for adoption:
Intercountry Adoption Australia launched in 2015 (website and phone line) for fams adopting a child from overseas to help them and ensure adoption occurs in best interests of the child.
UN CROC and FLA 1975
FLA 1975 has largely incorporated principles of CROC:
– ensures best interests of child are paramount when making decisions
– incoportates notion of parental responsibitliy & chld’rs rights
FLA (SPR) A 1975 – best interests of child and shared role of parent +meaningful rlnship
FLA (FV and other matters ) Act 2011 pretects children in cases where evidene of DV
FLA (Fees) Regulation 2013 (Cth) exempts independent child’s lawyers from paying court fees reatling to
