the nature of family law

Question 1

what is family law?

Answer 1

family law an area of law that deals with family matters and domestic relations, including areas such as divorce, separation, children, parenting arrangements, property and financial matters

Question 2

why is it difficult to define a ‘family’?

Answer 2

it is difficult to define a family as social and community values change continuously; today, the traditional ‘nuclear family’ of married male and female with children, living under the same roof, only represents around 30% of Australian households; as a result of this, a ‘family’ is now broadly defined within family law as ‘two or more people residing together joined by marriage, birth or adoption’

Question 3

what are some alternate definitions of ‘families’ that are recognised in Australia today?

Answer 3

• Aboriginal and Torres Strait Islander families
• de facto relationships
• blended families
• extended families
• same-sex marriages

Question 4

what is a de facto relationship?

Answer 4

a de facto relationship is a relationship where partners act as a married couple but are not legally married

Question 5

what is a blended family?

Answer 5

a blended family is a family that is created when a parent remarries; it includes a stepmother or stepfather and children

Question 6

what is an extended family?

Answer 6

an extended family is a family that includes individuals related through marriage or parentage and not limited to one couple and their children; in some cultures, close family friends are regarded as members of the extended family

Question 7

what is a same-sex marriage?

Answer 7

a same-sex marriage is the legal union of two members of the same-sex, which was legalised in Australia by way of referendum in December 2017

Question 8

what are state and federal laws regarding families?

Answer 8

the Australian Constitution gives jurisdiction to the federal government to govern over marriage and divorce; whilst initially only state parliaments could pass legislation about divorce and de facto relationships, most (including New South Wales) have now referred their powers to the Commonwealth

Question 9

what is the legal definition of marriage?

Answer 9

marriage is defined under the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’

Question 10

what are the legal requirements of marriage?

Answer 10

• marriageable age
• prohibited relationships
• notice of marriage
• void marriages

Question 11

what does ‘marriageable age’ refer to as a legal requirement of marriage?

Answer 11

in a marriage, both parties must be of a marriageable age, meaning at least 18 years of age, or between 16 and 18 with a prior application to a judge or magistrate for an order authorising the marriage

Question 12

what do ‘prohibited relationships’ refer to as a legal requirement of marriage?

Answer 12

a person cannot marry if they are married to someone else, nor anyone who is closely related either by ‘blood’ (consanguinity) or by marriage (affinity), therefore, one cannot marry their descendant, ancestor, or sibling; however, one can marry their uncle, aunt, niece, nephew, or first cousin

Question 13

what does ‘notice of marriage’ refer to as a legal requirement of marriage?

Answer 13

a couple intending to marry must complete a Notice of Intended Marriage form and give it to the authorised marriage celebrant to conduct the ceremony, no earlier than 18 months before the marriage; this notice must include proof of each party’s age, usually through a birth certificate; after the ceremony is completed, the celebrant issues a marriage certificate

Question 14

what do ‘void marriages’ refer to as a legal requirement of marriage?

Answer 14

marriages are declared ‘void’, or invalid, if they do not meet the definition of marriage, including by consent not being freely given by both parties, if one party is already married to someone else, if one or both parties are too young, if the parties are too closely related, or if the marriage does not meet the requirements set out in the Marriage Act 1961 (Cth)

Question 15

what are the legal responsibilities of parents / rights of children?

Answer 15

parents should:
* provide adequate food and shelter
* protect their child from abuse or neglect
* provide access to education
* provide discipline
* provide medical treatment

Question 16

what does a child’s right to education refer to?

Answer 16

parents cannot refuse their child an education, but can choose where their child is educated; 2009 amendments to the Education Act 1990 (NSW) make it compulsory for children to receive education between the ages of 6 and 17; if a child has completed Year 10 but is not yet 17, they can leave school if they receive outside education, training or employment until the age of 17

Question 17

what does a child’s right to discipline refer to?

Answer 17

parents have the right to discipline their child by using physical force, as long as it is ‘reasonable, having regard to the age, health, maturity or other characteristics of the child, [and] the nature of the alleged misbehaviour or other circumstances’ as stated in the Crimes Act 1900 (NSW); in NSW, what is deemed ‘unreasonable’ force is declared corporal punishment under the Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001 (NSW)

Question 18

what does a child’s right to medical treatment refer to?

Answer 18

parents are responsible for ensuring that appropriate medical and dental care is available to their child, however, consent must be given out before a doctor can carry out treatment; for children under 14 years, parents must give consent for medical treatment, and they have the right to authorise any treatment that they believe is in their child’s best interests; for children aged between 14 and 16, consent can be given either by a parent or by the child, and if aged 16 or 17, the child must consent; courts can authorise treatment for children if the parents refuse it on any grounds (eg. religious)

Question 19

what are the obligations of separated parents?

Answer 19

under the Family Law Act 1975 (Cth), it is a necessity that the ‘best interests’ of the child are met in instances of parents separating; the ‘best interests’ of a child refer to:
* the opportunity to maintain a meaningful relationship with both parents
* protection from harm, including neglect and abuse
* proper parental care

Question 20

what are the rights of separated parents and their children?

Answer 20

• children have the right to know and be cared for by both parents
• children have the right to spend time and communicate on a regular basis with both their parents, and other people significant to their care, welfare and development
• parents jointly share duties and responsibilities concerning the care, welfare and development of their children
• parents should agree about the future parenting of the children
• children have the right to enjoy their culture

Question 21

what is adoption?

Answer 21

adoption is a state responsibility and in NSW is governed by the Adoption Act 2000 (NSW); in the last 30 years, the rates of adoption have fallen dramatically, as a reflection of changing societal values, in which, traditionally, unwanted teenage pregnancies were kept secret and frowned upon- over time, improvements in birth control and technologies, along with changing attitudes towards ex-nuptial children and long waitlists have contributed to declining adoption rates

Question 22

what must biological parents do in terms of adoption?

Answer 22

both biological (relinquishing) parents must give consent for adoption, and there is a 30-day period in which they can change their minds; a single mother however, the father must have been notified prior to the adoption and be given 14 days to respond; a birth mother cannot give consent to adoption within three days of her child’s birth; if the child’s parents cannot or are found incapable of consenting to adoption, a court can do so

Question 23

how does overseas adoption work?

Answer 23

inter-country adoptions are governed by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), and by bilateral agreements between Australia and countries that have not ratified the convention