FAMILY LAW: STUDY NOTES
FAMILY LAW What are the family structures how does their recognition and protection vary under the law:-
Form Marriage
De Facto
Same Sex Couples
Definition ‘voluntary union for life of one man and one woman to the exclusion of all others’ Act as a married couple but are not actually married
Use your imagination.
Customary Traditional Marriages marriages between Aboriginal/T.S peoples
Polygamo us
Having more than one spouse
Single
Single parent
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Jurisdiction Under Federal legislation
After two years of cohabitation they are recognised under state leg. Future needs are not considered upon dissolution. For many purposes protected the same as heterosexual defacto couples. Exceptions include adoption. NSW leg. Not recognised. Although upon breakdown protected by state de facto legislation
The first marriage is recognised under normal fed. Leg. Not specific –
Legislation Marriage Act 1961 (Cwlth) Family Law Act
Property (relationships) Act 1984 (NSW)
Property (Relationships) Legislation Amendment Act 1999 (NSW)
None – the Aust. Law Reform Commission recommended that for specific purposes cust. Marriages should be recognised. Marriage Act 1961 (Cwlth)
Anti-
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FAMILY LAW: STUDY NOTES
parent
families – 5:1 = females to males
Blended Families
Step family
issues such as Discrimination discrimination Act 1977 based on (NSW) family status = NSW Kids = fed. Family Law Their claim to Reform Act step-parents 1995 (Cwlth) estate = NSW re. equal care of kids/ step kids
The law has a strict definition and requirements of valid marriages: The definition is provided by Hyde V Hyde and Woodman (1866). It is also in the Family Law Act and Marriage Act. ‘The union of a man and a woman to the exclusion of all others voluntarily entered into for life’. A valid marriage must have fulfilled the following requirements: Marriageable age and parental consent Marriageable Prohibited degrees of relationship Notice of marriage – at least one months warning This is done for several reasons. 1. To protect the sanctity of marriage – to reflect society’s values of marriage. 2. The notice of marriage to ensure that it is not rushed 3. Marriageable age – to ensure that the couple are old enough to ‘know what they are doing’ – and thus don’t end up divorced 4. To protect the members and the kids of the marriage (i.e. against incest) and society’s values What are the legal rights and obligations between parents and children:Child-care/control The 1995 Family Law Reform Act 1995 (Cwlth) stipulates that both parents are responsible for the short and long-term care of their children, unless there is a court order to the contrary. It also changed the terminology to reflect a change in mentality – focusing on parental responsibility responsibility rather than parental rights. The law will only intervene when a child has been abused, neglected or is uncontrollable. Child welfare authorities have the power to remove a child from the home if they suspect improper care. The Children and Young Persons (Care and Protection) Act 1998 (NSW) 2
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empowers the Children’s Court to remove the child. It also broadened those legally required to report suspected abuse. Children have a right to receive education Children have a right to receive health care up to age 14. Parents have a right to discipline their children – it must however be reasonable. Inheritance: if a dependent child is excluded from a parent’s will, the Family Provision Act 1982 (NSW) can insist in adequate provision provision of the child from the sill. International Obligations Australia is a signatory to the United Nations Convention on the Rights of the Child – Child – ratified it in 1990. The Family Law Reform Act 1995 was drafted with specific intention of including the convention – especially in the ‘best interest of the child’ Birth Technology The Artificial Contraception Act 1984 (NSW) Status of Children Act 1996 (NSW) covered paternity and the status of children conceived artificially. artificially. Ethics committees attached to IVF clinics address many of the concerns as the law is largely slow to change and not comprehensive. In 1988 the National Bioethics Consultative Consultative Committee was established to inform state and federal government about advancements. Adoption Adoption Act 2000 (NSW), focusing on adoption that is primarily a service to the child. The NSW Law Reform Commission reviewed the Adoption of Children Act 1965 (NSW) in 1997. It proposed reforms such as open adoption. Ex-nuptial children The Children (Equality of Status) Act 1976 (NSW) gave ex-nuptial children the same rights as other kiddies. Problems in Family Relationships:Domestic Violence Domestic Violence is 98% against women. A 1991 study by the Domestic Violence Committee revealed that one third of Australian responders stated that they believed that domestic violence was a private matter. Legal services available for victims such as the Domestic Violence Advocacy Service Legal actions to protect victims – ADVO’s, interim orders, criminal assault charges
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To increase effectives since the Crimes Amendment (Apprehended Violence) Act 1999 (NSW) police must record why they didn’t initiate criminal proceedings proceedings in relation to a reported breach of an ADVO. Legislative Responses: Crimes (Domestic (Domestic Violence) Amendment Act 1982 (NSW) introduced ADVO’s. Ineffectiveness illustrated illustrated by deaths of Andrea Patrick in 1983, Jean Lennon in 1996 and Irene Davis in 1997 despite their having ADVO’s against their killers. Difficult to enforce. To some extent there is still a cultural acceptance of domestic violence. Police have also been reluctant to get involved in domestic violence situations. Divorce The Family Law Act 1975 established just the one ground for divorce – ‘irretrievable ‘irretrievable breakdown’. Upon the dissolution dissolution of marriage marriage (and the end of a de facto relationship) there are several aspects which must be considered.
Division of Property As evidenced in Hohol V Hohol, non-financial contributions contributions are considered in both marriage and de facto relationships Residence of children and child maintenance Parenting plans are established by the partners to establish who will have residence of the children. It should be noted that it is the responsibility responsibility of both parents to look after their children. Spousal Maintenance If one spouse cannot support themselves, and the other is able to, then they will be required to pay a form of maintenance. In de facto couples this varies and is uncommon. uncommon. It exists on certain conditions for a maximum of three years (for example if the spouse is caring for an intellectually or physically disabled child of the relationship). relationship). Parenting Plans Parenting Plans are agreements between parents covering arrangements regarding who the kids will live with who the kids will have contact with maintenance arrangements any other aspects or responsibility If the parents cannot work it out and submit it to the court, then a parenting order will be imposed by the court. They can be requested by the child and anyone concerned about the child’s welfare. 4
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The Family Court of Australia: The Family Court of Australia was introduced in 1975. It provides counselling and adjudications. adjudications. The jurisdiction jurisdiction of the Family Court is limited by the Constitution and cross-vesting restrictions. It does not hear matters concerning child welfare unless it is directly related to the dissolution of marriage or de facto relationship. How effective is family law in i n protecting the needs of the individual:Equality: the limit of protection the individual receives under the law is determinate on their family status. For example de facto couples are not entitled to the same extent of protection as are married couples. Aboriginal customary customary marriages do also not receive the same degree of protection. The Family Law system has made great gains in increasing gender equality, for example no the non-financial contributions contributions are considered, although it can be noted that (upon dissolution) dissolution) the resulting single-parent family is more likely to be towards the poverty line. This is often (although by no means always) headed by the female partner. The no fault divorce also assisted in making the family law more equitable as with regard to gender. Children are now recognised as being more vulnerable members of the community, with the Family Law Reform Act 1995 (Cwlth). Accessibility De facto couples are not entitled to Family Court Accessibility De counselling services unless they have children. Thus their accessibility to this dispute resolution mechanism is limited. De facto couples with children must also face two jurisdictions. For example if they have children and the matter concerns child support, then that will be heard under federal jurisdiction. For the matter of property settlement however, it must be heard under state legislation. legislation. This affects the accessibility accessibility that individuals receive, particularly particularly in relation to time and money and is evidenced in the media article Double Trouble for De Factos SMH 19/06/99. Legal aid is available to assist in an individual’s access to the family law system To reduce the time and cost of family court hearings, governments have sought to include measures such as the use of primary dispute resolution resolution and the Federal magistrates scheme, contributing to the 95 % of family law cases settle out of court. Enforceability: ADVO’s have come under criticism after the deaths of Jean Lennon and others, and also due to police reluctance. This has been improved under the Crimes Amendment Act (Apprehended Violence) Act 1999 (NSW).
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Likewise the area of child support has been difficult to enforce. The Child Support (Assessment) Act 1989 (Cwlth) was introduced to remedy the 40 % of claims for child maintenance maintenance that were not being met. A child may also apply for a maintenance order under the Family Law Reform Act 1995 (Cwlth). They can also take out ADVO’s. If a parent defaults on the parenting plan, they can be charged with contempt of the court. In regard to child neglect/abuse, it is base on the standard of proof that it is ‘highly probable’ that the child is under threat. Court orders can remove a child from the situation of compel the parent to undergo ‘parenting classes’. How effective is family law in i n protecting the needs of society:Resource efficiency the efficiency the movement to a focus of alternative dispute resolutions resolutions was designed to achieve greater resource efficiency and reduce time and delays. An example of such legislation is the Family Law Reform Act 1995 (Cwlth). The overlap of jurisdictions and the elimination elimination of cross-vesting (the Wakim case 1999) have resulted in a compromise of resource efficiency. For example, a de facto couple with children must go through both courts, with increased costs and time. Standards reflected in Law the degree to which effective law reform takes place can be seen to be a measure of how well the law reflects social changes. Issues that confront community standards include same sex marriages and birth technology; the law must reflect the majority of the community’s values. It can be seen in the areas that the law has changed that changing community community values marry with the legal system. An example can be seen the 1975 no fault divorce legislation, and also legislation regarding domestic violence. Appeals and Review the parties have a right to appeal if they find their needs are not being met. Balancing individual rights with community rights Domestic violence: A partner may believe it is their right to punish their spouse, chid, (beyond reasonable force) however society does not deem it as appropriate – thus the rights of society are imposed on the individual. Children: the welfare of children was previously held to be of less importance than society’s rights, however now the law acts ‘with the best interests of the child’. How does law change:-
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Law reform takes place through the courts through new precedents and through the parliament. The parliament is influenced by the following bodies: NSW/Australian Law Reform Commission Government Departments Departments – eg – DOCS Lobby Groups HREOC Royal Commissions Why does law change:Changing social values and demographics Eg. Recognition of other relationships, including same sex relationships Eg. dissolution of marriage – now no fault Eg. Greater protection of children Eg. Domestic violence Changing technology E.g. Birth technology – IVF, surrogacy Failure of existing laws E.g. The laws on adoption To meet international requirements E.g. the 1995 Family Law Reform Act to meet with the Rights of the Child Convention
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