The Nature of Family Law

The Concept of Family Law

• The concept of family law includes the laws and institutions that govern
  • Marriage
  • Alternative family relationships (e.g. de facto)
  • Legal rights and obligations of parents and children
  • Divorce (including its consequences for children and property)
  • Legal ways of dealing with domestic violence
  • Same-sex relationships
  • Surrogacy and birth technology
• Society places obligations upon people in different family arrangements to ensure that all members of families have legal protection.

Difficulty in Defining ‘Family’

• In contemporary society there are many different kinds of personal relationships which are regarded as a family
• The Family Law Act 1975 defines ‘family’ as “the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children”
• Despite difficulty in defining its parameters, the family is still regarded as the basic unit of society

Changing Concepts of Family

• The traditional concept of a family consists of a married man and woman with children (the ‘Nuclear Family’)
• However, the notion of what constitutes a family has undergone substantial change over the last 30 years as society itself has evolved
  • The ‘Nuclear Family’ - 46% of families in 2006
  • Couples without children - 38% in 2011
  • De facto couples - 15%
  • Single parent families - 22% in 2011
  • Same-sex couples - 20,000 in 2001
• Children in these families can be
  • Naturally conceived of both adults in the marriage
  • Ex-nuptial (conceived outside marriage) - 34% in 2008
  • Related to only one of the adult couple
  • The product of artificial reproductive technologies
  • Foster children
  • Adopted
  • Stepchildren
• The ABS defines ‘family’ as “two or more persons…who are related by blood, marriage (registered or de facto), adoption, step or fostering, and who are usually resident in the same household”
• This definition indicates that many different types of families now exist.

Legal Requirements of Marriage

• The legal definition of marriage is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” (Hyde v Hyde 1866)
  • This definition is now contained in the Marriage Act 1961 (Cth)
• ‘2 people’ has replaced ‘a man and a woman’
  • A same-sex relationship was not considered legally binding in Australia until 2017.
  • The Howard government passed the Marriage Amendment Act 2004 (Cth) to make sure the definition of marriage did not include same-sex couples.
  • However, transgender people who had gender reassignment surgery and a new birth certificate were legally considered their preferred gender (see Kevin 2001).
  • In 2017, the Turnbull government passed the Marriage Amendment (Definitions and Religious Freedoms) Act in response to the 2017 postal survey.
• ‘To the exclusion of all others’
  • Australian society is monogamous (not polygamous)
  • Being married to more than one person at a time is a crime called bigotry
  • However, adultery is not against the law
• ‘Voluntarily entered into’
  • No person can be forced to marry under duress or fraud e.g. DiMento v Visalli 1973
  • Arranged marriages are not permitted in Australia e.g. Kreet v Sampir 2011
  • Under the Crimes Legislation Amendment (Slavery, Slave-like Conditions and People Trafficking) Act 2013 it is now a crime to coerce someone into marriage
• ‘For life’
  • This expresses the intention rather than the actuality of marriage in Australia
  • Divorce is available on the grounds of an “irretrievable breakdown of marriage” (Family Law Act 1974 Cth)
• Other requirements outlined in the Marriage Act 1961 Cth
  • Marriageable age
    • People can legally marry at 18
    • Special permission to marry at 16 may be sought from a court - this will only be granted in exceptional circumstances (e.g. pregnancy) and usually only with parental consent
  • Prohibited degrees of relationship (consanguinity)
    • A person may not marry their descendant ancestor, brother or sister (full-blood and half-blood siblings)
    • An adopted person may not marry their adoptive descendant, ancestor, brother or sister
  • Notice of marriage
    • Parties who wish to marry must give at least 1-month notice of their intention to the celebrant
  • Valid marriage ceremony
    • 2 witnesses who appear to be over 18
  • An authorised marriage celebrant
• The marriage certificate is the legal proof that the ceremony was conducted according to the law

State and Federal Jurisdiction

• The Australian system is fragmented, & serious issues occur regarding whether state or federal courts have jurisdiction to hear & make laws on certain matters

Federal Jurisdiction

• Under the Australian Constitution the federal government has jurisdiction over marriage and divorce
• Under the Family Law Act 1975 Cth they have jurisdiction over guardianship, custody and the maintenance of children
• The Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 Cth gives the federal government jurisdiction over de facto relationships and breakdowns (since 2008 when all states except WA referred their powers)

State Jurisdiction

• State’s residual powers include jurisdiction over same-sex couples (such as registration of relationships as a civil union)
• This power has been controversial because the federal government still retains jurisdiction over marriage.
• The ACT passed the Marriage Equality (Same-Sex) Act 2013 thinking that the federal government, under the Constitution, was not allowed to pass laws about same-sex marriage. However, the High Court decided in Australia v ACT 2013, that the federal government’s powers in the Constitution applied to all marriages, and the ACT Act could not operate concurrently.
• States also have jurisdiction over
  • Alternative family relationships
  • Adoption
  • The care and protection of children who are at risk of harm and the Children’s Court
  • Surrogacy and birth technologies
  • Wills, inheritance and succession
  • Criminal law, including many aspects of domestic violence

Alternative Family Relationships

ATSI Peoples’ Customary Law Marriages

• A marriage entered into according to tribal custom rather than the rules set out in the Marriage Act 1961 Cth
• Not recognised by Australian law & usually treated as de facto relationships
• Do not comply with the legal requirements of a marriage - girls under 18 marry & they may not be entirely voluntary
• Special provisions are made for children of such marriages - the Family Court must consider any need to maintain a connection with the lifestyle, culture & traditions of ATSI peoples when determining what is in their best interests
• Recognition of Aboriginal Customary Laws (ALRC Report 31) 1986

Single Parent Families

• There has been a huge increase in families headed by a lone parent - 18% of mothers, 4% of fathers (AIFS 2013)
• This increase can be attributed to
  • The increased divorce rate
  • The change in social attitudes making unwed mothers more socially acceptable
  • Greater financial independence of women
  • Increased government assistance for such families
• Families become headed by single parents due to
  • Divorce or separation - 66%
  • Decision - 27%
  • Death - 7%

Blended families

• Married or de facto couples with children from previous relationships
• The law treats the spouses according to their marital status, however the stepfather or mother does not have the same rights or responsibilities for the children of their partner

Same-sex relationships

• Same-sex couples were not recognised by the law at all until amendments were made to the De Facto Relationships Act 1984 (renamed the Property (Relationships) Act 1984 NSW) to include them as de facto relationships
• Under the Family Law Amendment (De Facto Financial Matters and Other Measures) ACT 2008 Cth, same-sex couples are now treated in the same way in financial matters as de facto and married couples

Polygamous marriages

• Polygamous marriages are not permitted in Australia, however in some countries they are recognised - e.g. Sweden, India, Singapore
• A party to a polygamous marriage made in another country can apply to the Family Court for divorce, property settlement & family orders etc.

De facto relationships

• When two adults live together as a married couple though they are not legally married
• The definition of a de facto couple can vary depending on the law which is operating. Under the Family Law Amendment (De Facto Financial Matters and Other Measures) ACT 2008 Cth the title applies to any of the following
  • A relationship that has existed for an aggregate, but not necessarily continuous, period of 2 years
  • There is a child of the relationship
  • A party to the relationship can establish a substantial contribution to the relationship that would result in serious injustice if they were to be denied the opportunity to bring proceedings under the Act
• De facto relationships have increased over the last 40 years - from 0.6% in 1971 to 15% in 2006
• Professor Parkinson (USYD) claims that de facto boundaries are expanding & this is paving the way for a redefinition of marriage

Legal Rights and Obligations of Parents and Children

Rights Derived from International Law

• The main international treaty for the care and protection of persons under 18 years is the UN Convention on the Rights of the Child (UNCROC) 1989
• The four basic principles of UNCROC are
  • Non-discrimination
  • The best interests of the child
  • The right to life, survival and development
  • The right to have views expressed and respected
• Australia ratified UNCROC in 1990 and has incorporated the treaty into Australian law in a limited way
  • The Convention has been made an ‘international instrument’ under the Australian Human Rights and Equal Opportunity Act 1986 Cth
  • This means that breaches of UNCROC can be reported to the AHRC, but Australian courts cannot enforce its provisions
  • However, Australia has allowed the states to implement legislation that reflects Article 3, that the best interests should be a primary consideration in decisions concerning children
• Under the Convention, Australia reports regularly to the UN Committee on the Rights of the Child (CRC)
• The CRC Report Concluding Observations on Australia’s Combined Second and Third Reports (2005) expressed concern about
  • Disadvantages faced by indigenous children, including their overrepresentation in juvenile detention
  • Corporal punishment being permitted in the home
  • The increase in homelessness among young people
  • The detention of children in immigration detention centres
• The Australian government responded by amending laws in 2005 about the detention of children in immigration facilities to being a measure of last resort

Parental Care

• The Family Law Act 1975 Cth outlines specific requirements of parental responsibility, primarily what the bests interests of the child includes
  • Meaningful involvement of both parents
  • Protection from harm and abuse
  • Adequate and proper parenting
• The Family Law Act 1975 Cth has seen various reforms, including
  • The Family Law Reform Act 1995, which addressed the issue of shared responsibility by introducing parenting plans
  • The Family Law Amendment (Shared Parental Responsibility) Act 2006 Cth, which addressed the right to meaningful family relationships and care
• Other responsibilities not provided for in legislation include
  • Providing adequate food and shelter
  • Providing access to education
  • Discipline
  • Consenting to medical treatment
  • Providing protection from harm, including ensuring others are not harming the child

Parental Neglect

• Parental neglect is a crime under s.228 of the Children and Young Persons (Care and Protection) Act 1998 NSW and s.43A of the Crimes Act 1900 NSW
• If child abuse or neglect is reported FACS will send a caseworker, and may take action such as removing the child from the family home into Foster care, and referring to the police for prosecution
• A parent can be liable for damage or injury that their child causes, and can be forced to pay compensation

Legal Rights and Obligations of Parents and Children

• Education
  • In NSW it is compulsory for children to attend an educational facility from the age of 6 until the school leaving age (17 or the completion of year 10)
  • This is set out in the Education Act 1900 (NSW) and subsequent amendments introduced in 2009
  • ‘Parents Face Fines for Kids Who Wag School’ (Herald Sun, 2013) - $70 fines now apply in NSW for parents who fail to send their children to school, without a reasonable excuse, for more than 5 days a year. Fines also apply for parents who fail to provide a reasonable excuse for not enrolling their children in school
• Discipline
  • Under s.61AA of the Crimes Act 1900 NSW, parents have the right to discipline their child by using ‘moderate and reasonable force’ with regards to age, health, maturity, and other characteristics of the child or the nature of the behaviour
  • Other people given care of the child by the Family Court, and any adults acting in loco parentis (in place of the parents), also have this right. However, corporal punishment is banned in all NSW schools
  • What is ‘moderate and reasonable’ is determined largely by common law
  • Parents have a defence of ‘lawful correction’, where they must demonstrate that the physical force was reasonable
  • Reasonable discipline does not include striking the head or neck of a child, causing long-lasting pain, shaking a young child, or striking a child with a closed fist
• Medical treatment
  • Parents have the responsibility to ensure children receive appropriate medical and dental treatment
  • A parent must also give consent to a doctor to carry out treatment.
  • The different levels of consent are set out in s.49 of the Minors (Property and Contracts) Act 1970 NSW
    • Children under 14 - parental or guardian consent
    • Children 14-16 - child or parental consent
    • Children 16-17 - young person’s consent
• If a parent refuses medical or dental treatment a court can authorise the treatment under the Children and Young Persons (Care and Protection) Act 1998 NSW
  • ‘Judge Allows Blood Transfusion for Jehovah’s Witness Boy, Against Parent’s Wishes’ (June 2015) - Jehovah’s Witnesses religiously object to blood transfusions. A Supreme Court Judge ordered that a boy with severe liver disease be given any necessary blood products during a transplant against his parents’ wishes, stating without it “death would be inevitable”.
  • “It seems appropriate to me that the sanctity of J’s life…is a more powerful reason for me to make the orders than respect for the dignity of beliefs so sincerely held by his parents and him” - Supreme Court Justice Douglas

Autonomy of children

• Children are regarded as not yet having the cognitive abilities and capacity to understand the consequences of their actions and make fully informed decisions, so the law makes it illegal for them to engage in certain activities

  • It is illegal for a child under 18 to purchase or consume alcohol and cigarettes

  • Police can only question children in the presence of an adult

  • Children can only enter into contracts, which are for their benefit, with an adult acting as guarantor

  • Children under 10 are presumed ‘doli incapax’, and cannot be held criminally responsible for their actions

  • Children can only give evidence if they understand the nature and consequences of the oath or affirmation

• However, as children grow older they become abler to make decisions decisions for themselves, which is reflected in their increasing legal rights

  • To consent to medical treatment at age 14
  • The Gillick v West Norfolk and Wisbech Health Authority 1985 (UK case established the ‘Gillick Test of Competency’ which is used to decide whether a child is able to consent to their own medical treatment without parental permission or knowledge. It also established the ‘Fraser Guidelines’ in which doctors are able to provide contraceptive advice and medication to adolescents without parental consent
  • To work at age 15
  • To leave home at age 16
  • To consent to sexual intercourse at 16, under the Crimes Act 1900 NSW
  • To drive on a provisional license at 17

• Ex-nuptial children

  • Previously, ex-nuptial children had no legal rights, whereas a legitimate child had automatic rights
  • Legitimacy existed for a child if they were
    • Born during marriage
    • Ex-nuptial but the parents of the child later married
    • Adopted
  • The Status of Children Act 1996 NSW repealed the Children (Equality of Status) Act 1976 NSW to give ex-nuptial children the same rights

• Succession

  • In relation to a will, a parent (testator) can exclude a child from receiving under the estate
  • However, this does not prevent a child (beneficiary) from inheriting under the state
  • This is set out in the Family Provision Act 1982 and the Succession Act 2006 NSW

Adoption

Legal Requirements and Processes

• Adoption falls under state jurisdiction and is governed by the Adoption Act 2000 NSW
• Adoption is the process whereby people become the legal parents of a child born to someone else
• People allowed to adopt are
  • Married couples (including ATSI customary law marriages) who have been together for 2 years - Adoption Amendment Act 2008 NSW
  • De facto couples who have been together for 2 years, including same same couples under the Adoption Amendment (Same-Sex Couples) Act 2010
  • Single applicants, straight or gay
  • Adoptive parents must be over 21 and under 51
  • Male parents must be at least 18 years older, and female parents must be at least 16 years older

The Rights of Adopted Children and Biological Parents

• Biological parents must legally renounce their rights as the legal parents and give consent for the child to be adopted by the non-biological couple
• If the child is over 12 they must consent to their own adoption
• Adopted children have the same status and legal rights as a child born into a marriage
• The Adoption Information Act 1990 NSW made it possible for adopted people over 18 and their biological parents to identify and contact each other
• The Adoption Act 2000 NSW allows for adoption plans, which deal with issues such as exchange of information, contact, support arrangements and cultural upbringing. These must be approved by the Supreme Court

Overseas Adoption

• At a multilateral level, overseas adoptions are governed by The Hague Convention on Intercountry Adoption 1993
  • The adoption of a child from one country to another will be formally recognised if both countries are signatories
• Bilateral treaties with individual countries who are not party to the Convention, such as Taiwan, Ethiopia and South Korea, also exist
  • ‘Federal Government to Introduce Changes to Regulations for Overseas Adoption’ (ABC 2014) - full adoptions from these 3 countries (which make up over 40% of intercountry adoptions) will be recognised automatically in Australia
• ‘Private adoption’ is only allowed if the adoptive parents have been living in the country for at least 12 months and the authorities in the other country approve
• Issues surrounding overseas adoption include
  • The exploitation of poor families in other countries
  • Ethical and moral implications of children being bought and sold
  • The possibility for children to be stolen from their parents
    • ‘Govt Reveals ACT Couples Caught Up in Adoption Scams’ (ABC 2009) - a few families in the 1990s were involved in stealing overseas children from their parents

Forced Adoption

• Between 1950-1970, around 150,000 Australian babies were forcibly taken from unmarried mothers, with the support of the government, “due to the stigma associated with being pregnant and unmarried”.

• State and federal governments have now officially apologised

  “We deplore the shameful practices that denied you, the mothers, your fundamental rights and responsibilities to love and care for your children. You were not legally or socially acknowledged as their mothers and you yourselves were deprived of care and support.”

  - Prime Minister Julia Gillard, 2013

• Forced adoption has had a significant, negative impact on Australian perceptions towards adoption.

Difficulties in Adopting Children

• There has been a 77% decline in the number of adoptions over the past 25 years (Australian Institute of Health and Welfare)
• In 1971-1972 over 10,000 adoptions occurred in Australia
• In 2014-2014 only 292 children were adopted
• The number of adoptions has dropped due to
  • More effective birth control
  • Reduced social stigma attached to unmarried mothers and ex-nuptial children
  • IVF
  • The 4-year average wait to adopt a child from overseas

Non-Legal Responses to Adoption

• Media
  • ‘Changing Australia’s Adoption Laws’ (Studio 10, 2015)
    • There are 50,000 children currently in the system in Australia
    • Adoption remains difficult due to social attitudes after the forced adoptions
  • ‘Why Is It So Hard to Adopt in Australia?’ (The Morning Show, 2015) -
    • There are 17 million people in orphanages overseas
    • “There is a culture in Australia which is anti-adoptive”
    • The state-based system is ineffective
    • A foster child goes through an average of 6 foster care houses
    • In the US the average adoption wait time is 18 months
    • In the US you are 5 times more likely to adopt
    • If Australia had the same adoption rate as the US, there would have been 5000 adoptions in 2014
• The NGO Adopt Change lobbies for law reform regarding adoption. In the next 3 years they aim to double the number of children of adopted in Australia and halve the wait time

Responses to Problems in Family Relationships

Divorce

• Divorce is the legal dissolution of a marriage
• The Family Law Act 1975 Cth governs all divorce law in Australia
• The Family Court or the Federal Circuit Court hear cases of both divorce and de facto separation
• In 2014 over 46,000 divorces were granted, with 47% of these involving children (ABS)

Legal Grounds for Divorce

• The ‘no fault’ concept was introduced in the Family Law Act 1975 Cth
  • This caused much controversy among people who believed one party should be blamed, and that decisions about property division and care and protection of children should take this into account
  • Before the Act, divorce was governed by the Matrimonial Causes Act 1959 Cth. There were 14 grounds for divorce, including adultery, cruelty and desertion. One party had to prove the other was at fault
• Under s.48 of the Family Law Act 1975 Cth, the only grounds for divorce now is an “irretrievable breakdown of marriage”

Legal Requirements of Divorce

• To prove an irretrievable breakdown, couples must live separately and apart for a period of 12 months before applying for a divorce
  • There must be intention to end the relationship by at least one of the parties
  • A couple may be living separately and apart while still living in the same house. The court looks at separate social lives and separate bedrooms to prove they are living as separate individuals
  • Under the Family Law Act 1975 Cth, couples who are separated may try living together again for up to 3 months, and if this fails there is no need for the 12-month separation period. This ‘kiss and make up’ clause gives couples a chance to reconcile differences
• Couples who have been married for less than 2 years are generally required to receive family counselling before divorce will be granted
• If the couple have children, no application for divorce will be approved until all of the issues involving children have been resolved

Legal Consequences of Separation: Children

• Laws regarding the care of children after a separation are contained in the Family Law Act 1975 Cth, which was changed substantially by the Family Law Reform Act 1995 Cth, and further by the Family Law Amendment (Shared Parental Responsibility) Act 2006 Cth
• 47% of divorces in 2014 involved children (ABS)

Parental Responsibility

• The focus of the law is not on ‘parental rights’, but rather ‘parental responsibility’
• Parental responsibility is “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (Family Law Act 1975 Cth)
• Under the 2006 Amendments, the courts presume that the best interests of the child are for parents to have equal shared responsibility
• This presumption does not operate in cases of domestic violence

Best Interests of the Child

• Under Part VII of the Family Law Act 1975 Cth, any disputes concerning children must be decided according to what is in the best interests of the children
• The courts primary considerations in working out the best interests of the child are
  • The child’s right to a meaningful relationship with both parents
  • The need to protect the child from harm
• These were swapped so protecting the child is the main priority through the Family Law Legislation (Family Violence and other Measures) Act 2011
• Additional considerations the court makes are
  • The views of the child, if appropriate
  • Each parent’s willingness to encourage a relationship between the child and the other parent
  • Whether the orders made are likely to lead to further dispute
  • The effect of changing the existing living conditions of the child
  • Practical difficulties involved in ‘spending time with’ and ‘communicating with’ a parent
  • The capacity of each parent to provide for the child’s needs
  • The maturity, gender, lifestyle and background of the child and parents
  • The nature of the relationship of the child with each parent
  • Any family violence order that applies to the child or family

Legal Processes

• The 2006 Amendments focused on making sure issues between parents were resolved as much as possible before going to court
• Agreements, which are accepted by the courts, can be
  • Informal
  • A parenting plan
    • A signed agreement made by both parents about the child
    • Must deal with parental responsibility - who the child lives, spends time, and communicates with
    • Parenting plans have no legal force but will be considered by a court when making a parenting order
    • Most parents are compliant with parenting orders
  • Consent orders
    • An enforceable agreement about a wide range of matters
    • Must be registered with the courts
    • Will only be granted in the case of children if the best interests of the child are the main consideration
• If an agreement cannot be made without mediation, parents must go to Family Dispute Resolution to work out a parenting plan together with a mediator
• Parenting orders are made by the Family Law Courts when the parents cannot reach any agreement about the care of and responsibility for children. They include
  • Who the child lives with
  • Who the child spends time with
  • Who the child communicates with, and how often
  • The allocation of parental responsibility
  • The way in which parents communicate with each other
  • Any aspects of the child’s care

Equal Shared Parental Responsibility

• Equal shared parental responsibility is the idea that parents must consult each other and agree on ‘major long term issues’
• It does not necessarily mean that a child must spend equal time with both parents
• If an order for equal shared parental responsibility is made the court must consider making an order for ‘equal time’ or ‘substantial and significant time’ (weekends, weekdays and/or holidays)
• The legislation “may have led to the very opposite [of what was] intended, namely the parties thinking about their own entitlements rather than what is best for their children” (Family Courts Violence Review: A Report, Professor Chisholm 2010)

Review of the 2006 Family Law Reforms

• Evaluation of the 2006 Family Law Reforms (Australian Institute of Family Studies)
  • “The 2006 reforms to the family law system have had a positive impact in some areas and have had a less positive impact in others … while there are many perspectives within the family law system and, many conflicting needs, it is important to maintain the primacy of focusing on the best interests of children and protecting all family members from harm. “
• Reviews found that
  • 16% of children spend equal or substantial time with both parents (an increase from 9% in 2003)
  • There has been a 22% decline in the number of cases going to court regarding the care of children
  • Children whose parents are in conflict have more problems than those whose parents cooperate, no matter what the living arrangements
• The Reports also found that 2 provisions of the legislation put women and children at risk of family violence
  • The first provision is ‘the willingness of each of the parents to encourage a close and continuing relationship between the child and the other parent after divorce’. This has caused some women to refrain from raising issues of violence out of fear that the courts would view them as the ‘unwilling’ parent and grant them less time with the child
  • The second provision involved costs, and was in response to many father’s rights groups arguing that mothers exploited the ‘domestic abuse’ allegation to gain more time with the child. The Act provided for the awarding of costs against a parent who maliciously raised untrue allegations of violence, or made untrue denials. It discouraged women from making true reports about family violence

Legal Consequences of Separation: Property

• The Family Law Act 1975 Cth determines how property is to be split
• The Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 Cth means the provisions of the Family Law Act 1975 Cth apply to separating de facto and same-sex couples as well
• ‘Property’ includes
  • Houses, cars, household goods, companies
  • Bank accounts, shares, gifts and inheritances, compensation, lottery winnings
  • Superannuation (under the Family Law Legislation Amendment (Superannuation) Act 2001 Cth)

Court Decisions

• When deciding how to divide property, the court looks at each case individually and goes through a 4 step process
  • Deciding what property the parties own and its value
  • Considering the contributions of each party to the property, both financial and non-financial
    • If one party is seen to have contributed more, they can get an adjustment
    • The non-financial contributions of the primary care-giver of the children is usually considered no less valuable to the financial contributions of the income earner
    • In reality, the non-financial contributions of women are not sufficiently considered
    • ‘Some Husbands Are More Equal Than Wives’ (Law Insitute Journal 2014) - “[The author] could not find a single judgment where it was successfully argued on behalf of a working mother that she ought to be entitled to an adjustment on the basis of at least an equal financial contribution and a superior homemaker contribution.”
  • Considering the present and future needs of each party
  • Considering whether the proposed division is just and equitable

Superannuation

• Deciding how to consider superannuation entitlements in property division is difficult because it is locked away until the person retires, but is still a financial asset of the marriage
• If one party has a substantial superannuation fund, and the other does not, this is generally because one party had the opportunity to work while the other made non-financial contributions
• Sometimes the court has awarded superannuation entitlements to one party and, to compensate, a greater share of the property to the other party
• In Coghlan v Coghlan 2005 the Full Court of the Family Court decided that superannuation must be treated separately to other property

Agreements

• Informal Agreements
  • Property allocation is often made by agreement between parties
• Consent Orders
  • If the parties reach an informal agreement about the allocation of property but want to make it legally binding, they can apply to the Family Court for ‘consent orders’
• Mediation
  • If the separating couple cannot reach an agreement, the court can order the disputing parties to attend a conference
• Binding Financial Agreements
  • Under the Family Law Amendment Act 2000 Cth, if the mediation process is unsuccessful the Family Court can make ‘financial orders’ about the allocation of property
  • These agreements can cover financial and property arrangements and agreements on separations, but not anything regarding children
  • They can be made before (‘pre-nuptial agreements’), during, or after the marriage under s.90 of the Family Law Act 1975 Cth
  • Binding financial agreements can be made void if
    • One partner didn’t get legal advice before signing
    • One partner signed under duress
    • One party can prove they didn’t fully understand the agreement
    • The situation of the couple changed dramatically during the relationship
  • ‘Lawyers Back Off Pre-Nups Over Qualms About Being Sued’ (the Australian, 2013)
  • Since 2008, separating de facto couples can make these agreements via the Family Court or Federal Circuit Court

Property Division and Fault

• The concept of fault has become a part of some property orders where the court may decide that one party has made a negative contribution to the property of the marriage
• In Kowaliw v Kowaliw 1982, the verdict was that the financial losses to the property caused by the negligence, alcoholism and gambling of one party did not have to be shared by the other party
• Family violence can also be considered as making negative contributions to property
• In Kennon v Kennon 1997, the court considered the wife’s non-financial contributions as a homemaker were increased because they had been made more difficult to perform due to her husband’s violence

Dealing with Domestic Violence

• Domestic violence is actual or threatened violence or harassment within a domestic relationship
• It can include social, economic, physical, sexual and psychological abuse
• The main criminal law that deals with domestic violence is the Crimes (Domestic and Personal Violence) Act 2007 NSW

The Extent of Domestic Violence

• In the vast majority of cases, women are the victims - 65% separated mothers reported physical/ emotional abuse; 17% of fathers reported concern for safety of child (Australian Institute of Family Studies)
• It is hard to determine the extent of domestic violence because it often goes unreported
  • The Australian Component of the International Violence Against Women Survey (2002 and 2003) found that 1/3 of women had experienced domestic violence in their lifetime
• Domestic violence is the most common form of assault in Australia, accounting for 37% of all assaults in NSW 2007
• The NSW Ombudsman found that NSW police respond to approx. 120,000 domestic violence incidents each year (Domestic Violence: Improving Police Practice, NSW Ombudsman 2006)
• Statistics
  • 39% of homicides in NSW are domestic violence related
  • 41% of domestic violence assaults are alcohol related
  • 76% of the perpetrators are male, 58% of victims are female

Attitudes to Domestic Violence

• The Community Attitudes to Violence Against Women Survey (Australian Institute of Criminology 2006) showed that some attitudes still exist in society that downplay the seriousness of domestic violence
  • Yelling abuse, repeated criticism, denial of money and control of a partner’s social life were seen as less serious behaviours
  • Domestic violence was seen as excusable if it was because of temporary anger and led to genuine regret
  • A belief that women often make up claims of domestic violence in family law disputes to improve their cases

Apprehended Domestic Violence Orders

• An ADVO is an order imposed by a Local Court which restricts the behaviour of the defendant for a period of time
• AVDOs are obtained if a victim can prove, on that balance of probabilities, that they have reasonable grounds to fear personal violence, intimidation or stalking by the defendant
• AVOs were introduced in the Crimes (Domestic Violence)) Amendment Act 1982 NSW
• An ADVO is not a criminal charge or conviction, however breaching one is crime (max penalty 2 years and/or 50 penalty units)
• Around 45,000 ADVOs were granted in 2014 (NSW Bureau of Crime, Statistics and Research)
• Issues with ADVOs
  • When police applied for an ADVO it still had to be served on the defendant, which often involved leaving the abuser with the victim
    • Since 2013, provisional ADVOs can be issued by police, and remain in force until a court hearing
    • ‘On-the-Spot ADVOs to Protect Women’ (SMH, 2012) - The government says this is the “single most practical meaningful reform in combatting domestic violence in memory”
  • It’s not always clear who the victim is
  • ADVOs are issued by states, not the federal government - if a perpetrator leaves the state it is possible that the ADVO won’t apply
    • In NSW it is possible to register a restraining order from another state
    • The federal government is in the process of introducing a national ADVO system
  • National Domestic Violence Orders Would Leave Perpetrators with ‘Nowhere to Hide’, Government Says (ABC, 2014) - Tony Abbott stated, “If women or children receive a court order to protect them in one state that should protect them in all states.”

Criminal Charges

• Domestic violence offences are governed by the Crimes (Domestic and Personal Violence) Act 2007 Cth,
• Police are required to apply for an ADVO if an offence committed is recorded as a domestic violence offence
• The 4 most common offences are
  • Assault
    • Police can charge the perpetrator under the Crimes Act 1900 NSW
  • Malicious damage
  • Stalking and Intimidation
• These were made separate offences under the Crimes (Domestic and Personal Violence) Act 2007 NSW
• Max 50 penalty units and 5 years’ imprisonment

Family Court Orders

• Under the Family Law Act 1975 Cth and the Property (Relationships) Act 1984 NSW, a victim of domestic violence can seek various other orders similar to an AVO
• Injunctions
  • A court order which prevents someone from doing something, or orders them to do something
  • Can be obtained through the Family Court
  • Operates in the same way as an AVO but is more difficult to enforce
  • Seldom used because of the ease of obtaining an ADVO
• Parenting Orders
  • When a court is considering a parenting order for a child it must consider whether there has been family violence, or a family violence order about any member of the family
  • The Family Court must ensure any orders it makes about the future of a child are consistent with existing family violence orders
  • Women may be reluctant to claim family violence for fear of being viewed unfavourably by the court

Evaluation of the Legal Responses to Domestic Violence

ADVOs

Criminal Charges

Family Court Orders

Evaluation of the 2006 Reforms

• Family Violence: A National Legal Response (ALRC Report 114, 2010)
  • This extensive report made 187 recommendations for reform
  • It concluded that the main problem was ‘fragmentation’
    • Due to the division of powers, neither the States nor the Commonwealth government have exclusive power over family law
    • The boundaries between the different parts are not always clear, especially when it comes to violence involving children
• Evaluation of the 2006 Family Law Reforms (AIFS, 2009)
  • The family law system has “some way to go” in developing an effective response to domestic violence
  • Over half of the separated parents in the study reported experiencing emotional or physical violence
  • Possibly due to fear of being labelled an “unfriendly parent” only half of the mothers who reported being concerned about the safety of their children actually tried to limit contact with the other parent
  • 85% of lawyers felt that the family law system was taking care of the ‘meaningful involvement principle’, but only 55% of lawyers felt that the system was doing an “adequate” job protecting children from harm
  • The main problems with the 2006 changes:
    • The ‘false allegation provision’ meant that judges could make a costs order if a victim of domestic violence could not prove it
    • The ‘friendly parent’ provision meant that both parents were obliged to facilitate the child’s relationship with the other parent. This subsequently meant that they were unable to warn the child or keep the child away from the abusive parent against the parental order, or they could end up having less time with the child
  • The report concluded that family violence is a “complex phenomenon”, and highlighted the need for strategies based on case-by-case assessments
• Family Courts Violence Review (Professor Richard Chisholm, 2009)
  • Report by former Family Court Judge
  • He concluded that the changes to the Family Law Act were probably needed to emphasise the fact that both parents were responsible for their children, but the way the Act was drafted went “too far in the other direction”
  • There was some language in the Act that has led people to think that parents have a right to equal time, when it was just a possibility

Evaluation of the 2011 Reforms

• The Family Law Legislation (Family Violence and Other Measures) Act 2011
  • Made the ‘protection from harm’ principle more important than ‘meaningful relationship’
  • Added being exposed to domestic violence as being violence
  • Repealed the ‘friendly parent’ and ‘false allegation’ provisions
  • Widened the definition of ‘abuse’, now includes
    • Stalking
    • Repeated derogatory taunts
    • Intentionally damaging or destroying property
    • Preventing someone having contact with family and friends

Remaining Issues

• There are weak political laws and a lack of political will in the current system
• The lack of a separate domestic violence crime downplays the trauma suffered when someone close to you commits violent acts against you, and the continued fear that this person knows so much about your life
  • ‘Calls for Specific Domestic Violence Crime’ (ABC, 2014) - “At present, our criminal system is perhaps too focused on the physical evidence of violent crimes committed against a victim.”
• There are limits as to what the Family Court can do. Prior to the 2011 reforms the Court was often forced to allow children to have contact with violent parents. Now, they can only protect children when there is an actual case
  • There was no Family Court case for Luke Batty, whose father murdered him, instead his parents came to an agreement with each other
  • ‘Family Court Chief Justice Defends Efforts to Stop Domestic Violence’ (ABC 2014) - “The family court is probably one of the most dangerous aspects of the whole picture. Most times… regardless of the violence that has been perpetrated on the woman and her children, there will be some level of contact allowed for through the family court jurisdiction.”
• It is impossible to control human behaviour
  • “Ultimately we can’t predict human behaviour. That’s for certain. And I think we see that with AVOs and criminal proceedings. You can have as many as you like, but people still sometimes kill their spouses, and sometimes attack them.” (Chief Justice of the Family Court, Diana Bryant)
• Government funding cuts
  • Funding cuts to Legal Aid mean that if one party is unrepresented, they will not fund the other party’s representation. This leads to many victims avoiding court so they won’t have to endure being cross-examined by their abuser.
    • ‘Family Court Chief Justice Laments System Failures’ (ABC, 2014) - “the system is compromised, unquestionably…you get decisions that don’t stick and you get people who are unhappy with decisions” (Diana Bryant)
• The Abbott government announced cuts to community centre funding in the 2014-15 budget
  • ABC Radio’s AM Program - it was argued that cuts to the funding of 60 community legal centres would negatively impact the availability of the services to victims of domestic violence
• Domestic violence was one of only two crimes in 2014 where the crime rate actually increased
  • ‘Assault Rate Rises in NSW Homes’ (SMH, 2014) - ‘‘The standout here is that we seem to have made much more progress in reducing non-domestic assault than we have with domestic assault. That’s an issue.” (BOSCAR director)

Legal Processes

Divorce

• Couples must prove there has been an irretrievable breakdown of marriage, by living separately and apart for a period of 12 months
• Couples then apply to the Family Courts for a divorce, which will be granted without a hearing if all other issues, such as disputes about children and property, are resolved. If these issues are not resolved, the court will refer the couple to dispute resolution methods before a hearing can take place
• Couples who have been married less than 2 years must receive counselling before a divorce is granted

The Care of Children After Parents Separate

• Parents must attempt to reach an agreement about the care of children before a court will hear the matter
• Family Relationship Centres were established in 2006 to provide mediation services
• The ‘best interests of the child’ are the paramount consideration when the courts make a parenting order
• The presumption is that ‘equal shared parental responsibility’ is in the best interests of the child
• Family violence is taken into account in the decision making process and may mean that mediation need not occur

Child Maintenance

• Parties are encouraged to reach agreement about child maintenance. Such agreements must be registered with Centrelink if that organisation is involved with paying benefits to either party
• The Child Support Agency determines how much maintenance is to be paid, by applying a formula
• The Child Support Agency collects child maintenance payments through a variety of methods

Distribution of Property After Separation

• Parties must attend a compulsory conciliation conference to attempt to reach agreement before the court will hear the matter
• When deciding how property will be distributed, the courts apply a four step process, which includes looking at the financial and non-financial contributions of each party, and their present and future needs
• Superannuation is treated as a separate pool of property

The Roles of the Courts and Dispute Resolution Methods

The Courts

• The Federal Magistrates Court
  • More than 75% of family law matters are completed in this court
  • It determines simpler family law matters and applications for divorce which are filed with the Federal Magistrates Court
  • A divorce will be granted by the court if child and property matters are settled
  • There will usually be no court hearing if there are no children involved
• The Family Court of Australia
  • A superior court that hears more complex matters
  • Its jurisdiction is limited to those areas controlled by the Family Law Act 1975 Cth
  • Hears parenting cases which involve multiple parties, allegations of abuse or child welfare agencies
  • Hears complex financial matters
  • Initially the court could not hear cases relating to ex-nuptial children, but all states except WA referred this power through Acts including the Commonwealth Powers (Family Law - Children) Act 1986 NSW
  • ‘Family Court Decisions Can Lead to ‘Diabolic’ Situations’ (WA Today, 2016) - Ms Batty, mother of Luke Batty, said “all judges and magistrates involved in Family Court matters should undergo compulsory training in domestic violence to help them understand its impact”
• The Children’s Court
  • Its jurisdiction is governed by the Children and Young Person’s (Care and Protection) Act 1998 NSW
  • The court hears cases relating to the care and protection of children

Dispute Resolution Methods

• s.10F of the Family Law Act 1975 Cth defines family dispute resolution as a “non-judicial process in which an independent practitioner helps people affected by separation or divorce to solve some of their disputes with each other”
• Different forms of dispute resolution are provided by Family Relationship Centres. The Courts can refer disputing parties to these services
• Counselling
  • Counsellors must be used if the marriage is less than 2 years old and if the parties cannot agree about the care of children
  • Over 90% of dissolutions are resolved at this stage without the need for a judge-imposed decision
• Mediation
  • For separating couples who have made an application to the Family Court
  • Mediation involves a neutral third party helping them to identify issues, formulate opinions, consider alternatives and reach agreement
  • This service may be used prior to a court hearing
• Post-separation parenting programs
  • For couples whose issues adversely affect their carrying out of parenting responsibilities
  • This program usually takes the form of family counselling, group lectures and discussions, and teaching techniques to resolve disputes
• Adjudication
  • The determination of a matter by a court judgement or ruling
  • The Federal Magistrates Court and Family Court can make decisions regarding property, maintenance and children
  • This will only occur if all other counselling and family dispute resolution processes have been exhausted

The Roles of Non-Government Organisations and the Media

NGOs

• NGOs provide advice and assistance to families experiencing problems.
• Family Relationship Centres supply compulsory mediation for separating families
• Charities such as the Salvation Army, St Vincent de Paul Society and Anglicare provide emotional and physical support to families in terms of counselling, emergency accommodation and food
• Community based NGOs such as Relationships Australia provide support services like counselling, family dispute resolution and early intervention services
• Women’s refuges assist women experiencing domestic violence by providing emergency accommodation and advice
• Legal assistance can be accessed through Legal Aid NSW and non-profit organisations such as Women’s Legal Service NSW

Lobby Groups

• Various lobby groups play an important role in pushing for law reform in family law
• Lobby groups pressure governments through representation, staging rallies and protests, promoting their ideas in literature, and responding to government inquiries about the operation of the law
• The Domestic Violence Committee Coalition (DVCC)
  • Formed in 2006 with the specific aim of drawing attention to the increasing number of domestic violence related deaths in NSW
  • They advocate for change, and have been relatively successful with the establishment of the NSW Domestic Violence Death Review Team in 2010
• Australian Marriage Equality and the NSW Gay and Lesbian Rights Lobby
  • Pressure parliament to pass laws so same-sex couples have the same status as heterosexual couples
  • They have been fairly successful as evidenced by the changes to law to recognise gay relationships as de facto, but areas of inequality still exist
• Religious organisations, including the Catholic Church and the Australian Federation of Islamic Councils
  • Powerful influences on governments through their opposition to same-sex marriage on religious grounds
  • Various church bodies, including Anglicare, gave evidence at the NSW Legislative Council’s Inquiry into adoption by same-sex couples
• Parents groups such as Dads in Distress and the Lone Fathers Association
  • Instrumental in the 2006 Family Law reforms
  • Former Family Court Chief Justice, Nicholson, stated that the 2006 reforms were “more or less an attempt to… pander to the strong pressure that’s been put on the Government by various militant fathers’ groups” (The Age: Child Custody Bill Flawed, 2005).

Media

• The media has a powerful role in bringing issues to public attention and pressuring parliaments
• If the media publishes the views of particular lobby groups or persistently criticises government policies, reforms to the law frequently follow
• Publicity given to current events can help persuade the government to review the law
• NSW Domestic Violence Death Review
  • Calls for a panel were made by the NSW Ombudsman in 2006
  • In 2008 SMH ran several pages of domestic violence articles - ‘Remembering the Victims’, ‘Call for Domestic Homicide Review’
  • This pressure led to the establishment of the Domestic Violence Homicide Advisory Panel NSW 2008, and its report led to the establishment of the NSW Domestic Violence Death Review Team
• Family Courts Violence Review: A Report (Chisholm)
  • Chisholm was commissioned to review the 2006 reforms after 4 year-old Darcey Freeman was thrown off a bridge a day after her father was granted less time with her
• FACS (Family and Community Services)
  • There were several highly publicised child deaths in NSW 2007, including Shellay Ward and Dean Shillingsworrth
  • The publicity and subsequent criticism of FACS led them to make several significant changes to policy

Contemporary Issues Involving Family Law

Recognition of Same-Sex Relationships

Development of Recognition

1975

• South Australia decriminalised homosexual activity (the 1st state)

1982

• the Anti-Discrimination Act 1977 NSW was amended to prohibit discrimination on the grounds of homosexuality

1984

• NSW decriminalised homosexual activity. The Australian Medical Association removed homosexuality from its list of illnesses and disorders

1990-95

• Recognition by some medical insurance companies that a same-sex relationship constitutes a family. The NSW Industrial Relations Commission decided in 1995 that up to 5 days of a worker’s sick leave could be used to care for family members, with specific inclusion of same-sex couples as ‘family members’

1999

• the Property (Relationships) Legislation Amendment Act 1999 NSW was passed, which amended the De Facto Relationships Act 1984 NSW. It reformed many existing laws to include same-sex couples, including regarding them as de-facto couples in property division issues

2002

• The Miscellaneous Acts Amendment (Relationships) Act 2002 NSW amended 20 laws to include same-sex couples in the definition of de facto relationships, in areas such as the exception from giving evidence against a spouse in court and employment benefits

2003

• The age for consensual sex was equalised to 16 in NSW so that heterosexual and homosexual people can all consent to sexual intercourse at the age of 16. Previously the age for homosexual consensual sex was 18
• NSW referred its powers to make laws about de facto relationships to the Commonwealth. The majority of states (except WA and SA) also referred their powers

2008

• The passing of the Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 NSW meant that female same-sex partners, who conceive a child through artificial means, are treated in the same way as opposite-sex parents, and can have both mother’s names on their child’s birth certificate. This Act also amended 57 pieces of NSW legislation to ensure that de facto couples, including same-sex, are treated equally to married couples. This included amendments to the Anti-Discrimination Act 1977 NSW so that discrimination against someone because they have a same-sex partner is specifically illegal
• The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 Cth treats same-sex couples in the same way as de facto and married couples in regard to financial matters. This Act relates primarily to the way property is distributed when a couple separates
• The Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 were passed by the federal government to remove over 100 discriminatory provisions about same-sex couples in various pieces of Commonwealth legislation. This was in response to the inquiry by the Human Rights and Equal Opportunity Commission (HREOC) which investigated financial and work-related discrimination toward same-sex couples in its report ‘Same-Sex: Same Entitlements’ (HREOC, 2007)

2010

• The Relationships Register Act 2010 NSW means that same-sex couples can register their relationship with the NSW Registry of Births, Deaths and Marriages. This provides proof of the existence of the relationship for the purposes of the law. Similar registration laws apply in the ACT, Victoria and Tasmania
• The Adoption Amendment (Same-Sex Couples) Act 2010 was passed by the NSW parliament in September 2010 and means that same-sex couples are now permitted to adopt children in NSW. This came about after a lengthy lobbying and parliamentary process. The NSW Legislative Council Standing Committee on Law and Justice released its report ‘Adoption by Same-Sex Couples (2009), which recommended with a ‘four to two’ majority that same-sex couple adoptions should be allowed. The calls to legalise such adoptions was rejected by the government. In June the Adoption Amendment (Same-Sex Couples) Bill was introduced by Clover Moore, and independent member, and all major political parties allowed their members a conscience vote.

2017

• November postal survey saw 61.6% of respondents support the legal recognition of same-sex marriage. This led to the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which omitted the phrase “a man and a woman” from the definition of marriage, replacing it with “2 people”.
• Also repealed section 88EA of the Act, allowing the government to recognise same-sex marriages from foreign countries.
• Replaced several uses of gendered terms in the Act with “spouse”, replaced “husband and wife” with “married couple”, etc. in order to be applicable to same-sex couples.

Discrimination in Marriage Laws

1961

• The Marriage Act 1961 Cth discriminated against same-sex couples by giving more rights to heterosexual couples
• Same-sex marriages entered into legally in other countries are not recognised in Australia

2004

• The Howard Government passed the Marriage Amendment Act 2004 Cth to include a definition of marriage in s.5(1) that only includes union between a man and a woman

2009

• The Greens tried to get the Marriage Equality Amendment Bill 2009 passed, but neither major political party supported the Bill and it was defeated

2010

• There is an exception under the Adoption Amendment (Same-Sex Couples) Act 2010 in which religious adoption agencies are still allowed to discriminate against same-sex couples

2011

• Leader of the Christian Democrats, Fred Nile, introduced a Bill into the NSW Legislative Council to try and repeal the Adoption Amendment (Same-Sex Couples) Act 2010, but it did not get passed through

2012

• Two Marriage Amendment Bills failed to go through parliament

2013

• The NSW government ordered a Parliamentary Inquiry into Same Sex Marriage in NSW. The final report argued that the NSW government had the power to pass a gay marriage law but that it might end up getting challenged in the High Court under s.51
• The ACT passed the Marriage Equality (Same Sex) Act 2013, thinking that the federal government was not allowed to pass laws about same-sex marriage. The High Court decided in Cth of Australia v ACT that the ACT was wrong - the Cth government already had an Act that covered all marriage in Australia and banned gay marriage. The ACT Act could not operate concurrently and was thus invalid

The Changing Nature of Parental Responsibility

• Parental responsibility is defined in the Family Law Act 1975 Cth as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”

The Early 20th Century

• Women had no custody or guardianship rights over their children in the early 20th century
• The automatic guardian of a child born to a marriage was the father. If the father died, he could appoint another person guardian of his children rather than the wife/ mother
• The Testator’s Family Maintenance and Guardianship of Infants Act 1916 NSW gave widows automatic custody of their children if their husbands died
• This Act was amended by the Guardianship of Infants Act 1934 NSW which gave women with children who were still alive, equal rights to the custody of their children
• The idea of the ‘right to a child’ rather than ‘responsibility for a child’ was the underpinning factor in who was granted custody and guardianship

The Matrimonial Causes Act 1959 Cth

• The federal government exercised its powers to make laws about divorce for the first time in the Matrimonial Causes Act 1959 Cth, which provided 14 grounds for divorce
• When a couple obtained a divorce, one party (usually the mother) was given custody of the children and the other party (the party at fault) was ordered to pay maintenance
• If maintenance was not paid, some thought that the liable parent had no right to see the child
• The notion of parental responsibility was less important than the rights of access to the child

The Family Law Act 1975 Cth

• Swept away the idea that one partner to a marriage was at fault for the breakdown
• Superseded state and territory laws about guardianship, custody, access and maintenance of children of a marriage
• Introduced the idea that the ‘best interests of the child’ should be the primary consideration for deciding issues about custody and access to children
• Ex-nuptial children did not fall under the Family Law Act 1975 Cth until 1998
• Though the concept of fault was no longer relevant, parents still linked the idea of paying maintenance with access to the child, once more emphasising parental rights rather than responsibility

UN Convention on the Rights of the Child 1989

• Emphasised the rights of the child rather than the rights of parents
• Article 9 states that signatories “shall respect the right of the child who is separated from one of both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests”

The Family Law Reform Act 1995 Cth

• Changed the Family Law Act 1975 Cth substantially to emphasise the notion of parental responsibility rather than parental rights
• Its objective was to “ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children” (s.60B)
• The terms ‘custody’, ‘guardianship’ and ‘access’ were replaced with ‘residence’, ‘parental responsibility’ and ‘contact’
• Introduced consideration of family violence as a factor in determining parental responsibility, residence and contact
• Criticisms of these reforms include
• That the changes were really only changes in terminology
• That women would make false allegations about family violence in order to prevent the father from seeing his children
• In 2005, 26% of children from broken families saw the non-resident parent (usually the father) less than once a year. Only 6% spent close to equal time with both parents. (AIFS)

The 2006 Reforms

• Strong lobbying from father’s rights groups led to the idea of equal shared responsibility
• There was an expectation that both parents will be involved in the important decisions regarding their child, including education, health, residence, religion, ect.
• Changes were intended to bring balance back to the system, but the wording of the provisions created some issues
  • The changes to the Family Law Act 1975 Cth were probably needed to emphasise that both parents are responsible for their children, but the way the Act was drafted “went too far in the other direction” (Chisholm)
• ‘Shared parental responsibility’ was misinterpreted as meaning 50/50 time, and caused parents once again to fight for their own rights rather than the best interests of the child
• The positioning of the ‘meaningful relationship’ principle above the ‘protection from harm’ one led some people to read the law as shared parental responsibility meaning equal time
• *See ‘Evaluation of the 2006 Family Law Reforms’

The 2011 Amendments

• The 2011 Reform arguably brought the system back into balance
• Prioritised the safety of children over their right to a meaningful relationship
• Widened the definition of abuse to include witnessing it. This emphasises child protection and parental responsibilities to keep children safe, even when the violence is not directed at the children
• Strengthened advisers’ obligations by requiring family consultants, counsellors and legal practitioners to prioritise the safety of the children, and ensured the courts have better access to evidence of abuse
• This Act places the best interests of the child foremost and highlights parental responsibilities to children

The Effectiveness of Legal Responses

Effective

• More children are spending substantial or equal time with both parents - from 9% in 2003 to 16% in 2009. This indicates that more parents are embracing the idea that they both have responsibility for their children
• Fewer matters regarding the care of children are going to court, showing that more parents are making agreements about their children

Ineffective

• It is the conflict between parents, not the living arrangements, which has the biggest negative impact on children
• There is still considerable confusion about the notion of ‘equal shared parental responsibility’
• Family Courts Violence Review (Chisholm, 2010) found that some parties are still thinking more about their entitlements rather than what is best for the children
• Provisions about family violence may not be protecting children from having considerable contact with an abusive parent
• Only 50% of paying parents pay child support in full and on time, indicating that many parents do not fully accept responsibility for their children

Non-Legal Responses

• Church-based organisations such as Anglicare provide support, counselling, education and skills programs to ensure that parents are better able to fulfil their responsibilities as parents
• Relationships Australia provides services such as family dispute resolution to make sure that separating parents are aware of their responsibilities, and that they are to be shared
• NGOs that represent the interests of certain groups, such as the National Council of Women Australia and DadsLink, provide information and legal assistance to make sure that the people they represent are given the right to fully participate in decision making that affects their children

Surrogacy and Birth Technology

Birth Technology

• Birth technology refers to artificial insemination and in-vitro fertilisation (IVF)
• Birth technology is governed by state law in Australia, such as the Artificial Reproductive Technology Act 2007 NSW
• By 2010 there were over 85,000 children born in Australia through IVF

Issues with Birth Technology

• Who are the child’s legal parents?

  • Under the Status of Children Act 1996 NSW, the social father (the man who acts as the child’s father, usually the partner of the woman) is the legal father. This is called the ‘presumption of paternity’
  • The sperm donor is not the legal father of the child, unless he acts as the social father of the child as well
  • Re Patrick (2002) - a homosexual man donated his sperm to a lesbian couple, and the donor believed that he would be having contact with the child. The Family Court granted the man regular contact, reflecting its views on the best interests of the child, and deciding on a case-by-case basis

• The woman who bears the child is the legal mother of the child

  • Until 2008, a child born to a lesbian couple through birth technology had only one legal parent, the birth mother. The Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 changed the Status of Children Act 1996 NSW so that female same-sex partners are both named on the birth certificate as co-mothers, and have equal status as parents
  • ‘Gay Dads Birth Certificate Ruling Welcomed’ (ABC, 2013) - A male couple from Sydney will become the first same-sex couple in NSW to be named parents on the birth certificate of a child born through a surrogacy arrangement

• Is it moral?

  • ‘Community Attitudes to Assisted Reproductive Technology: A 20-year Trend’ (the Medical Journal of Australia, 2003) shows how widespread support is for the use of technologies

    • Approval of the use of IVF for infertile married couples rose from 75% in 1982, to 86% in 2003

    • Approval of the use of donor sperm by single women rose from 18% in 1993 to 38% in 2000

    • Approval of the use of donor sperm by lesbian women rose from 7% in 1993 to 31% in 2000

  • Other developments such as cloning, post-menopausal pregnancy and gender selection have raised much controversy

Surrogacy

• Surrogacy describes when a woman agrees to become pregnant and bear a child on behalf of another couple, who are usually unable to have children of their own. When the child is born, it is given to the couple for adoption
• Commercial surrogacy involves paying the surrogate money, whereas altruistic surrogacy is done voluntarily
• The surrogate mother may use procedures such as IVF or her own ova

Legal Status of Surrogacy in NSW

• Commercial surrogacy is banned under the Assisted Reproductive Technology Act 2007 NSW, though there is nothing to prevent private surrogacy arrangements taking place for altruistic reasons
• The woman who bears the child is the legal mother of the child, and the legal father of the child is the sperm donor
• The birth parents must give up their child to be adopted by the ‘commissioning parents’
• Commissioning parents may not use adoption orders to gain legal parental status, but can apply to the Family Court for parenting orders. The court makes a decision based on the best interests of the child
  • Re Evelyn 1998 - The Full Bench of the Family Court found that the surrogate baby of the Q’s should be returned to its birth (surrogate) mother, Mrs S. The High Court upheld this decision. It set a precedent in giving birth rights to the birth mother and deciding against surrogacy contracts
• The Final Report, Legislation on Altruistic Surrogacy in NSW (Legislative Council Standing Committee on Law and Justice, 2009) recommended that the ban on commercial surrogacy be strengthened by clarifying the reasonable expenses for which the birth mother may be reimbursed in an altruistic surrogacy

Legal Responses to Surrogacy

• The jurisdiction of surrogacy has led to different laws in different states
• Until 2011, NSW did not have clear enough surrogacy laws. The Assisted Reproductive Technologies Act 2007 NSW was unclear and ineffective
  • Re Michael 2009 - neither the two people found to be the parents were at all biologically related to the child, and neither of the biological parents were found to be the parents
• The NSW government held a ‘Surrogacy Inquiry’ in 2009 in response to this problem. They received submissions from the Australian Christian Lobby to the Gay and Lesbian Rights Lobby
• The inquiry led to the Surrogacy Act 2010 NSW. It’s two goals were
  • To clarify the law in NSW on altruistic surrogacy
    • The law now allows for new ‘parenting orders’ that can be granted by the Supreme Court to transfer parentage in surrogacy situation
    • The main concern of the court is still the best interests of the child - but these cannot be granted if it is a case of commercial surrogacy, which leaves children vulnerable
    • ‘Concern Over Complex Laws on Surrogacy’ (SMH, 2013) - ‘‘Keeping surrogacy onshore would … provide a far greater opportunity for harm minimisation objectives to be pursued’’
  • To ban overseas commercial surrogacy by NSW residents
    • The NSW Attorney-General believed that this was a “logical step” because commercial surrogacy was already illegal in NSW - the ban would stop wealthier couples in NSW exploiting poor women overseas
    • The penalties have been seen by some as too harsh (max 2 years and $110,000) and not providing enough legal protection for the children of such arrangements
    • The Baby Gammy Case - a couple from WA used a surrogate mother in Thailand, who had twins. One was born with Down Syndrome and was left in Thailand, but the couple brought the other one home

Non-Legal Responses to Surrogacy

• When the Queensland government decriminalised altruistic surrogacy in 2010, the Australian Christian Lobby was furius that the law would allow equal rights to same-sex couples. They promised to spend money campaigning against members who voted for the Bill
• The Gay and Lesbian Rights Lobby fought for equal rights for all people, arguing that the key concern should be that children are taken care of in a loving family of any structure
• The media has played an important role in increasing awareness of an issue that affects a minority of the population - India’s Baby Factory (SBS, 2009), Baby Business (SBS, 2011), The Baby Makers (ABC, 2014)

The Effectiveness of Responses

Effective

• The availability of IVF technology to all women is non-discriminatory
• Parenting orders arrangements to protect those involved in altruistic surrogacy arrangements

Ineffective

• People travel overseas to access technologies that are banned in NSW, meaning they only become available for the wealthy
• Medicare restricts assistance to medically infertile women, meaning that many single or homosexual women can only access IVF if they have sufficient funds for the expensive treatment
• Altruistic surrogacy arrangements are not legally enforceable except for Family Court orders

Care and Protection of Children

Legislation

• The Children and Young Persons (Care and Protection) Act 1998 NSW is the main piece of legislation that protects children from harm in NSW
• It was amended substantially by the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 NSW, which implemented some of the suggestions by the Wood Inquiry
• Under the Children and Young Persons (Care and Protection) Act 1998 NSW
  • It is an offence for someone to abuse a child
  • Schoolteachers, counsellors etc. must notify FACS if they have reasonable grounds to suspect that a child is ‘at significant risk of harm’
  • The protection of the child is the paramount concern
  • A police officer or FACS worker can remove a child from their home if they believe the child is at serious risk of harm or deemed ‘in need of care and protection’. Such children can be placed in the care of relatives, foster parents or an institution
  • Parents have a duty to be responsible for their children
  • Assistance is provided for parents and guardians of children ‘at risk of harm’ ‘in need of care’ so they can provide a ‘safe and nurturing environment’. This is aimed at preventing children needing to be taken into care
  • The different needs of ATSI children must be considered - Indigenous community input can be sought concerning the placement of Indigenous children into care

The Wood Inquiry

• Several highly publicised deaths in NSW October and November 2007 led to the establishment of the Special Commission of Inquiry into Child Protection Services in NSW
  • Ebony (7) died of starvation in her home
  • Dean Shillingsworth (2) was found dead in a suitcase in a duck pond
• Headed by former Supreme Court judge James Wood QC
• Findings
  • “too many reports are being made to DoCS which do not warrant the exercise of its considerable statutory powers”
  • 160,000 calls in 2001-2 increased to 300,000 calls in 2007-8
  • DoCS was being swamped with less serious matters, which prevented It from dealing with serious cases effectively
• Recommendations
  • Only children at risk of ‘significant harm’ should be reported to DoCS
  • DoCS should provide feedback to other child welfare agencies, such as the Department of Education and the police, so these agencies can track a child’s progress
  • Early intervention programs should be run by NGOs
  • Health services, the police, the Department of Education and Juvenile Justice should each create a special unit to advise their own staff and DoCS when children are at significant risk
• As a response to the Wood Inquiry, the NSW government launched a 5-year action plan, Keep Them Safe
  • It drastically changed the mandatory reporting system
  • A lot of the services provided to by government were transferred to the non-government sector, so the government only deals with the most severe cases
• The aim was to ensure that “all children in NSW are healthy, happy and safe, and grow up in belonging families and communities where they have opportunities to reach their full potential”

Family and Community Services

• FACS is responsible for services that care for children who are not adequately cared for elsewhere, and also offers assistance to parents who fear they will abuse their child
• A child or young person can ask for assistance from FACS, and any person can report a child ‘at risk of significant harm’. Certain professionals must report a child if they suspect they are at risk of ‘significant’ harm
• FACS is authorised to
  • Do nothing, if it is perceived there is no risk of significant harm
  • Make further investigations about the child, which can involve talking to the child’s teacher or relatives. The Wood Inquiry Amendments allow for an increased sharing of information that relates to the safety and welfare of children between agencies
  • Visit the child and family if it seems that the child is in immediate danger. If this is the case the child can be removed at once
  • Notify the police if investigations reveal there may be criminal activity. The Joint Investigative Response Team will look into allegations
  • Arrange support services for the family
  • Make an arrangement with the family for the child to be placed in a temporary care arrangement with FACS (3-month duration that includes a restoration plan)
  • Develop a care plan with the family to meet the needs of the child
  • Develop a parental responsibility contract with the primary caregivers of the child. It must be registered with the Children’s Court and may not be longer than 6 months
  • Remove the child from the family
  • Make a care application to the Children’s Court
• FACS faces huge issues with resource inefficiency, particularly relating to case workers being unable to actually see the children
  • ‘Royal Commission: Ratios of FACS caseworkers to children in care ‘doesn’t meet accreditation standards’ (ABC, 2015) - “So long as the department was focused on trying to…both deliver a statutory service as well as care for children in out-of-home care itself … it was unable to do both well.”

Non Legal Responses

Family Referral Services

• If someone feels that a child is at risk, but not of ‘significant harm’, they can refer the family to this service
• The service is provided by NGOs including Relationships Australia
• Connect young people and their families to locally available services such as housing, child care, mental health services and drug and alcohol support services

Child Wellbeing Units

• Recommended by the Wood Inquiry
• Established in the NSW Department of Health, NSW Police Force, Department of Education and Training and the Department of Human Services
• These government agencies made the majority of reports before the ‘at risk of harm’ mandatory reporting threshold was raised to ‘at risk of significant harm’
• If someone within these departments believes a child is at risk, but not of ‘significant harm’, they are to contact the Child Wellbeing Unit within their department
• The role of the Units are to
  • Assist in assessing the level of risk to the child
  • Provide advice to the reporter about how the department can assist the child/ family
  • Provide advice about possible referral options and other sources of assistance

NGOs

• The Wood Inquiry recommended a greater role for NGOs in the provision of out of home care and early intervention programs, and has supplied more funding to train and assist NGOs in this role
• Collaboration and consultation between the government and NGOs occurs through the Child Protection Advisory Group
• Life Without Barriers
  • One of the NGOs involved in the foster care cases transferred from FACS
  • 2335 children have been transferred from the FACS foster care system to NGOs
  • They care for children who are still legally related to abusive or neglectful parents by organising safe access visits to try to maintain the relationship while still protecting the children
  • ‘Fairy Godmothers Changing Life for Carers, Children’ (SMH, 2014) - ‘‘Smaller caseloads means they can do more work in the field and have a relationship with the kids in their care and be a constant part of their life.’’

Media

• The enormous media attention surrounding the deaths of children led to public outrage and resulted in significant legal changes in the 1990s and late 2000s
• The murder of Kiesha Weippeart (R v Abrahams 2013) case drew attention to child neglect and abuse. The judge said in sentencing Kristi Abrahams for murder that she was “an inevitable product of entrenched intergenerational failures”
• ‘Duty of Care: What Happened to Kiesha?’ (SMH, 2013)

Effectiveness

• The effectiveness of the Wood Inquiry Amendments relies heavily on government funding and the willingness of people in contact with the child to take action
• ‘Review of the NSW Child Protection System - Are Things Improving?’ (NSW Ombudsman, 2014)
• The percentage of children reported as being at risk of severe harm who were actually seen by a caseworker increased from 21% to 28%
• However, this still means that more than 2/3 of the children who had been reported did not get a face-to-face meeting with a caseworker
• 25,000+ cases were being closed because of adequate resources, with the only action taken in a lot of cases being a phone call
• ‘Vulnerable Children Still Getting ‘Lost in the System’ (ABC, 2014) - “So you have to be at a higher risk now to be notified to community services now in the first place and 72 per cent of those children are still not being visited and receiving a face-to-face visit and that is shocking”

Themes and Challenges

The Role of the Law in Encouraging Cooperation and Resolving Conflict in Regard to Family

• The law is reluctant to step into family matters unless it must, because they are seen as private
• Families that cooperate and resolve their own conflicts generally find longer-lasting solutions than court-orders
• To assist in encouraging cooperation, the law makes mediation mandatory in some areas before a dispute will be considered by a court

Dissolution of Adult Relationships

• Law provides mechanisms for married couples to divorce
• Counselling is available - mandatory for couples who have been married for less than 2 years
• The ‘kiss and make up’ clause encourages reconciliation between separating couples
• Non-marital relationships dissolve without interference from the law, unless there are disputes about care of children and distribution of property

Property disputes

• Since 2008, same sex and de facto couples are treated in the same way as married couples when it comes to disputes about property
  • Family Relationship Centres - established by the government in 2006 to help families reach agreements
  • If separating couples cannot agree they must attempt dispute resolution (unless there is domestic violence) and will be referred to a Family Relationship centre
  • Over 90% of relationship matters are resolved by agreement between the parties
• Before imposing a court decision, the law encourages cooperation between parties by obliging separating couples who cannot come to an agreement to attend a compulsory conciliation conference with a Family Court Registrar
• Family Relationship Centres can also assist
• Binding financial agreements can be made by parties

Care of Children After Separation

• The law, in encouraging agreement regarding the care of children, is tempered with the need to consider the best interests of the child
• The law makes a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility - parents must consult each other about long-term decisions regarding the child
• The law specifies that parents must attempt dispute resolution unless there has been domestic violence
• The law accepts agreements about the children which can be informal, parenting plans, or consent orders - however a consent order will only be accepted by the court if it is in the best interests of the child

Adoption

• Under the Adoption Act 2000 (NSW) adoption plans are permitted
• These are aimed at reducing potential future conflict between the birth parents, the adoptive parents and adopted child
• The Supreme Court will adjudicate in disputes that arise from such agreements and can vary or revoke plans

Issues of Compliance and Non-Compliance

• Laws relating to the family are generally complied with, without coercion from the legal system
• Areas of non-compliance include
  • Parental responsibility orders
  • Payment of child maintenance
  • Some laws regarding children
  • Domestic violence

Marriage Laws

• Marrying couples comply with marriage laws the vast majority of the time
• If people choose not to marry, more and more commonly they choose to live in de facto relations
• One area of difficulty with compliance is same-sex couples - many would like to comply with marriage laws, but are excluded from them

Dissolution

• Most couples reach an agreement when they separate, indicating widespread compliance with the law
• Few couples require the law to intervene to ensure compliance in the area of dissolution

Orders Regarding Parental Responsibility

• Parenting orders are difficult to enforce, particularly those involving spending time with a parent the child doesn’t live with
• Access to children can cause violence in families, even the death of spouses and children at the hand of partners who feel they have been treated unfairly by the law - the Luke Batty case

Maintenance of Children

• Before 1998 there was a 70% non-compliance rate in the collection of child maintenance
• This led to the establishment of the Child Support Scheme in 1998
• In 2008 only 50% of paying parents paid child support in full and on time

Children

• Most laws regarding children are complied with
• Areas of difficulty include:
  • The banning of gender selection in Australian IVF treatments has led some people to seek treatment overseas
  • The lack of legislation concerning private surrogacy arrangements means that arrangements cannot be controlled & compliance cannot be enforced - Re Evelyn. The NSW government proposed legislation to bring more legal certainty into such arrangements in 2010
  • Overseas adoption can be difficult to access & can be carried out illegally
  • The Wood inquiry revealed the size of the problem regarding care & protection of children, indicating that a significant number of parents do not comply with their legal responsibility to care for their children

Domestic Violence

• The main issue of compliance is the relative ease with which an AVO or Family Court injunction can be broken

Changes to Family Law as a Response to Changing Values in the Community

• Because the family is the most basic unit of society, family law relies heavily upon the morals & ethics of the society it represents

The Institution of Marriage

• Marriage & it’s popularity is a reflection of both the past and present moral values of Australian society
• Marriage has become less popular over time
  • In 1986 the crude marriage rate was 7.2
  • In 1996 the rate dropped to 5.8
  • By 2006 the crude marriage rate was 5.5
• The drop in the marriage rate has corresponded with a rise in the number of de facto couples
• These changes reflect changes in the morals of society as a whole
• There has been an increased acceptance of sexual relations outside of marriage and the lessening of stigma attached to unmarried couples and ex-nuptial children

Same-Sex Marriage

• In Australia same-sex marriage is only legal between a man and a woman - this only reflects the values of society to some degree
• The Marriage Act 1961 was amended so that same-sex marriages entered into overseas could not be legally recognised in Australia
• Attitudes towards same-sex marriage are changing & there is strong lobbying to change the law - Malcolm Turnbull has proposed a plebiscite

Alternative Family Relationships

De Facto relationships

• During the 1960s / 70s de facto relationships were seen by many as ‘immoral’ and ‘living in sin’
• As values have changed so has the acceptability of these types of relationships
• The law has responded by giving increasing recognition to de facto relationships through legislation such as the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth)

Same-sex relationships

• 20 years ago same-sex relationships were barely acknowledged
• As community values have changed there has been a growing acceptance of these relationships
• There have been gradual changes to legislation which increasingly equalise the legal recognition of same-sex couples

Divorce

• The concept of ‘no-fault’ divorce was introduced in the Family Law Act 1975 (Cth) - it continues to challenge the values of some in the community
• Before 1975 there was usually a party to blame for the breakdown of a marriage - some agree this should still be the case
• The idea of granting custody and ordering maintenance often also involved the idea of fault
• The consideration of fault into property settlements & decisions about children is being reintroduced in some cases concerning domestic violence
• Some argue that no-one is to blame for a marriage breakdown, and therefore no ‘punishment’ should be given
• Others say that in the case of domestic violence a victim should be compensated in the dissolution process

Ex-Nuptial Children

• The issue of ex-nuptial children is not as morally & ethically problematic as it once was
• In the past, children born out of wedlock were seen as the product of an immoral liaison & were not afforded the same legal protections as other children
• The acceptance and recognition of ex-nuptial children has increased as society’s moral attitudes toward marriage have changed
• Today all children have the same legal rights regardless of the marital status of their parents

Birth Technologies & Surrogacy

• Raise moral & ethical issues for the community
• These issues have not been fully resolved, either by society or the Australian legal system
  • Changes in the law reflect changing community standards
  • The Status of Children Act 1961 (NSW) makes the birth mother the legal mother of the child and the social father the legal father
  • Court decisions such as Re Patrick (2002) confirm that sperm donors have no legal parental status
  • The Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 enshrines the status of lesbian co-mothers. This also reflects the change in society’s morals regarding homosexual parenting
  • Gender selection for non-medical reasons is banned in Australia
  • The Assisted Reproductive Technology Act 2007 (NSW) established a mandatory gamete donor register, reflecting the community attitude that children born through such technology such have knowledge about their genetic heritage
  • All women have access to birth technology, but those who are ‘socially infertile’ rather than ‘medically infertile’ must pay considerably more for the technology because they do not receive Medicare payments for the treatment. This reflects the view held by some community members who do not approve of the use of birth technologies by single and lesbian women
  • In NSW, commercial surrogacy is banned under the Assisted Reproductive Technology Act 2007 (NSW), though there is nothing to prevent private surrogacy arrangements taking place for altruistic reasons. Changing attitudes to altruistic surrogacy have led to calls for legislative change in the area
  • In December 2006 the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 (Cth) was passed in a conscience vote. These allow strictly controlled therapeutic cloning, but restrict the use of excess IVF embryos and ban human cloning for reproductive purposes

Adoption

• Adoption laws reflect community values in that same-sex couples, since September 2010, have been able to adopt - these changes were based on a conscience vote
• Far fewer children are available to adopt than 20-30 years ago - this reflects an attitudinal shift about unmarried mothers and their children.

Domestic Violence

• Attitudes which mistakenly minimise the seriousness of domestic violence still exist - 2006 Australian Institute of Criminology Survey
• However, the legal system is increasingly treating the problem of domestic violence seriously
  • Strengthening of AVOs under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
  • Creating domestic violence offences under the Crimes (Domestic and Personal Violence Act 2007 (NSW)
• Taking into account family violence in consideration of Family Court Parenting Orders

The Role of Law Reform in Achieving Just Outcomes for Family Members and Society

Factors Leading to Law Reform

• Changing social values
• The changing composition of society
• The failure of existing laws
• International law
• New technology

Recent Law Reforms

Reforms

Factors Leading to Reform

Marriage

• The Marriage Act 1961 (Cth) was amended in 2004 to specifically exclude the recognition of same-sex marriages entered into in other countries

• Changing social values worldwide which increasingly recognise the legitimacy of same sex relationships

De Facto Relationships

• The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) - de facto couples (heterosexual and homosexual) are covered by the same laws as married couples in matters to do with property after separation

• Changing social values which have made de facto relationships socially acceptable alternatives to marriage

Rights of Children

• The 1995 and 2006 amendments to the Family Law Act 1975 (Cth) - emphasise the responsibility of parents, enshrine the international right of children to know and be cared for by both parents, and to have regular contact with both parents

• Australia’s ratification of the UN Convention on the Rights of the Child in 1990

• Effective lobbying from father’s groups was instrumental in the 2006 reforms

Adoption

• The Adoption Act 2000 (NSW) reformed the previous law by:

• Incorporating the birth family into adoption

• Making open adoption a common practice

• Making further provisions concerning overseas adoption, in order to make it easier to access & to comply with adoption treaties

• Ensuring that the adopted child has access to his or her birth family and culture

• Ensuring that adoption is a serve, first and foremost, to the child concerned

• In 1992 the NSW Law Reform Commission began a review of the Adoption of Children Act 1965 (NSW). It released its findings in 1997, stating that reform to the legislation was needed. This led to the passing of the Adoption Act 2000 (NSW)

• The adoption in 1998 of The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993 also influenced these reforms

• The suggestion that same-sex couples be allowed to adopt was made by the NSW government inquiry in 2009, and made law in 2010

Divorce

• The Family Law Act 1975 (Cth) introduced the ‘no-fault’ concept which was a fundamental reform to divorce law

• Subsequent amendments have reformed the law to increasingly recognise the effect of family violence and to increase the rights of the child

• Changing social values have led to all these reforms

Responsibility for Children

• Reforms to the Family Law Act in 1988, 1995 and 2006 have:

• Made all children subject to these laws

• Introduced family violence as a factor in determining the best interests of the child

• Emphasised parental responsibility

• The perceived failure of existing laws

• Changing social values

• Changing composition of society

• Ratification of CROC

• Pressure from lobby groups, such as father’s groups

• Several reviews into the operation of equal shared parenting laws and the consideration of family violence were released in 2010 and several reforms were suggested

Property

• There have been reforms to:

• Who is covered by the laws

• The way superannuation is considered

• Consideration of family violence through legislative changes and court decisions

• The perceived failure of existing laws

• Changing social values

• The changing composition in society

Domestic Violence

• Strengthening of AVOs and other reforms under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)

• Taking into account family violence in the consideration of Family Court parenting orders

• The Domestic Violence Death Review Team established by the Coroners Amendment (Domestic Violence Death Review Team) Act 2010 (NSW)

• Recognition of ‘battered woman syndrome’ as a criminal defence

• Failure of existing laws

• Changing social values

• Pressure from lobby groups and the media over cases such as Luke Batty’s

Courts and Dispute Resolution

• The Federal Magistrates Court was established in 2000

• Family Relationship Centres were established in 2006

• Mediation is mandatory unless family violence is involved

• These reforms were brought about to relieve pressure on the Family Court and resolve the delays in divorce and child-related proceedings

• Also make divorce proceedings cheaper and less likely to lead to further dispute

Recognition of Same-Sex Relationships

• Same-sex couples are now recognised similarly to heterosexual couples in almost every way (except marriage)

• This is a very significant change as homosexual activity was classed as a criminal behaviour in NSW until 1984

• Changes to social values

• Successful lobby groups

• Reform of laws to recognise same-sex marriages has been suggested by some members of the community

Parental Responsibility

• The notion of ‘equal shared responsibility’ was introduced under the Family Law Amendment (Shared Responsibility) Act 2006 (Cth)

• The 2011 amendments brought balance back to the system by prioritising the right of safety of children over their right to a meaningful relationship with both parents

• Perceived failure of existing laws

• Changing social values

• Changing composition of society

• Successful pressure from father’s rights lobby groups led to the 2006 reforms

Surrogacy and Birth Technologies

• Allowing for lesbian co-mothers in 2008

• Banning gender selection for non-medical reasons in 2005

• Allowing therapeutic human embryo cloning in 2006

• The mandatory gamete donor register and laws allowing restricted access to information on that register in 2007

• Banning of commercial surrogacy in 2007

• New technology

• Changing social values

• Changing composition of society

• Suggested reforms include legislating for altruistic surrogacy so it can be controlled, and allowing Medicare to contribute for cases of ‘socially infertile’ women

Care and Protection of Children

• Major reforms were made to the law by the Wood Inquiry amendments in 2009

• Failure of the existing law

• Media pressure

• The finding of government inquiries

The Effectiveness of Legal and Non-Legal Responses in Achieving Just Outcomes for Family Members

• Refer to notes above for:
  • Protection of the rights of the child
  • Adoption
  • Domestic violence
  • The roles of the courts & alternative dispute resolution mechanisms
  • Parties involved in relationship breakdown
  • Recognition of same-sex relationships
  • The changing nature of parental responsibility
  • Surrogacy and birth technologies
  • Care and protection of children