Legal Studies - Contemporary Issues

Marriage Act 1961 (Cth)

The union of a man and woman voluntarily entered into for life to the exclusion of all others.

Marriage Amendment Act 2004 (Cth)

Reaffirmed the traditional concept of marriage when it passed the Marriage Amendment Act 2004 (Cth), amending the definition by adding those words to section 5(1) of the Marriage Act 1961 (Cth).

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Allowed the Family and Federal Circuit Courts to handle property and maintenance disputes for same-sex couples.

Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW)

This act allowed both female partners in a same-sex relationship to be legally recognised as parents.

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

Redefinition of the word ‘marriage’ in the Marriage Act 1975 (Cth), to read ‘two people’ rather than ‘a man and a woman’.

Re Kevin (2001)

A trans man (Kevin) was legally recognised as male, and his heterosexual marriage was upheld. Helped broaden understanding of gender and legal marriage recognition.

‘Fact check: Do same-sex couples in a settled domestic relationship have the same rights as married couples?’ (ABC, 2017)

While most legal rights have been extended to same-sex couples, they still face practical disadvantages, such as needing to prove their relationship and dealing with inconsistent recognition across jurisdictions.

Australian Marriage Equality

Argued that the legally recognised institution of marriage should not exclude these couples.

Family Law Act 1975 (Cth)

Both parents have equal parental responsibility unless there is a court order to the contrary

Family Law Reform Act 1995 (Cth)

Introduced concept of “parental responsibility”; inclusion of family violence as a consideration

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Introduced “shared parental responsibility” the child must have substantial/significant time with each parent; both parents are involved in making the major decisions e.g. school, medical treatment

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Prioritising the safety of children in parenting matters

W and R (2006)

Mother wanted to move to New Zealand with children after divorce; court ruled children staying in Brisbane was in their best interest for a relationship with both parents.

Pannet v Crain (no 2) (2018)

Father's violence and child witnessing it posed unacceptable risk; appeal upheld decision for no time or communication between father and child.

“Fathers spending more time with children but still far from equal to mothers, report finds” (ABC, 2015)

A Save the Children report reveals fathers are spending more quality time with children but are still far from equal partners, often seeing themselves as "helpers." Limited paid paternity leave is a major barrier, with Australia lagging behind many OECD countries.

UN Convention on the Rights of the Child (CROC) (1989)

Ratified by Australia (with some reservations). Protection of children because of vulnerability. States that “Best interests of the child” are paramount. Article 3 – children’s best interest should be primary consideration.

Australian Institute of Family Studies, 2022

Very few parenting matters go to courts. 97% of parenting matters are decided by parents either through direct negotiation or with the help of FDR mediation.

Status of Children Act 1996 (NSW)

When a woman becomes pregnant by using donor sperm from someone other than her husband, then that man is presumed not to be the father of the child born, these children also have the same legal status as those conceived naturally. 

Surrogacy Act 2010 (NSW)

Introduced system of parenting orders where parties can apply to NSW Supreme Court for order to transfer full legal parentage of child from birth parent in a surrogacy arrangement to commissioning parent. Commercial surrogacy remains illegal even when carried out overseas.

B v J (1996)

The court rejected the father's argument that the sperm donor was responsible for child maintenance, ruling that he was automatically presumed the child's father due to his relationship with the mother and therefore held all maintenance and care obligations.

Masson v Parsons (2019)

High Court ruled that Masson, a sperm donor who was actively involved in his daughter's life, was legally a "parent" and could therefore successfully prevent her relocation to New Zealand with her mother and the mother's partner.

“Hundreds pay for overseas surrogacy” (SMH, 2012)

Facing complex and restrictive domestic laws, hundreds of Australian couples are increasingly resorting to expensive and often illegal overseas commercial surrogacy to have children, highlighting the urgent need for law reform in Australia.

Child Protection Legislation Amendment Act 2014 (NSW) (repealed)

Amended the child protection laws in NSW to streamline court processes and prioritise permanent placement for children in out-of-home care, but it has since been repealed.

Children and Young Persons (Care and Protection) Amendment Act 2009 (NSW) (repealed)

Introduced changes to improve early intervention and decision-making in the care and protection of vulnerable children in NSW.

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Primary legislation in NSW that outlines the responsibilities of the state to protect children and young people from harm and promote their wellbeing.

Family Law Act 1975 (Cth)

Defines the care and protection of children in a way that prioritises their best interests.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Amended the Family Law Act to prioritise children's meaningful relationships with both parents, but the "equal shared parental responsibility" presumption doesn't apply if there's family violence or child abuse risk.

B v B (1999)

The mother was allowed to relocate with her children to Bendigo despite the father's objections, as the court prioritised the children's best interests and the mother's well-being, even though it meant the father would need to travel for contact.

“Child abuse has eluded family law reform” (SMH, 2004)

It is stated that the deficiency in family law is putting children at risk in that they are forced to spend time with abusive parents or that they are denied contact with a parent who was wrongly accused.

United Nations Convention on the Rights of the Child (1989)

International framework for child rights. Covers a wide range of rights, including the right to healthcare, education, protection from abuse and neglect, and the right to express their opinions