HSC legal studies: Family Law

The concept of family law

Family law is a legal practice area that focuses on issues involving family relationships, such as adoption, divorce, and child custody

legal requirements of marriage

- not be married

- not be marrying a parent, grandparent, child, - grandchild, brother or sister

- be at least 18 years old, unless a court has approved a marriage where 1 person is 16-18 years old

- understand what marriage means and freely agree to marry

alternative family relationships

- same sex

- necular

- de facto

legal rights and obligations of parents and children

Parents

-

Types of families

nuclear family

single parent family

defacto relationship

extended family

step/blended family

childless family

grandparent family

adoption

the legal process by which parents take another person's child into their family to be raised as their own

distinguish between state and federal jurisdiction in family law

Family law is governed by both state and federal laws

Federal Legislation

- Family law act

- Marriage act

- Family law amendment ( shared responsibility)

- Family law amendment ( family violence and other measures

- Family law amendment ( de facto financial measures and other measures)

States legislation

Property relationship act

adoption act

Adoption amendment (same sex ) couple act

reasons for divorce

- easy way out

- abuse

- infidelity

- hardships

- bad communication

Matrimonial Causes Act 1959 (Cth)

Only outlines specific reasons as to why a person could seek a divorce

Family law act

1996-encourage couples to seek mediation but allows divorce by agreement after 'period of reflection'

- no fault divorce

Family law act s48 (1)

outlines reasons for a divorce

- application on the grounds that the marriage has broken down irreversibility

Family law act s48 (2)

divorce order shall be made is the courts are satified that the parties separated and lived apart for 12 months

How to prove marriage has broken down irretrievable

- not living together for 12 months

Financial contributions

Providing money for the family

Non financial contribution

- seen as equal to financial

- looking after children

- taking a career break

· legal consequences of separation

- property

Property includes

- house

- assets

-shares

How can property be settles

- can be done without courts

- Must be done with independent advice so that no one party takes advantage

- Negotiated agreements can be ratified by the courts.

Aim of courts in settling property

- make it fair and equitable for both parties

decree nisi

a Family Court order that is made to signal the intended termination of a marriage

decree absolute

a final decree of the dissolution of marriage

- courts and dispute resolution - divorce

A final resort if the partied were unable to resolved disputed through negotiation or mediation

outline the legal processes involved in dealing with problems in family relationships

the effectiveness of the law in protecting victims of domestic violence

David's story - ineffective

DVO - They are quick, inexpensive forms of protection and if they breach the offender faces the full weight of the law with little chance of bail. This is seen under the Crimes and personal violence act 2007 and the Jill meagher case where the presumption of bail was removed for serious offenders. Under the crimes (domestic and personal violence act) there are 3 types of orders which can be given out provisional, intern and final.

his is seen as effective through a BOCSAR report which showed that 4 out of 5 DVO stop violence, intimidation and harassment not only this but there was a breach rate of under 50%.DVOs are a reflection of the changing values in the community through providing ways which ensure DV does not occur in families or relationships such as DVO.

BOCSAR - dm

4 out of 5 DVO stop violence, intimidation and harassment not only this but there was a breach rate of under 50%.DVOs are a reflection of the changing values in the community through providing ways which ensure DV does not occur in families or relationships such as DVO.

David's story

He was verbally abused by his wife and constantly made to feel worthless.

role of non-government organisations and the media in relation to family law

evaluate the effectiveness of the law in achieving justice for parties involved in relationship breakdowns

- mediaton

recognition of same-sex relationships

Contemporary issue: surrogacy and birth technologies

the Assisted reproductive technology act nsw achieve just for same sex couple through allowing all women access to in vitro fertilisation technology

Surrogacy act 2010

banned commercial surrogacy but permitted altruistic surrogacy.

Issues with banned commercial surrogacy

abandonment after birth

case " baby gammy"

baby gammy

where after a couple sought out international surrogacy abandoned the thai surrogate and gammy after they discovered he was born with down syndrome. As a result it can be seen that the law is ineffective when dealing with international cases with surrogacy and is unaccommodating to those couples in Australia who wish to turn to suracy as a way to have a child if unable to do so themselves. This is a clear violation of the human right to be able to have a family.

changing composition of families over the last 10 years is because

changing societal values, norms and customs relating to ideas of marriage, relationships and divorce which were previously heavily criticised

Hyde v Hyde and Woodmansee (1866)

established the definition of marriage

Requirements for a valid marriage

Marriage Act 1961 (Cth) establishes requirements for a valid marriage:

- s11: marriageable age of 18yrs. Between 16 and 18, they must apply to a judge or magistrate which might be granted for 'exceptional and unusual' circumstances

- cant be prohibited relationship

- consent must be given

- must not be married to anyone else

requirements for a valid marriage ceremony

- must be performed by an authorised marriage celebrant

- must be 2 witnessed aged over 18

- must satisfy conditions in part V and IV in Marriage Act

- copy of the marriage certificate must be lodged within 14 days

what happens if a marriage is found to be invalid

courts can nullify the marriage. Annulment means that in the eyes of the law, it is deemed to have never taken place because it was illegal

Marriage Act 1961 (Cth)

s11 - legal age of marriage of 18yrs

s12 - between 16 and 18, they must apply to a judge/magistrate for an authorising order if it is 'exceptional and unusual' circumstances

s23 - grounds under which marriages are void (prohibited relationship, already married etc)

s41 - marriages must be solemnised by authorised celebrant

s44 - must be more than 2 witnesses

s101 - solemnisation of marriage by an unauthorised person is subject to 6 months imprisonment or 5 penalty units

Family Law Act 1975 (Cth)

federal legislation that deals with divorce, maintenance and property proceedings and other family related issues.

The rights of the child/parental responsibility are enshrined in parts of the legislation, largely in part due to amendments outlined in the Family Law Reform Act 1995 (Cth) based of CROC

similarities between CROC and Family Law Act 1975

Article 9 of CROC coincides s60B(1)(a) of Family Law Act; children should not be separated from parents unless it is in their best interest

Article 19 of CROC coincides with s60B(1)(b); protect children from violence, abuse and neglect

Article 18 of CROC coincides with s60B(2)(c); it is the parents responsibility bring up the child

Article 20 of CROC coincides with s60B(2)(b); can be looked after by other appropriate guardians if it is in their best interest

Article 3 and s60B(1) - best interests of the child should be protected

Article 9 of CROC

coincides s60B(1)(a) of Family Law Act; children should not be separated from parents unless it is in their best interest

Article 19 of CROC

coincides with s60B(1)(b); protect children from violence, abuse and neglect

Article 18 of CROC

coincides with s60B(2)(c); it is the parents responsibility bring up the child

Article 20 of CROC

coincides with s60B(2)(c); it is the parents responsibility bring up the child

How are the rights of the child and responsibilities of the parent protected

Through the Family Law Act 1975 (Cth) as it ensures that the rights outlined in CROC are protected, which was established the the Family Law Reform Act 1995 (Cth) which ensures that the best interests of the child are protected, coinciding with Articles 18 and 3 of CROC

Other rights are also protected in the rights of the child and responsibilities of the parent protected

neglect

any serious act or omission by a parent that within bounds of cultural tradition, constitutes a failure to provide conditions that are essential for the emotional and physical development of a child .

It is the most common form of abuse after emotional abuse in NSW

It is a criminal offence under the Children and Young persons (Care and protection)

Act 1998 under s228, as well as the Crimes Act 1900 (NSW) under s43A with a jail term of 5 years

State legislation for the protection of rights and responsibilities

Children and Young Persons (Care and Protection) Act 1998 established the Family and Community Services (FaCS) which is the main NSW department responsible for implementing these laws.

Legal process if neglect occurs

if child abuse or neglect is suspected, FaCS will initiate a Joint Investigation Response Team (JIRT) comprising of police, community services and NSW health professionals.

- the case will be assessed by a child protection worker and obtain info on welfare, wellbeing and safety of the child as well as considering the safety of any other children in the household.

- FaCS may apply to children's court for an order such as supervision of family or transfer of responsibilities

- if a child is in immediate danger, they will be moved to a safer place

signs that a child has been neglected or a parent has been neglectful

low weight for age, untreated physical problems, poor standard of hygiene, poor complexion or hair texture, inadequate supervision

Parents: unable/unwilling to provide adequate food, shelter clothing, leaves child unsupervised, abandonment of child

Children and Young Persons (Care and Protection Act 1998

s8 - purpose is to provide children with adequate care and protection for safety, welfare and wellbeing by providing long term, safe, nurturing, stable environments to prevent violence and exploitation

s228 - failure to provide adequate care is guilty of an offense with max penalty of 200 penalty units or 2 yrs jail

s10A - permanent placement principles

s38A - Parent Responsibility Contracts

s91A-91I; Parent Capacity Orders

Permanent Placement Principles

outlined in s10A of the Children and Young Persons (Care and Protection) Act 1998.

It ensures that children are provided with a secure environment in the best interests of the child.

First preference is being with parents, second preference is guardianship by relative, third is adoption (except aboriginal), last is the minister of the act (FaCS)

Parent Responsibility Contracts `

under s38A-D of the Children and Young Persons (Care and Protection) Act 1998.

It is an agreement between the secretary and the primary parent which can force parents to undertake treatment for alcohol, drug or substance abuse or force counselling and participation in parenting enhancement courses.

it also allows authorities to seize the child once they are born if it is proven that the mother has a history of drug and alcohol abuse during pregnancy.

PRC's purpose is to act as evidence in court as either a filed or successful attempt to resolve parenting matters. It is not legally enforceable and failure to comply does not result in civil liability.

Parent Capacity Order

s91A to 91I of Children and Young Persons (Care and Protection) Act 1998.

It is an order requiring a parent to attend courses on therapy/treatment aimed at enhancing parenting skills. Both parties agree on the order

Discipline

s61AA of the NSW Crimes Act 1900 states that parents have the right to discipline their children if they misbehave. The application of force may be reasonable.

The defence for 'lawful correction' against the parent for assault is not applicable if the physical force is unreasonable (striking above head/neck is not reasonable)

Education

s4 Education Act 1990 gives the right to education and outlines that it is the parents responsibility to ensure that their child attends school.

Imposes on the state the duty to ensure that every child receives adequate education.

s21B - compulsory school age of 6yrs and minimum school leaving age of 17 or after year 10.

s22- it is the duty of the parents to ensure that the child attends school. Failure to enrol a child in education is a criminal offence with a penalty of 25 penalty units for first offences

Medical treatment

parents are responsible for ensuring that appropriate medical and dental care is available for their child; consent must be given before a doctor carries out treatment

u14; consent of a parent is required and parents have the right to authorise any treatment considered in the child's best interest

14-16; either a child's or a parents consent in required

16-17; require the consent of a young person

Autonomy of children

Children are regarded as not having developed cognitive abilities to understand the consequences of the actions (doli incapax)

Therefore, the law makes it illegal for them to partake in certain activity.

Ability to make decisions increases as they get older; they gain autonomy.

The law (Children and Young Persons (Care and Protection) Act 1998.) distinguishes between 'children' and 'young people' (16-17)

Adoption

the process of transferring parental control, rights and responsibilities from biological to adoptive parents.

Adoption laws ensure that the best/most appropriate parents are found for the child.

governed under the Adoption Act 2000 (NSW)

Legal requirements and processes of adoption

Adoption is a state responsibility - Adoption Act 2000 (NSW)

Both parents must give consent to give child up for adoption; single mother - only mother but father needs to be notified

Children over 12 must give consent themselves

Birth mother cannot consent to adoption within 3 days of birth

If parents are unable to give consent, court can.

Relinquishing parents can nominate a relative to adopt their child but court must permit them. They can also nominate a desired religious upbringing.

who can adopt?

married couples

de facto relationship

single adult

between 21 and 51

male must be 18 yrs older than child, female 16 yrs older

must have good reputation and ability to fulfill responsibilities as a parent

Inter-country adoption

Governed by the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.

Development of Intercountry Adoption Australia after increase in intercountry adoption

Must be in the best interest of the child

process for prospective adoptive parents (Intercountry)

apply through Department of Family and Community Services to arrange adoption. They will be offered a child to which they can accept. If accepted, the must apply for an adoption visa application and child is subject to standard migration medical checks.

Adoption Amendment Act 2008 (NSW)

gives right for parents and children to request personal information from Community Services which can be used to contact each other

Adopted children or relinquishing parents can apply to Adoption Information Unit to get a supply authority which contains identifying info.

Divorce

legal dissolution of a marriage by an official court decision.

What act governs divorce?

Family Law Act 1975 (Cth). Prior to this it was the Matrimonial Act 1959 (Cth)

Grounds for divorce under the Family Law Act 1975 (Cth)

s48 - the irretrievable breakdown of a marriage. Thus it removed all other grounds of divorce highlighted in the Matrimonial Act 1959 and established the Family Court.

Matrimonial act 1959 (Cth)

before 1974, couples who wanted a divorce had to apply under the Matrimonial Act 1959 (Cth) on the ground of fault. (basis that one admitted to acting in a way undermining the marriage)

s28 outlines reasons for a divorce:

adultery, cruelty, insanity, dessertion

Process of divorce

Must prove that the relationship has been broken down irretrievably by proving that they have been living separate lives for 12 months. (can live together for financial reasons but must prove they are leading separate lives)

How does the law attempt to preserve marriages?

The law will do its best to preserve broken marriages that could potentially be revived.

s48(3) of Family Law Act 1975: divorce shall not be made if court believes that

relationship can be revived

s50: 3 month period of reconciliation out of the 12 months. If this fails, separation resumes with the time contributing.

If a couple has been married for less than 2 years applies for divorce, they must attend family counselling before they can divorce. They can also order marriage counselling to any marriage they believe can be reconciliation

Children in divorce

Divorce will not be approved by the courts until proper arrangements for children involved have been made. Once this has occurred, the court will order a decree nisi.

The focus of the law is on parental responsibility rather than parental rights. These provisions also focus on the best interests of the child with the presumption that it is in their best interest for both parents to share parental responsibility.

Considerations a court must consider in divorce proceedings including children

s60CC (2) of Family Law Act 1975 (Cth)

Primary considerations are that:

1. it is in the best interest for the child to have a relationship with both parents

2. need to protect the child from physical or psychological harm placed upon them due to abuse, neglect or family violence.

s60CC (3) Other considerations family law act

include the child's views, nature of child's relationship with parents, parent's involvement in decision making, effect of changes in family arrangements on child, capacity of each parent to fulfill parental responsibilities.

Child's views in divorce proceedings

s60CC and s60CD of Family Law Act 1975 state that the view of the child could be considered by the court in making decision. This ensures that the child has a say in the decisions made for them.

Shared Parental Responsibility (and Family Law Act Amendment)

the court will order that parental responsibility shall be shared unless the court finds that parental responsibility is detrimental to the child.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced Shared Parental Responsibility. It is criticised for not dealing well with cases of family violence, therefore placing children in unsafe family environments. Other criticisms are that there is a lack of distinction between shared parental responsibility and shared care, as well as not giving enough weighting to childs views.

Property definition

broad term that encompasses the financial aspect of a couple's relationship which can include a house, general assets, bank accounts, superannuation

Settling property

can be done without the need for courts to intervene but must be done with independent legal advice so that no party takes advantage of the other.

A couple in dispute can have the matter heard in Family Court. The aim for courts in settling property is for a fair and equitable outcome for both (does not necessarily mean a 50/50 split)

property settlement: considerations

s75 and s79 of the Family Law Act 1975 (Cth). Matters to consider in relation to spousal maintenance:

- age and state of health

- income, property and financial resources and their ability to gain employment

- whether the party has the responsibility of a child under 18

-whether they have the ability to support themselves or any other person they need to financially.

-inheritance

-non-financial contributions

Non-financial contributions (property settlement)

s79 of the Family Law Act 1975 (Cth):

any contribution made to the improvement and conservation of any property and welfare of the family, whether that be non-financial or financial

e.g. a career break to take care of children, house etc. so made them lose out on superannuation funding

Financial agreements

formerly known as prenuptial agreements, which can be made before, during or after the marriage. The purpose of these agreements could bt to outline guidelines for dividing property and other financial concerns if/when a marriage ends

Family Law Act 1975 (Cth) s90B,C,D

They can make process of settling property easier as guidelines are already outlined therebey foregoing any stresses of the issue.

Domestic Violence legislation

Crimes (Domestic and Personal Violence) Act 2007

Domestic relationship

s5 of Crimes (Domestic and Personal Violence) Act 2007:

There are many definitions of domestic relationship which allows many scenarios to be included and acknowledging that domestic violence can occur in a wide variety of settings

AVO

Apprehended violence order is an order made by a court against a person that makes you fear for your safety. It is the most common solution for DV victims.

Types of AVO's

ADVO - Apprehended Domestic Violence Orders

APVO - Apprehended Personal Violence Orders

ADVO

made to protect a person where a domestic relationship exists between the parties

- provisional orders

-interim court orders

-final order

are you changed if issued with a DVO

being issued with a DVO does not mean being charged with a criminal offense unless it has been breached

provisional orders

short term, granted in urgent situations usually when someone is in need of immediate protection. It is usually 28 days

Interim court orders

short term, used to extend a provisional order

final order (DV)

longer term, issued after a defended hearing, where defendant is present in court. It lasts 2 years

who can apply for an AVO

-over 16

- victim of physical or sexual assault, threatened with physical harm, been stalked, harassed or intimidated and believe that this behaviour will continue

Process once an individual is successful in applying for an AVO

Police will serve the application on the defendant and inform them of when they must attend court. If they do not attend, the court can make the order against them.

Applicants can ask court to make an interim order to protect them during a period of adjournment.

At court, they can make an AVO if the defendant agrees or are convinced that there are significant fears for your safety.

Onus is on the applicant to prove that they fear for their safety.

3 conditions outlined in an AVO

1. no assaulting, molesting, harassing, threatening or interfering with the Protect Person is prohibited

2. Intimidating the Protected Person

3. Stalking the Protected Person (or anyone in a domestic relationship with them)

Amendments to the Crimes (Domestic and Personal Violence) Act 2007:

default period of AVOs will be extended from one to two years and in certain circumstances can be made for an indefinite period of timeViolence Involving children

Violence Involving children

Art 19 of CROC states that no child should be subject to violence and that it is the responsibility of the state to protect the child from all forms of abuse.

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

covers abuse and neglect. s227 prohibits intentional acts of violence causing harm.

Can children be included in a AVO

Children can be included on an adult's AVO or a separate application or a Child Protection Order can be made. The police is the only one who can apply for an AVO for a child but court can grant it if it is not as stated in s38.

possible outcomes for violence against children

if there is a threat of or actual abuse, an AVO is made.

police can charge the accused

restrict contact by offender with any child at risk

FaCS can apply for a variety of care and protection orders

Violence by children

Child (Criminal Proceedings) Act 1987 (NSW) - children under 10 cannot be guilty of a criminal offence due to doli incapax

10-14; onus is on prosecution to rebut presumption of doli incapax.

If a charge is laid, child will face Children's Court but Young Offenders Act 1997 (NSW) provides alternate options (warnings, cautions, youth justice conference) with aim to stop recidivism.