HSC Legal Studies - Family 2

ADVOs lego

Crimes (Domestic and Personal Violence) Act 2007 (NSW) \[CDPV\], Part 4

What is ADVO

ADVOs are a specific type of Apprehended Violence Order (AVO) issued under Part 4 of the CDPV 2007, where the perpetrator of violence is a family member

issues relating to DV and family violence

CDPV 2007

Why is DV an issue? (stats)

* “43% of all NSW murders were DV related” (BOCSAR, 2021)
* “From 2018-2022, breach of ADVOs was up 8.9% (BOCSAR, 2022)

ADVO pos

Meeting society’s needs, accessible, responsive

* means of reducing DV, quick, inexpensive and accessible
* complemented and supported by the full weight of crim. law if beached

What did Family Law Legislation (Family Violence and Other Measures) Act 2011 (Cth) do

**refined DV and placed more weight on the safety of the child.**

* ‘family violence’ would also be redefined to include actual or threatened conduct that causes a family member to reasonably fear or be concerned about their safety.

CDPV Amendment Act 2013 for what

allowed police to issue ADVOs = increase accessibility

* police prep application for court = support from police DV liaison officers

ADVO pos for women (stats, media)

“98% of women who experienced physical violence, no longer did after taking out an AVO”

“24% of women had experienced stalking before an AVO was taken out, compared to 3.7% after an order was made”

(SMH, 2015)

ADVO pos (obtaining ADVO)

* easy to obtain
* do not require proof of actual violence
* test for AVOs is ‘balance of probabilities’ instead of ‘beyond reasonable doubt’

ADVO pos (deterrence)

A person who is found to be breaching an ADVO by an act of violence against a person

* sentenced to a term of imprisonment (up to 2 years) in accordance with s14(4) of CDPV

ADVOs pos (flexibility, responsive)

ADVOs can be tailored to individual circumstances to provide the best possible protection

ADVOs neg (quote)

Inconsistency

* “There is no question that apprehended violence orders are effective, but they are not a miracle cure” (Dr Weatherburn, 2015)

ADVOs neg (weaken)

FC/FCC can make an order that is inconsistent with the state/territory order

* these orders can weaken the ADVO and make it more difficult for police to enforce

ADVO neg (compliance, enforceability)

Rely on individual’s voluntary compliance w/ the law, active policing of the ADVO, and the victim’s willingness to report any breaches to the police

ADVO neg (case)

R v Gavin John De Beyer \[2017\] NSWSC

* offender, Gavin De Beyer, was subject to and breached an apprehended domestic violence order for the protection of the victim at the time of her death. 

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What is surrogacy?

Surrogacy involves an agreement between a commissioning couple and a woman, where the woman agrees to bear a child for the commissioning couple and then give the child to the couple when the child is born. 

Surrogacy pos

Effective law reform

* Before the commencement of the __*Surrogacy Act 2010 (NSW)*__, in most cases in New South Wales, the __*Status of Children Act 1996 (NSW)*__ meant that a child’s legal parents were presumed to be the birth parents. 
* intended parents not recognised as legal parents

Surrogacy Act 2010

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* introduced a system of parenting orders where parties can apply to the NSW Supreme Court for an order to transfer full legal parentage of the child from the birth parent in a surrogacy arrangement to the commissioning parent. 
* Grant the commissioning parents full legal capacity to make decisions in the child’s interests
* Aim to provide relief and certainty for all parties involved in surrogacy arrangements

Parentage order requirements (surrogacy)

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* An order can be made only if it is in the best interests of the child. 
* Protecting best interests of children who are born in surrogacy agreements 
* The parties must have counselling and legal advice before entering into a surrogacy arrangement to ensure that they fully understand the implications, and the arrangement must be in writing
* Makes sure parties thoroughly understand the psychological, social and legal complexity of their decisions and the impact on the child.

Surrogacy neg

Enforceability/non-compliance

* No legal obligation for the surrogate mother to hand the child over to the intended parents 
* Under the __Status of Children Act 1996 (NSW)__, the mother of the child is defined as the woman who physically gives birth to the child unless legally relinquished. 
* Led to a multitude of issues, especially in altruistic surrogacies, with the lack of contact between the surrogate mother and the intended parents meaning the parents have no guarantee they will receive the child or have any legal rights to the child following the birth 

Surrogacy neg (media)

“Australians account for 25% of all international surrogacy arrangements.” (SMH, 2015)

“There have been no prosecutions under Australian surrogacy laws in the last 10 years, but it's clear they are being flouted.” (ABC, 2017)

“the number of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically” (ABC, 2014)

surrogacy neg (intl)

Moral and ethical issues

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* The problematic nature of international surrogacy was raised in 2014 when an Australian couple who had entered into a surrogacy arrangement refused to take both children when the surrogate mother gave birth to twins.
* **Baby Gammy Case (2014)**: highlights issues with international surrogacy 
* The surrogacy was illegally commissioned by Australian parents, pregnancy resulted in a set of twins 
* However, upon discovering one of the twins had down-syndrome, the intended parents abandoned the child and did not register a birth certificate, effectively leaving the child stateless
* Raises issues around the exploitation of women in poor or developing nations and concerns surrounding the welfare of any child born in such arrangements

FDR lego

FLA 1975

What is FDR?

‘a non-judicial process in which an independent practitioner helps people affected by a separation or divorce resolve some of their disputes with each other.’ (s10F, FLA)

What can FDR include?

reconciliation counselling, post-separation parenting programs and predominantly, mediation

FDR pos

Accessibility, resource efficiency

* less costly alternative to court proceedings for parties involved, govt subsidises
* 65 FRCs in NSW to increase accessibility

FDR pos (media)

“It helps separating parents avoid court proceedings, court proceedings and family law are expensive, lengthy and deeply distressing so it's good for families and good for our community.” (ABC, 2017)

“The key purposes for referral to FDR are to resolve parenting disputes (77%) and to minimise legal costs (66%)” (CLFS, 2016)

“those who use FDR are more satisfied (73.6%) than those who use lawyers (60%) and courts.” (AIFS, 2016)

“Effective in identifying family violence and child abuse” (Attorney-General Evaluation, 2009)

FDR negs

limited in dealing with complex family issues, identifies but fails to address

“Screening, risk assessment and risk management occurs in an inconsistent and piecemeal way across the system” (AIFS, 2016)

“When asked whether the family law system protects children’s safety, as it is required to do, barely half of mothers (53%) and fathers (48%) agreed.” (Conversation, 2020)