Legal Studies Notes - Family Law

Family Law

Family (Legal Definition) - NATURE OF FAMILY LAW

Two or more people residing together joined by marriage, birth or adoption. The definition is complex due to changing social values.

Nuclear Family - NATURE OF FAMILY LAW

Married male and female parents with children, living under the same roof. Represents only about 33% of Australian households.

Marriage Act 1961 (Cth) - NATURE OF FAMILY LAW

Establishes the legal requirements for a valid marriage in Australia.

Family Law Act 1975 (Cth) - NATURE OF FAMILY LAW

Sets out the legal duties and obligations that a marriage creates. Also establishes the Family Court.

Marriage - NATURE OF FAMILY LAW

The union of two people to the exclusion of all others, voluntarily entered into for life - Marriage Act 1961 (Cth).

• Two individuals make a promise before witnesses to provide/care for each other → law has evolved to enforce this promise and to protect the rights of both parties and

  any children born.

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) - NATURE OF FAMILY LAW

Amended the Marriage Act 1961 (Cth), legalizing same-sex marriage in Australia.

Requirements for a Valid Marriage - NATURE OF FAMILY LAW

• marriageable age

• prohibited relationships

• notice of marriage

• consent

Marriageable Age (under Marriage Act 1961 (Cth) - NATURE OF FAMILY LAW

A person may marry at the age of 18 (s.11). If between the ages of 16 and 18, the parties must apply to a judge or magistrate for an order authorizing the marriage (s.12).

Ex Parte Willis (1997) - NATURE OF FAMILY LAW

• A young women aged 17 sought permission to marry her 22-year-old boyfriend as she was pregnant. The magistrate refused citing the circumstances as not being ‘exceptional or unusual.’

• On appeal, the Supreme Court allowed them to marry, ruling that the circumstances need only be ‘sufficiently exceptional.

Prohibited Relationships (Marriage) - NATURE OF FAMILY LAW

A person cannot marry if they are married to someone else or closely related by blood (consanguinity) or by marriage (affinity).

• A person CAN marry their uncle, or aunt, niece or nephew, or a first cousin.

Notice of Intended Marriage - NATURE OF FAMILY LAW

A couple intending to marry must complete this form and give it to the authorised marriage celebrant no earlier than 18 months and no later than one month and one day before the marriage.

Void Marriage - NATURE OF FAMILY LAW

Declared void (ab initio) or invalid, if it fails to meet the criteria of a valid marriage, such as:

• lack of consent

• bigamy

• underage marriage

• prohibited relationship

• non-compliance with the Marriage Act.

Di Mento v Visalli (1973) - NATURE OF FAMILY LAW

• 14-year-old Mattia Di Mento was kidnapped in Sicily by Visalli, a 20-year-old man. He repeatedly asked her to marry him, but she refused.

• Her father told her he would shoot her if she did not marry Visalli – they eventually married but Di Mento ran away to Australia.

• The court held that the marriage was void because it was obtained by duress from her father.

Alternative Family Relationships - NATURE OF FAMILY LAW

• First Nation’s peoples customary law marriages

• de facto relationships

• single-parent families

• blended families

• same-sex marriages

• stepfamily

First Nations People’s Customary Law Marriages - NATURE OF FAMILY LAW

Marriages within First Nations communities are bound by traditions and enforced through customary law. Not formally recognized under the Marriage Act 1961 (Cth).

• Regarded as de facto relationships.

• The Australian Law Reform Commission recommended the court take into account ATSI culture and kinship, ex-nuptial and nuptial children are protected under the Status of Children Act 1996 (NSW) and the Family Law Act (1975).

De Facto Relationship - NATURE OF FAMILY LAW

A relationship where the partners act as a married couple but are not legally married. Must meet specific criteria under Section 4AA of the Family Law Act 1975 (Cth).

• not married

• not related by family

• living together on a genuine domestic basis as a couple

• have cohabited for a minimum of 2 years unless they have a child together

• can be of the same sex

Blended Family - NATURE OF FAMILY LAW

A couple family with at least one child who is the stepchild of one of the partners and at least one child who is the natural or adopted child of both partners.

• 99,564 blended families in 2021.

Stepfamily - NATURE OF FAMILY LAW

A couple family in which one or more children is the stepchild of one of the partners, and the couple has no natural or adopted children together. Stepparents do not have the same legal responsibilities as biological parents.

• do not have an automatic right or duty to discipline their partner’s child or to make day-to-day decisions.

• those intending to adopt must apply to the Family Court followed by the Supreme Court for an adoption order → must have lived with the child for no less than 2 years, and the child must be at least 5.

Convention on the Rights of the Child (1989) - NATURE OF FAMILY LAW

Declares that people under 18 must be protected from violence, discrimination, exploitation, and neglect.

• Australia ratified it in 1990.

• 54 articles.

Children and Young Persons (Care and Protection) Act 1998 (NSW) - NATURE OF FAMILY LAW

Parents that do not provide the basic requirements for proper development may face criminal prosecution for neglect under this NSW Act.

• Fines of up to $22,000 and a jail term of up to 5 years (s.228).

• Implemented by the NSW Department of Communities and Justice.

ABC News 2019 Article - NATURE OF FAMILY LAW

SYDNEY PARENTS WHO FED DAUGHTER CONSERVATIVE VEGAN DIET ESCAPE JAIL:

• Two parents were sentenced to 18 months of an Intensive Correction Order and 300 hours of community service after their baby suffered severe malnutrition and developmental delays due to a restrictive vegan diet.

• She was severely underweight, suffered from rickets, osteopenia, and missed key developmental milestones.

Education Act 1990 (NSW) - Right to Education - NATURE OF FAMILY LAW

Compulsory to attend an educational facility from age 6–17. Failure to enroll a child or give them access to education carries fines of up to $5500 or community service for children aged over 15.

• Parents have a right to choose where their child will be educated.

• Can be done from home as long as it meets standards of NESA.

Crimes Amendment (Child Protection-Physical Mistreatment) Act 2001 (NSW) - Right to Discipline - NATURE OF FAMILY LAW

Force applied to any part of the head or neck or to any other part of the body that results in bruising, marking or other injury last longer than a ‘short period’ is unreasonable.

Status of Children Act 1996 (NSW) - Separated Parental Obligations - NATURE OF FAMILY LAW

Gives ex-nuptial children the same rights as those born to parents who are married.

Family Law Amendment Act 2013 (Cth) - Separated Parental Obligations - NATURE OF FAMILY LAW

Ensures that the best interests of the child is the chief factor that courts take into consideration when parents separate.

• Removed the presumption of shared parental responsibility.

• Introduced the Child Support Scheme to enforce maintenance orders on parents who do not reside with their dependent children.

Minors (Property and Contracts) Act 1970 (NSW) - Medical Treatment - NATURE OF FAMILY LAW

Parents are responsible for ensuring that appropriate medical and dental care are available for their child. For children under 14, parental consent is generally required.

• If parents refuse medical or dental treatment, a court can authorise it (s.49).

Brisbane Times Articles 2018 - NATURE OF FAMILY LAW

COURT RULES DOCTORS CAN OPERATE ON BABY'S BRAIN AGAINST PARENTS' WISHES:

• A baby suffering from a severe form of epilepsy underwent brain surgery, after the Supreme Court ruled it was in the child’s best interests.

• He received alternative treatments such as cannabis oil and a ketogenic diet, and traditional remedies including treatment with holy water and prayers by a monk.

• These treatments were deemed ineffective however the baby’s parents refused to consent to an operation – the court overruled this.

Children (Criminal Proceedings) Act 1987 (NSW) - Legal Rights of Children - NATURE OF FAMILY LAW

Governs criminal proceedings against children in the Children’s Court. Children should be treated differently from adult offenders.

Children and Young Persons (Care and Protection) Act 1998 (NSW) - Legal Rights of Children - NATURE OF FAMILY LAW

Designed to safeguard children who are at risk of harm or neglect. Includes child protection, mandatory reporting, intervention, and court orders.

Adoption - NATURE OF FAMILY LAW

The legal process of transferring parental rights and responsibilities from the biological parents to the adoptive parents. Governed by the Adoption Act 2000 (NSW).

• Rate of adoption has fallen from 9798 in 1971-1972 to 208 in 2021-2022 - reflects changing values.

• Made through the NSW Department of Communities and Justice.

• Adoptive parents must be over 21 but under 51 - females must be at least 16 years older than the child, and males must be at least 18 years older than the child.

Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) - NATURE OF FAMILY LAW

Governs overseas adoptions, requiring visa validation and health checks before granting full citizenship.

• Attorney-General’s department established Intercountry Adoption Australia in 2015 - includes a website providing advice, links to relevant sites, and a telephone advice line.

• Number of children being adopted has declined globally.

Divorce - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

The legal dissolution/termination of a marriage by an official court decision. The only ground for divorce is the irretrievable breakdown of the marriage (Family Law Act 1975 (Cth) s.48).

• ‘No Fault’ divorce system.

• 30% of marriages end in divorce (2021 Census).

• Median duration of marriage is 13 years.

Family Law Act 1975 (Cth) - Divorce - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Designed to encourage parties to seek an amicable resolution, e.g., the use of counselling services.

• Removed the need to find fault referred to in the Matrimonial Causes Act 1959 (Cth) - adultery, cruelty, imprisonment, desertion - ACID.

• Allows for one period of reconciliation of up to 3 months during the 12 month separation period - ‘kiss and make up clause’ (s.50)

• If married for less than 2 years, parties must attend family counselling before divorce.

Stages of Divorce (ALCO) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

• filing for divorce (APPLYING)

• living separately for at least 12 months (LIVING)

• attending counselling (if required) (COUNSELLING)

• and orders (decree nisi, decree absolute, divorce order) (ORDERS)

Separation - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

The legal termination of a relationship.

• No application for divorce will be approved until the court is satisfied that there are proper arrangements in place for the care of the children.

• Section 60CC of the Family Law Act considers the child’s best interests when deciding a parenting order.

Parenting Plans (S.64B of Family Law Reform Act 1995 (Cth) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Written agreements voluntarily agreed to by parents and affirmed by the court. They deal with aspects of a child’s care and wellbeing, such as living arrangements and educational needs.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Introduced compulsory mediation and established 65 Family Relationship Centres to encourage an amicable resolution.

• If parents cannot agree, they will be issued with a parenting order (s.60CA) which is court imposed.

• Introduced presumption that equal shared responsibility is in the best interests of the child - has since been reversed by the 2023 Amendment.

• Legislation did not adequately deal with family violence, and children’s views were not given enough weight.

Child Support - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Financial payments made by parents who have separated, designed to ensure children receive adequate support.

• Child Support (Assessment) Act 1989 (Cth) – introduced a formula for the calculation of child support owed, using an administrative rather than judicial procedure.

• Child Support (Registration and Collection) Act 1988 (Cth) - shifted the collection and enforcement of child support from the courts to an administrative body.

There is $384 million of child support debt in NSW and ACT.

Property Disputes - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Assets must be separated following a relationship breakdown. The Family Law Act 1975 (Cth) outlines factors the court considers for property settlements.

• Homes, bank accounts, companies and partnerships, shares, superannuation, household goods.

• If couples reach an amicable agreement, they can make it binding through a consent order or financial agreement made by the Federal Circuit and Family Court.

• Must attend a mediation conference.

• No set formula for the distribution of property.

Farmer v Bramley (2000) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

8 months after the separation but before they reached a property settlement, the husband won $5 million in lotto. He arranged his finances to reduce his child support liability, gambled over $100,000 and tried to claim he didn’t win the lotto, but his mum did.

• The court held that the post-separation lottery win was available for distribution between the parties due to the wife’s contributions during the relationship, the disparity in their financial circumstances, and the wife’s ongoing care of the child without any support.

• The wife was awarded with $750,000

Financial Agreements (‘Pre-Nups’) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Made between a couple before, during, or at the end of their marriage to protect their property rights in case of separation.

• May include guidelines for the division of property, debt, and other financial concerns if the relationship ends.

• Reduces the combative nature of divorce and separation.

• S.90BC, 90C, and 90B of the Family Law Act 1975 (Cth)

Domestic Violence - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Violence between family members, married, and or de facto couples and/or their children - includes physical, emotional, and financial abuse, isolation, and sexual assault.

• One the main social, judicial, political and economic issues in Australia.

• One woman is killed per week.

• 32,000 domestic-related assaults in 2021 (BOCSAR).

National Plan to End Violence against Women and their Children 2022-2032 - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

New plan highlights what is required to end gender-based violence including:

• prevention

• early intervention

• response

• recovery and healing

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Broadened the definition of domestic violence to include controlling or coercive behavior and serious neglect of a child.

• Court’s had to follow new provisions for child-related cases in order to deliver on a child’s best interests.

Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Implementation of 10 days of paid DFV leave compared to two days of unpaid leave available previously – available to any worker in Australia.

• In the best interests of the child - Article 3 CROC 1989.

Battered-Wife Syndrome - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

A partial defense that can be used in situations where a wife kills her abusive husband – used only as evidence to support other defenses such as provocation, self- defense, insanity, and diminished responsibility.

• R v Osland 1996 created a precedent that now extends to de-facto and same sex couples.

Crimes (Domestic and Personal Violence) Act 2007 (NSW) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Describes DV as personal violence committed against someone with whom the offender has, or has had a ‘domestic relationship'.’

• Section 9: victims and police officers can apply for an Apprehended Domestic Violence Order (ADVO) → first introduced under the Crimes Amendment Act 1983 (NSW).

• Lists behaviours the defendant must not do → breaches of ADVOs carry a sentence of up to 2 years imprisonment and/or a $5500 fine.

• 34% are breached in the first month, 22.9% of domestic homicides involved a current ADVO.

• 2014 Amendment empowers senior police to issue urgent on-the-spot ADVOS where a person needs immediate protection.

Crimes Act 1990 (NSW) - Section 37 - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

In 2018, harsher penalties were added for perpetrators of choking, strangling or suffocating their victims.

• Increased max sentence from 2 to 5 years.

• Allows ADVOs to remain in force for 2 years.

Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW) - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Amended the Bail Act 2013 (NSW), making it harder for alleged DV offenders to receive bail – created in response to the Molly Ticehurst case.

• Reversed the presumption of bail for serious DV offences that carry a max 14 year sentence - offenders must ‘show cause’ as to why they should not be held in remand.

• If released on bail, accused must wear electronic ankle-monitoring - has decreased reoffending by 33%.

Violence Involving Children - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

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

Children can be included on an adult’s ADVO application or on a separate child protection order made by the Children’s Court.

• Only police officers can apply for an ADVO for children under 16.

• Some professionals are obliged to report children at risk to NSW Community Services - mandatory reporting.

Relationships NSW - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

An NGO that aims to encourage the building and maintenance of safe and respectful relationships.

• Provides counselling, mediation, and educational service, e.g., Men’s Behaviour Change Program.

• Facilitate safe and supervised interactions between children and non-residential parents.

St Vincent de Paul Society - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

An NGO that provides a comprehensive response to domestic violence.

• Offer crisis and medium-term housing outcomes.

• Provide clothing and other essential items.

• Assist in the replacement of identification documents.

• Counselling services.

Family Dispute Resolution - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

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 – Section 10F of the Family Law Act 1975 (Cth).

• Services are provided by Family Relationship Centres: reconciliation counselling, post-separation parenting programs, and mediation.

• 95% of disputes are settled outside of court.

• Couples must make a genuine effort to resolve an issue using dispute resolution methods (Section 60).

Federal Circuit and Family Court of Australia - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Deals with all issues relating to the Family Law Act 1975 (Cth) – focuses more on reconciliation and compliance than enforcement through sanctions.

• Specialist and closed court with sensitive judges - aimed at reducing stress on parties.

• Expensive and decisions are not reached amicably.

• Merged in 2021 to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible.

Adjudication - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

The determination of a matter by a court judgement or ruling.

The Children’s Court - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Hears cases relating to the care and protection of children under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

• Usually brought by Community Services - may need to supervise parents to ensure they fulfil parental responsibilities.

• Informal proceedings, closed court, all steps are explained to the child.

• ‘Very highly probable’ the child is is need of care.

• Can make court orders - may decide to place the child with a relative, foster family or other appropriate adult.

The Local Court - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Responsible for the granting of ADVOs.

• Lacks effectiveness - does little to deter offenders.

Non-Government Organisations - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Provide support for families and individuals who may be struggling with personal relationships and other family issues.

• Can be religious or non-religious.

• Provide mentoring, support for new parents, counselling, relationship advice, advice on parenting plans.

• Often dependent on donations and the goodwill of volunteers.

• Under the ‘Keep Them Safe’ Initiative, NGOs are encouraged to take over the provision of services that are currently delivered by the state, e.g., Barnados (adoption).

Media - RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

Major media outlets publish high-profile cases:

• Raises awareness about family violence.

• Used by the Family Law Court to provide self-help guides, brochures, forms and links, and the National Enquiry Centre to answer general enquiries and individual cases.

• Courts must protect the privacy of individuals.

Care and Protection of Children - CONTEMPORARY ISSUES CONCERNING FAMILY LAW

Refers to preventing and responding to violence, exploitation, abuse, neglect, and harmful practices against children.

• Parents must act in the child’s best interests.

• The law has shifted from parents seeking ‘custody and control’ to greater emphasis on the rights of young people.

• Australia ratified CROC in 1990 - right to adequate and proper parenting, protection from harm, and meaningful involvement in their lives by both parents.

• Emotional abuse is the most common type of child mistreatment.

Parens Patriae - CARE AND PROTECTION OF CHILDREN

If conflict arises, courts retain the right to override the wishes of parents and children and act in what they consider to be in the child’s best interests – e.g., court order for medical treatment.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) - CARE AND PROTECTION OF CHILDREN

Aims to ensure that children have a meaningful relationship with both of their parents and their best interests are considered by the court.

• However, now parental responsibility does not need to be equal if there is any history of violence or abuse.

Children and Young Persons (Care and Protection) Act 1988 (NSW) - CARE AND PROTECTION OF CHILDREN

Focused on safeguarding the health and wellbeing of children, including protection from violence or abuse – promotes the best interests of the child.

• Mandatory reporting of concerns to Community Services – teachers, doctors, nurses and other professionals must report if they believe there is a risk of harm.

• Fines of up to $22,000 for neglect

R v Thomas Sam; R v Manju (2009) - CARE AND PROTECTION OF CHILDREN

Nine-month-old Gloria Thomas died in May 2002, from severe sepsis which caused bleeding in her lungs and airways.

• She suffered from severe eczema, however the parents ignored warning signs and failed to take her to two specialist dermatologist appointments.

• The parents were found guilty of manslaughter.

Children’s Court - CARE AND PROTECTION OF CHILDREN

Hears cases relating to the care and protection of children under the Children and Young Persons (Care and Protection) Act 1988 (NSW).

• Closed court, informal proceedings, specially trained magistrate.

• The court can make a variety of orders to remove a child from a dysfunctional family (e.g., Care Order and Care Plan).

• Child may be placed with a relative or foster family or another appropriate adult - contact visits may be permitted to allow parents and the child to maintain a relationship - such visits are supervised and regulated.

Office of the Children’s Guardian - CARE AND PROTECTION OF CHILDREN

Independent government agency that administers the Working with Children’s Check → Child Protection (Working with Children) Act 2012.

• Ensures individuals have no history of child abuse of inappropriate behaviour - valid for 5 years.

Keep Them Safe Program - CARE AND PROTECTION OF CHILDREN

Following the 2007 Ombudsman Annual Report and the Ebony case, the government conducted the Wood Inquiry into Child Protection Services in NSW.

• Passed the Children and Young Persons (Wood Inquiry Recommendations) Act 2009 (NSW) - implemented 106 recommendations over 5 years including mandatory reporting, referral services, enhanced information exchange between service providers, and improved court processes.

• The number of ‘at risk of harm’ notifications made to Community Services has increased steadily.

• Almost ¾ children reported as ‘at risk of harm’ didn’t get a face-to-face meeting with a caseworker.

Non-Government Organisations - CARE AND PROTECTION OF CHILDREN

The Child Protection Legislation Amendment Act 2013 (NSW) transferred the responsibility from FACS (Family and Community Services) to NGOS for early intervention programs to prevent abuse/neglect.

• Bravehearts - called on the government for a Royal Commission into the family law systems to fix ongoing failures, provide counselling and online courses, access to information.

• NGOs are significantly underfunded and understaffed, limiting their impact.

R v BW and SW (2009) - CARE AND PROTECTION OF CHILDREN

7-year-old Ebony died following starvation and neglect over a 20-month period – she weighed just 9kg.

• Ebony’s mother was convicted of murder (40-year sentence) and her father was convicted of manslaughter (16-year sentence).

• Disability Services Australia, NSW Education, public housing, and other agencies tried to intervene but failed.