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 1900 (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.

• Parental responsibility does not need to be equal if there is history of family violence.

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

• SECTION 27: mandatory reporting if there are reasonable grounds to suspect that a child is at “risk of significant harm” (ROSH) – requires certain professionals such as teachers, doctors, and nurses to report suspected cased of child abuse or neglect to the DCJ.

• SECTION 43: if the Secretary or a police officer is satisfied the child is at immediate risk of harm, or an AVO would not be sufficient, they may remove them from the place of risk without warrant.

• Section 227 + 228: a person who intentionally abuses or neglects a child will receive the maximum penalty of 200 penalty units ($22,000), 2 years imprisonment, or both.

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.

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 - death ‘preventable’ if the case was better handled.

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.

MEDIA: More than 113,000 Risk of Significant Harm (ROSH) reports made to DCJ – Daily Telegraph 2025 - CARE AND PROTECTION OF CHILDREN

• 113,246 Risk of Significant Harm (ROSH) reports about suspected neglect or abuse were made by healthcare workers, teachers and social workers to the DCJ in the 2023-24 financial year – highest since the pandemic began.

• Some vulnerable NSW children in state care have been neglected by government-contracted providers, gaining access to illicit drugs and running amok.

• There is too much reliance on crisis responses rather than early intervention – the system is overwhelmed and unable to appropriately respond to all cases. Places strain on the workforce – caseworker turnover and burnout are making it difficult to deliver the attention and continuity children need.

• Article raises awareness about prevailing care and protection issues, encouraging the public to pressure the government to reform.

• Shows ineffectiveness of the DCJ’s approach to reporting.

Parental Responsibility - CONTEMPORARY ISSUES CONCERNING FAMILY LAW

The legal obligations, duties, and powers of a parent to their child, focusing on maintaining positive and supportive family structures.

• Moved away from custody and control of children to focus on parental responsibility and the rights of children to have a meaningful relationship with both parents.

• In more than 60% of parenting plans and orders, children spend more than half of their time with their mother.

Legal Parentage - CHANGING NATURE OF PARENTAL RESPONSIBILITY

Regulated under the Status of Children Act 1988 (NSW) → addresses the recognition of a person as the legal parent of a child, including complex scenarios like genetic material providers, adoptive parents, and stepparents.

• Only adults legally authorised to exercise parental responsibility are the ‘parents’ of a child.

• Ensures ex-nuptial children are treated the same as children born within the marriage.

Family Law Act 1975 (Cth) - CHANGING NATURE OF PARENTAL RESPONSIBILITY

Governing principle guiding the court in parenting and post-separation management is the best interests of the child (Section 60CC) – upholds CROC (1989) and the ICCPR (1976).

• Child needs to be protected from physical and psychological harm.

• Benefit of meaningful relationships with both parents - right to know and be cared for and have contact with both parents.

M v M (1988) - CHANGING NATURE OF PARENTAL RESPONSIBILITY

Highlights the best interests of the child as the paramount consideration.

• The mother of the victim has suspicions that the father had sexually abused their 4-year-old daughter, based on comments the child said to her.

• The mother applied for an order suspending the previous order that allowed the father access to the child.

• The High Court held that a parenting order ought not to be made if such Order exposes the child to an ‘unacceptable risk’ of harm.

Family Law Amendment (Shared Parental Responsibility) Act 2006 - CHANGING NATURE OF PARENTAL RESPONSIBILITY

Shift in focus from the parent’s right to have the child live with them, to the child’s right to have a meaningful relationship with, and be cared for by, both parents.

• Inserted a presumption of equal shared parenting upon separation.

• Introduced parenting plans and mandatory mediation sessions.

• Introduced Family Relationship Centres.

• Included two types of considerations in respect of the child’s best interests – primary (positive and meaningful relationships with both parents, protection from abuse and violence) and additional (child’s wishes, nature of relationship with parents, financial ability, intellectual and emotional needs).

2011 Amendment (Family Violence and Other Measures) - CHANGING NATURE OF PARENTAL RESPONSIBILITY

Deals with parenting cases where violence is an issue, broadening definitions of ‘family violence’ and prioritising children’s safety.

• Created in response to findings of the ‘Time for Action: National Plan to Reduce Violence against Women and their Children 2009-2021.’

• Recognises the need to protect children from harm and aims to prioritise children’s safety, rather than ensuring a meaningful relationship.

• It is criticised as partners may make false claims of violence to strengthen their chances of receiving parental responsibility and only 6% of children from broken families had equal time with both parents (2005).

NGOs: Lone Father’s Association of Australia Inc. CHANGING NATURE OF PARENTAL RESPONSIBILITY

An NGO established in 1975 as an advocacy group for separated parents, offering counselling, legal support, and advice for fathers.

• Born from the disproportionate favour given to women in custody cases which often left fathers with limited access to their children.

• Plays a pivotal role as an advisory body to the Australian Government – was instrumental in the 2006 amendments to the Family Law Act which introduced shared and equal parental responsibility.

Media: Fathers Losing Even More Ground in the Family Court – Family Voice, 2023 - CHANGING NATURE OF PARENTAL RESPONSIBILITY

Discusses the proposal to remove the order for ‘equal shared parental responsibility’, raising concerns about the disadvantage fathers face in the current system.

• Fathers are much less likely to be awarded custody of their children – almost half of male suicides in the country are linked to family law issues such as custody battles.

• Raises awareness about the risks of a potential amendment, encouraging the public to pressure the government to repeal the decision – reflects changing social values regarding the fitness of fathers to take on parental responsibility.

Effectiveness of Responses - CHANGING NATURE OF PARENTAL RESPONSIBILITY

• Views about men and women have expanded to accommodate a much wider range of roles for fathers – many believe fathers are equally capable of parenting.

• Reforms have continually built on the notion of the ‘best interests of the child.’

• More children are spending substantial time with both parents (16% in 2009).

• Fewer matters regarding the care of children are going to court.

Ineffectiveness of Responses - CHANGING NATURE OF PARENTAL RESPONSIBILITY

• The child support scheme is still problematic in some cases where parents significantly reduce taxable income to reduce payments.

• Children under 4 in shared parenting arrangements don’t do as well as other children in developmental measures.

• Concern by men’s groups that latest amendments will erode gains made via shared-parenting legislation – balancing rights of competing stakeholders.

Surrogacy and Birth Technologies - CONTEMPORARY ISSUES CONCERNING FAMILY LAW

• Artificial Insemination - sperm medically implemented into the uterus.

• In-Vitro Fertilisation - fertilisation takes place outside the uterus using the sperm and ovum, and the resulting embryo is then implanted into the uterus.

• Gene Technologies - gene shearing or donation.

Presumption of Paternity - SURROGACY AND BIRTH TECHNOLOGIES

Automatic and is refutable if the couple are married or in a de facto relationship – when a woman becomes pregnant using donor sperm, that man (biological father) is presumed NOT to be the father of the child born. The social father IS.

• The woman who bears the child IS the legal mother.

• Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 - a child born to a lesbian couple through artificial reproductive technology can have TWO legal mothers

B v J 1996 - SURROGACY AND BIRTH TECHNOLOGIES

• The father refused to pay maintenance, arguing the child was not his and the maintenance was the responsibility of the sperm donor because his name appeared on the child’s birth certificate.

• The court rejected this argument under the ‘presumption of paternity’ because he automatically became the child’s father when he was in a relationship with the child’s mother – he therefore had all the obligations in respect of the maintenance and care of the child.

Re Patrick (2002) - SURROGACY AND BIRTH TECHNOLOGIES

• A homosexual man donated his sperm to a lesbian couple believing that he would have twice weekly contact with the child.

• The Family Court declared that a sperm donor is NOT a parent under the Family Law Act 1975 (Cth), however he was granted regular contact as the court considered it to be in the child’s best interests.

Surrogacy - SURROGACY AND BIRTH TECHNOLOGIES

Involves an agreement between a commissioning couple and a woman, where the woman agrees to bear a child for the commissioning couple.

• Altruistic: surrogate mother does NOT make a profit → LEGAL in all states and territories.

• Commercial: surrogate mothers receives money for the service → ILLEGAL in Australia (2 yrs imprisonment, $100k fine)

Standing Committee of Attorneys-General (SCAG) - SURROGACY AND BIRTH TECHNOLOGIES

A ministerial council drawn from state and Commonwealth parliaments agreed that a national model law regulating surrogacy was needed. In 2010, the standing committee released a draft of 15 principles for a national surrogacy model including:

• informed consent of all parties is essential

• specialist counselling

• court orders should be available to recognise the commissioning parents as the legal parents

• court orders should NOT be granted for commercial surrogacy

Surrogacy Act 2010 (NSW) - SURROGACY AND BIRTH TECHNOLOGIES

Act allows commissioning parents to apply for a Court order which facilitates the transfer of parenting from the birth mother to the intended parents.

• arrangements must be in the best interests of the child

• must be altruistic

• proven medical or social need for the surrogate

• parties must be counselled and consent to the order

• order must be applied for between 30 days and 6 months after the child’s birth

NGO: Surrogacy Australia - SURROGACY AND BIRTH TECHNOLOGIES

A non-for-profit organisation that educates and supports individuals about surrogacy and promotes ethical options for couples.

• Mission is to enhance the understanding of, and access to the best practice surrogacy arrangements through education and support.

MEDIA: The Feed: A single father through surrogacy (SBS, 2022) - SURROGACY AND BIRTH TECHNOLOGIES

Details the story of the first single father in Australia to have a biological child through surrogacy - reflects changing values towards single fathers.

• Revealed the process took 3.5 years - the first 3 surrogates did not go through, creating severe emotional stress on all parties involved.

Responsiveness of the Law - SURROGACY AND BIRTH TECHNOLOGIES

• Federal legislation has been SLOW to pass laws - courts are constrained by existing legislation.

• INCONSISTENCIES remain between states and territories.

• Surrogacy Act encourages parties to UNDERSTAND the psychological, social and legal complexity of their decisions - increases legal certainty and protects the interests of children born.

Same-Sex Relationships - CONTEMPORARY ISSUES CONCERNING FAMILY LAW

De facto same sex couples effectively now enjoy the same rights as married couples - law has consistently reformed.

• Marriage Act 1961 (Cth) - gave heterosexual couples a number of a rights and obligations from which same-sex couples were EXCLUDED, reliance on courts to apply common law precedents.

• 1972 - South Australia decriminalised homosexuality.

• Sex Discrimination Act 1984 (Cth) - prohibits discrimination on the grounds of sex and marital status.

• 1997 - Tasmania were the last Australian jurisdiction to decriminalise honosexuality.

• 2001 - Netherlands were the first country to legalise same-sex marriage.

Toonen v Australia (1991) - SAME-SEX RELATIONSHIPS

• Toonen complained to the UN Human Rights Committee, arguing Tasmania’s criminalisation of homosexual sex criminalised his right to privacy under Article 17 of the ICCPR.

• In 1994, the Council agreed Australia was in breached of the treaty – in response the Commonwealth Government passed a law overriding Tasmania’s criminalisation of homosexual sex.

Same-Sex Relationships (Equal Treatment in Commonwealth Laws Reform) Act 2008 (Cth) - SAME-SEX RELATIONSHIPS

In response to the Australian Human Right’s Commission Report, Same-Sex: Same Entitlements (2007) → the federal government implemented the 2008 Same-Sex Law Reforms.

• Amended 84 Commonwealth Acts to remove discrimination in areas including Medicare, tax, social security, family law, superannuation, workers compensation, child support.

Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) - SAME-SEX RELATIONSHIPS

Granted equal parenting rights to lesbian couples who have children born through Assisted Reproductive Technology.

• Enables both mothers to be listed on the child’s birth certificate and gives the child equal rights to inheritance from both parents.

• Word ‘spouse’ includes same-sex partners.

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) - SAME-SEX RELATIONSHIPS

61.1% of Australians who voted in the plebiscite believed that the law should be changed to allow same-sex couples to marry.

• Amendment omitted “a man and a woman” in the definition - substituted it with “2 people”, allowing people of same-sex to marry.

NGO: NSW Gay and Lesbian Rights Lobby - SAME-SEX RELATIONSHIPS

Actively campaign and lobby for the legal rights and social equity of gap couples.

• Has a wide-ranging agenda, including advocacy, lobbying government and the media to address discrimination, hosting consultations, educating the LGBTQIA+ community on their rights, providing referrals to legal and welfare services.

Media: Catholic church ramps up its role in gay marriage debate (News.com.au, 2017) - SAME-SEX RELATIONSHIPS

Catholic Church distributed information for inclusion in bulletins and leaflets urging parishioners to vote No - “change has consequences for the freedom of religion.”

Responsiveness of the Law - SAME-SEX RELATIONSHIPS

• Significant improvements over time reflects CHANGING SOCIETAL VALUES around equality and human rights.

• Australia was relatively LATE in legalising same-sex marriage compared to other Western countries.

• RELIGIONS can still discriminate against same-sex couples.

• Recognition of gender-diverse relationships is INCONSISTENT across jurisdictions.