family law

1. nature of family law

the concept of family law

federal jurisdiction (allocated by s51 constitution): marriage, divorce, guardianship/custody and maintenance of children, de facto (since 2008 when states referred powers)

state jurisdiction: same sex couples, alternative family arrangements, adoption, child welfare, Children’s Court, Surrogacy, IVF, criminal law (eg. domestic violence)

Definitions of family:

ABS: defined as two or more persons, one of whom isat least 15 years of age, who are related by blood, marriage, adoption, step or fostering, and are usually resident in the same household

article 16 UDHR and article 23 ICCPR: the family is the natural and fundamental group unit of society and is entitled to protection by society and the state

legal requirements of marriage

the marriage act (1961) (Cth) defines marriage as ‘the union of 2 people to the exclusion of al others, voluntarily entered into for life’ outlines the certain requirements which must be met for a marriage to be legally valid within Australia:

voluntary: must be entered into voluntarily, not legally binding if one party was forced or tricked into marriage
gender: 2004 marriage amendment act added above definition “union of man and woman to exclusion of all others”. overseas marriages weren’t recognised. 22 unsuccessful attempts to legalise gay marriage, act finally amended 2017
marriagable age: must be 18. if either party are 16-18, must apply to magistrate, will only be granted if circumstances are sufficiently ‘exceptional or unusual’
prohibited relationships: can’t marry anyone related by “consanguinity” or “affinity”. can’t marry half-siblings, adopted or step siblings. however can marry aunt, uncle, first cousin
notice of marriage: forms must be filled out one month one day - 18 months before marriage. evidence of age, if married previously proof of death or divorce

if any of these aren’t fufilled, court can nullify marriage. however children born during marriage are considered to be legitimate children of the marriage

for a valid marriage ceremony:

authorised celebrant perform the ceremony
2 witnesses over 18
issues 3 marriage certificates, 1 must be lodged at state registry of briths, deaths and marriages within 14 days

alternative family relationships

Aboriginal and Torres Strait Islander customary marriages: bound by customary law and therefore aren’t formally recognised. ALRC 1986 reccommended customary marriages given legal recognition eg. for tax, wills, divorce etc. only implemented change was to family act 1975, stating parental responsibility must take into account the kinship of child
single parent families: increasing common due to change in attitudes, more divorces, women financial, better welfare. may face increased social issues and difficulty obtaining legal rptoections. The Child Support (Registration and Collection) Act 1988 (Cth) shifted child support from courts to administrative system, the Child Cupport (Assessment) Act 1989 (Cth) introduced a formula
blended families: 1/4 marriages in Aus included a remarriage. step-parents don’t have same legal responsibility, however court can make order requiring finanicially responsible, if duty to child. May also be required if family existed for a long time and biological parent is inaccessible. to adopt, must have lived together for 2+ years, child must be 5+ years old. to claim estate, step-children must be financially dependant
defacto relationships: defined in s44A of the Family Law Act 1975 (Cth). Partners aren’t married, not related, living together on a genuine domestic basis as a couple
Polygamous marriages: no specific reference, not legal in Australia, under s6 of Family Law Act 1975 (Cth) deemed as legally binding for children.

legal rights and obligations of parents and children

Family Law Act 1975 (Cth): ensures the main consideration when making children’s orders is the best interest of the child. s.60B includes protection from harm, abuse or violence, meaningful involvement by both parents, children have right to communication with their parents. The convention on the rights of the child (CROC 1989) was instrumental in establishing rights of the child and was signed by Australia in 1990. eg. article 18: both parents share responsibility for bringing up their children and should always consider what is best for the child.

Law Reform:

Family Law Reform Act 1995: placed emphasis on shared parental responsibility. eg. ‘Rights’ to ‘Responsibility’ ‘access’ changed to ‘contact’ and other various word changes
Family Law Amendment (Shared Parental Responsibility) Act 2006: further amendments that emphasise the child’s right to meaningful family relationships
Family Law Reform Act 1995 (Cth): introduced parenting plans; written agreements voluntarily agreed to. eg. child’s living arrangements, how religious/educational needs will be met etc. if parents can’t agree, will be issued witha court order. in cases of family violence, presumption of ‘equal shared parental responsibility’ doesn’t apply. parental responsibilities not specifically defined in legislation.

Care and Control of Children

Parents must:

care: Children and Young Persons (care and protection) act 1998 (NSW). including adequate housing, medical care, emotional/financial security. if parents are found to have failed duty of care, children can be relocated. case: sydney parents force vegan only diet (2019)
control: parents are responsible for the development of appropriate social skills and monitoring their social behavious under children (protection and parental responsibility) act 1997 (NSW) and crimes amendment (child protection - physical mistreatment) act 2001 (NSW). case: canberra woman sentenced to 200 hours of community service for smacking daughter (2017)
education: education legislation amendment act 2006 (NSW) parents have to send children to school between 6-17 years old. failure to enrole or give child access to education is a criminal offence
medical treatment: Medical treatment (Minors (property and contracts) act 1970 (NSW). under 14 is parent, 14-16 joint, 16+ child. must always act in best medical interests of the child, court can overrule parent decision if this doesn’t happen. parents can be charged with manslaughter for not seeking appropriate treatment.
autonomy of the child: child’s ability to make their own decisions increases with age. 14 can seek medical, 16 can consent, 17 can leave school

Consequences of parental neglect

Neglect is a criminal offence under Children and Young Persons (Care and Protection) Act 1998 (NSW) which carries fines of up to $22,000 and the Crimes Act 1900 (NSW) which provides a jail term of up to 5 years

Department of Community and Justice (DCJ) is main department for enforcing Children and Young Persons act. provide an intervention where abuse or neglect is suspected. can apply to children’s court for an order

ex-nupital children: status of children act 1996 (NSW) gave ex-nupital children same rights as nupital

adoption

legal process where the legal rights and responsbilities for a child are transferred from the biological to adoptive parents. The Adoption Act 2000 (NSW). 208 adoptions 2021-22, decrease from previous years. declined 63$ over past 25 years. international adoption governed by the convention on protection of children and cooperation in respect of intercountry adoption.

in order to adopt must be:

resident/domiciled in NSW
of good repute and fit and proper to fulfil the responsbilities of parenting
over 21 years of age
at least 18 years older than the child
couples (including aboriginal customary marriages) must have been together for 2+ years. Adoption Amendment Act 2008 (NSW), Adoption Amendment (Same Sex Couples) Act 2010

types of adoption:

local: adopting a child within NSW whose parents are making an adoption decision for their child
out of home care: adopting a child in NSW from out of home care
intercountry: adopting a child from overseas (Convention on Protection of children and cooperation in respect of intercountry adoption). NSW legislation is adoption regulation 2003 (NSW). The department of scoial services is the Australian government responsible for adoption matters
special needs: adoption a child with a disability or special needs
inter-family: adopting a step-child or a child within a family

2. responses to problems in family relationships

divorce

legal dissolution of a marriage. under s.48 of the Family Law Act 1975 (Cth), the only grounds for a divorce is the irretrievabl breakdown of a marriage. before this, couples had to apply under the matrimonialcauses act 1959 (Cth) on the ground of ‘fault’. this included adultery, cruelty, insanity or desertion. 49,510 people filed for divorce, divorce rate was 1.9 per 1000 people (ABS, 2020)

must prove have lived separately for at least 12 months (can be under one roof), if married less than two years must attend family counselling, no divorce approved until children have been organised

after children have been organised, a’decree nisi’ will be issued, followed by a ‘decree absolute’ when marriage is legally absolved

under s50 allows one period of reconcilliation up to 3 months in separation that doesn’t cause separation to restart

legal consequences of separation:

children

FLA states best interests are:

the child’s right to maintain a meaningful relationship with both parents
the need to protect the child from harm

the Family Law Legislation (Family Violence and other Measures) Act 2011 swapped these so safety was the top priority. arrangement with children can be worked out together, make a parenting plan in FDR or ask a family court to make a family order (parenting plan plus child maintenance).

Parenting plans must consider the practicality of children having equal time with parents, contact with other family members, and the day-to-day care of the children, and ensure the children maintain their cultural links.

property

Family law act 1975 (Cth) defines property to include homes, bank accounts, companies and partnerships, shares, supperannuation and household goods. if couple want to formalise an agreement, they can apply to the Family Court for consent orders or enter into a financial agreement (written agreement about division of asset, FLA amendments in 2000 made them legally binding).

if dividing property, the court will consider:

financial and non-financial contribution to the property by both parties
age, income, resources of both properties
financial commitments of the parties, including children
ability of each party to maintaain a reasonable standard of living
other contributions such as inheritance

financial agreements: can be made between a couple before, during or at the end of marriage (previously known as pre-nup). may prescribe what property isi ncluded, how it is divided. 2002 amendment made legally binding. couple can apply to have agreement set aside, but this is costly and time-consuming. de facto couples can also make financial agreements.

dealing with domestic violence

Stats: BOCSAR 2020: 44% of murders are DV related, in 2020 over 3200 DV incidents were recorded by NSW police, of which 74% of the perpetrators were male. It is estimated that DV costs the community of NSW $4.5billion annually. 1 in 4 women experiences violence by an intimate partner. June 2020, has seen a 130% increase in reported incidents of DV, compared with the same period last year.

domestic violence: occurs between married/de facto couples and/or their children. can include: social, economic, physical, sexual, psychological etc

legal: courts and dispute resolution methods

main law is the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which describes domestic violence as any act, whether physical or verbal, of a violent or abusive nature that takes place within a domestic relationship. this is a stand alone law, meaning the offender’s record shows this was a domestic violence related offence

‘It Stops Here - Safer Pathways’

2014 strategy implemented to address DV. aimed to improve responses from government and non-government responses, and communication. eg. police will now have to complete a ‘common risk identification tool’ online form whenever they respond to a domestic violence report, which then does to a ‘central referral point’ to decide what further action will be taken. evaluation found the program is helping deliver a consistent, effective and timely response to DV and communication

ADVOs

a court order that aims to protect a person by restricting or prohibitng another person from doing specified things. not a criminal charge, but breaking one is. maximum penalty is 2 years imprisonment and/or 50 penalty units (around $5,500)

granted in the Local Court under the Crimes (Domestic and Personal Violence) Act 2007. has three mandatory contitions (additional may be added)

not to assault, harrass or threated the protected person
not to intimidate the protected person
not to stalk the protected person

most ADVOs aren’t recorded as being breached. approximately 34,000 issued in 2020 (BOCSAR)

problems:

have been ineffective in the past as time to implement leaves victim vulnerable. since 2013, can be issued on the spot
police can also hold people for up to 2 hours to serve an on the spot ADVO
under state legislation, although this was fixed by the Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016

strangulation offence

in response to the NSW domestic violence death review team report 2015 to 2017 where it was found that “women are almost eight times more likely to be killed by an intimate partner if that person have previously strangled them”

previously DV strangulation was prosecuted as common assault, which has a maximum of 2 years imprisonment.

2018 amendment to section 37(1A) of the crimes act 1900 simplifies the offence and carries a maximum sentence of 5 years

dispute resolution methods

information: are compulsory after application for divorce - emphasise use of agreements and high cost of litigation
counselling: can be ordered by court at any point, compulsory under 2006 Shared Parental Responsibility amendment, private. Family relationship centres used for counselling and mediation
mediation: main ADR method, used to clarify issues, prepare agreements. no authority to impose a decision
less adversarial trials: introduced in 2006, applies to related matters coming before court. less formal proceedings eg. judge determines evidence, parties speak directly to judge
arbitration: court hearings used in complicated matters where primary dispute resolution has failed to reach an agreement. orders are made by the court
collaborative law: dispute resolution process where clients and lawayers negotiate outcome. growing movement in Australia. finalises with a legally binding parenting order

courts

family court established under FLA 1975, specialist family court for complex disputes such as abuse, DV, financial. jurisdiction over all family matter. 2009 amendment gave jurisdiction over non-married relationships
merged by federal circuit and family court of australia act 2021: includes two divisions. family court deal with most complex matters, circuit court single point of entry for all family law cases. FCC currently hear 90% all family law cases, 92% all parenting cases, approximate wait 2-3 years. merging will improve speed and resource efficiency
federal magistrates court: application for divorce and grants of divorce where there are no children or disputes over ancillary matters
state courts: children’s care issues and parental responsibility issues under the Children (Protection and Parental Responsibility) Act 1997 NSW. hearsall children’s criminal matters, adoption matters, surrogacy matters, domestic violence etc

non-legal

1800RESPECT

national domestic violence counselling service funded by the Australian Government’s Department for Social Services as part of the national plan to reduce violence against women and children 2010-2022 delivered by Medibank

24 hour confidential service providing information, helplines, support for victims of DV. provide texting, translators and professional counsellors (trauma training and minimum 2 years of experience). growing demand

Stop it at the Start Campaign

Council of Australian Governments (COAG) national primary prevention campaign that aims to contribute to a reduction in violence against women and children. includes advertisements and primary school workshops to promote respectful discussion and behaviour. concerns advertisements are calling women to be responsible for men’s actions

White Ribbon Australia

Non-government organisation to end violence against women, promote gender equality, create opportunities for men to build respectful relationships with women and each other. primary prevention approach in communities, schools, workplaces. raise funds for grassroots intiatives including in aboriginal communities. concerns about tokenism of white ribbon/men don’t deserve a medal for being kind. ultimately fundraising is effective, campaigns potentially less so

relationships australia

non-government organisation. community-based, not-for-profit Australian organisation with no religious affiliations. Have 100+ centres across Australia that provide FDR, counselling and mediation which ensures that separating parents are aware of their shared responsibilities. according to 2019 national research study of 200+ interviews and 1700+ clients found to be highly effective

NSW ombudsman

reviews causes and patterns of death in people with disabilities in care, deaths of certain children, preventable deaths. provide biennial report on children that die due to neglect and abuse. 2021 inquiry into care and protection of children found that 1/5 children who die are Indigenous, only 30% of these cases are investigated, system capacity is of significant concerns. effectively promotes and highlights inefficient service systems, pressuring government for change

media

role of media changing due to technologies. Family Law National Enquiry Centre: answers telephone and email enquiries about general court procedures and individual cases to provide referrals to legal advice and other services, and to provide forms and publications

educational advertisements

publicise individual stories and group protest, pressure to allow law reform eg. Grace Tame

Case:Rosie Batty (2014) Batty actively used media to shape the meaning around—and therefore public and political responses to—the broader social issues that led to her son's murder. She was able to influence political action and legislative reform and orchestrate a sustained and nationwide campaign to address family violence.