Essay plans - Grade: 12 PDF

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Essay plans for legal studies - crime, family and consumer
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FAMILY LAW - DOMESTIC VIOLENCE Can include physical, psychological, verbal, sexual assault, emotional and economic abuse. Law aims to protect victims of domestic violence through CRIMES ACT 1900 (NSW) or ADVO’s under the CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 NSW - Aus institute of health and welfare: affects 1 in 6 women APPREHENDED VIOLENCE ORDERS

Most traditional and commonly used legal measure in combating domestic violence. - Introduced as part of the CRIMES ACT 1900 (NSW) in 1982 and governed by the CRIMES (DOMESTIC AND PERSONAL VIOLENCE ACT) 2007 (NSW)  Victim can obtain an ADVO if he or she can prove on the balance of probabilities, that he or she has reasonable grounds to fear the defendant.  Law reform in 2014 provided police officers power to make applications for ADVO cases when an officer suspects that a domestic violence offence has been or is about to be committed. This largely increases the accessibility and resource efficiency of the ADVOs.

2016 NATIONAL DOMESTIC Introduced by the NSW government, made ADVOs automatically recognised and enforced across Aus and NZ. VIOLENCE ORDER SCHEME - Interstate response increases enforceability  CAN BE LIMITED

Whilst efficiency in obtaining an ADVO is high, figures reveal they are limited in deterring the defendants suggesting that they cannot truly meet society's needs.  ‘Domestic violence victim says NSW apprehended domestic violence orders are not working’ ABC 2019: O  ne in five ADVOs are breached in NSW

R V GAVIN JOHN DE BEVER (2017)

Represents ineffectiveness of ADVO’s, man brutally stabbed his fiance in dispute having numerous AVO’s taken out against him since 1999.

CRIMINAL CHARGE

Vital legal response through the judicial system in achieving justice for victims of domestic violence.  CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007, a range of DV offences, such as assault, stalking and intimidation.  2015 LAW REFORM ON DV EVIDENCE IN CHIEF: allows police to take a DV victim’s statement by video or audio recording largely reduces trauma and intimidation experienced by victim when giving evidence in court, somewhat achieves justices.

LYNETTE DALEY CASE

Ms daley experienced DV and was later murdered by her intimate partner in 2011, highlighting low responsiveness of the system. The case was not prosecuted by DPP and the victim's father expressed in a SMH 2016 article that ‘it was all little and too late’.

BOCSAR REPORT

New report by BOSCAR in 2016 suggests that 20.3% of people given a prison sentence had at least one new DV-related offence. - Lack of deterrence and slow responsiveness of system reduce effectiveness

‘UNCONVENTIONAL FAMILY Received $25 million in federal funds to help combat domestic violence. VIOLENCE PROGRAM WINS  FUNDING IN INDIGENOUS AUSTRALIAN INSTITUTE OF HEALTH AND WELFARE: - Indigenous women are most at-risk groups for family violence COMMUNITIES’ ABC 201 - 32 times more likely to be hospitalised due to DV BEST INTERESTS OF THE CHILD

Presumption in favour of equal shared parental responsibility has been rebutted by the fact of family violence.  CASE OF MOREIN AND MOREIN (2017) demonstrated this. - Children need to be protected from the risk of further psychological harm caused by the parents toxic relationship - best interest of the child

 1. CARE AND PROTECTION OF CHILDREN The law has been largely effective in responding to the care and protection of children. - Statute law remains as the main source of legal responses addressing the issue - ensuring behaviours that pose threats and dangers to children are deemed illegal - Law reform in 2008 and 2014 addressed ineffectiveness of past statute law UN CROC

Under this treaty which Aus is founding signatory to, the law is responsible to protect children whilst they are in the care of parents or legal guardians

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 (NSW)

Main piece of legislation that protects children from harm in NSW. Under section 27 abuse to a child is deemed an offence, and states that parents have a duty to be responsible for their children.  Several highly publicized child deaths in NSW in 2007, including a two year old body found in a suitcase and a 7 yr old girl found dead at home, suggests signs of ineffectiveness of the law to protect children.

WOOD INQUIRY

Child deaths in 2007 e.g. starvation of Ebony and Darcy Freeman sparked the WOOD INQUIRY in 2009 and subsequent

(2009)

government 5 year action plan, entitled KEEP THEM SAFE IN 2008 + Children and Young Persons (Wood Inquiry Recommendations) Act 2009 (cth) - Large extent improved child care and protection in NSW - Changed working from: ‘risk of harm’ to ‘risk of significant harm’  WOOD INQUIRY report found ‘too many reports are not being made to DoCS’ and the best interests of the child are not being fulfilled.  Children and Young Persons (Wood Inquiry Recommendations) Act 2009 (cth):amendments following wood inquiry and action plan, largely encourage and enhance cooperation between government departments in dealing with care and protection of children. - Act established Child Wellbeing units in most gov agencies that deal with children, such as NSW POLICE, NSW HEALTH, DEP OF ED → effective channel of communication between these units 

CHILD PROTECTION LEGISLATION AMENDMENT ACT 2013

Focused on supporting parents so that children can remain with their families wherever possible and safe to do so. The amendment expanded parental responsibility contracts to support expectant mothers. The contract entered by the child’s carers, containing provisions aimed at improving carer’s parenting skills and making them more responsible for child’s wellbeing.

GOV AGENCIES COMMUNITY SERVICES (DoCS)

Main function of CS is to investigate matters regarding children. If they see a child is in danger they has statutory power to remove the child from the family. - WOOD INQUIRY found it was ineffective as it was ‘swamped’ with non-urgent or unimportant allegations and matters, preventing it from dealing with serious cases   Introduced notion of ‘significant harm’ where community services will only intervene when the level of harm is sufficient to warrant a response by statutory authority irrespective of family’s consent = resource efficiency

2008 REFORM COURTS

If above legal measures cannot protect a child from abuse, courts can to a large extent can be seen as a last resort.  Children at risk of significant harm may be subject of a court hearing in the CHILDREN’S COURT. A breach of contract can also result in a CHILDREN’S COURT HEARING. - Court determines whether a child is ‘in need of care and protection’ - if the court can make a variety of orders, including

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removing a child from home and placed in care of someone else Also increases considerations of DV when deciding parental responsibility and property divisions

 2. CHANGING NATURE OF PARENTAL RESPONSIBILITY The law has been somewhat effective in responding to the changing nature of parental responsibility. Concept is defined in FAMILY LAW ACT 1975 ‘all duties, powers, responsibilities and authority which by law, parents have in relation to children’. - Conflicts regarding parental responsibility often arise when parents separate - Law today focuses on maintaining positive and supportive family structures of parents can fulfil their obligation to their children CHANGE FROM PARENTAL RIGHTS TO PARENTAL RESPONSIBILITY

19th and 20th century, the custody of children was seen as a right rather than a responsibility to children.  FAMILY LAW ACT 1975: emphasises parental rights rather than parental responsibility.  The turning point is when UN adopted CROC in 1989: - Article 9 stated that a child has the right to maintain personal relations with both parents except if it is contrary to the child’s best interest  FAMILY LAW REFORM ACT 1995: introduced a strong emphasis on parental responsibility rather than parental rights to see or have custody of the child. The terms custody, guardianship and access were replaced with residence, parental responsibility and contact. - This emphasised that parents do not have rights to a child, but have responsibility for the child  EFFECTIVENESS: intention of reform was to ensure best interests of the child is guaranteed and reduced conflict between parents in relationship breakdowns.

FAMILY LAW Introduced presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility AMENDMENT (SHARED except if there is proven abuse or violence. RESPONSIBILITY) ACT - Child’s best interests are paramount when deciding on arrangements 2006 DARCY FREEMAN (2009)

Divorced father threw daughter off the west gate bridge

FAMILY LAW ACT AMENDMENT 2012

Placed greater focus on domestic violence when the court is considering parental responsibility. - Change of legislation prioritise safety of children in parenting matters by giving greater weight to the protection from harm when determining what is in a child’s best interest - Ensures best interest of the child remains paramount

 3. SURROGACY AND BIRTHING TECHNOLOGY Aim of family law is to protect family members and achieve the most just outcome for issues. However, advancements in birth technology, raising new and complex concerns as well as practice issues require law reform. Thus far, law has attempted to implement changes that control the measure of the issue in order to adequately protect family members. However this is to a limited extent, as reform does not occur fast enough or effectively enough to deal with new issues that arise from birth and surrogacy. SURROGACY ACT 2010 (NSW)

A major law reform to adjust altruistic surrogacy and sufficiently protect family members involved. - According to past Attorney General Greg Hatzistergos primary aim of reform was to ‘advance the best interests of the children’ i n keeping with Aus’ obligations under CROC. - Under the law SC had power to transfer legal parentage of the child from birth mother to intended parents - This expedites process of altruistic surrogacy as intended parents no longer have to legally adopt the child  The law + has provisions to ensure all family members, especially the child, are protected. - Before undergoing surrogacy, both parents and surrogate must have approval of state gov, and must undergo legal and psychological counselling, and medical police checks - Best interests of the child must also be represented before a arrangement is to commence, and all surrogacies are to be placed on a central registrar

R V EVELYN (1998)

Demonstrates courts may choose to overrule surrogacy contracts if they believe that they are contrary to the best interests of the child. But also diminishes the confidence of commissioning parents to the system.

 ighlights the ethical and moral concerns that arise from altruistic surrogacy. ETHICAL AND MORAL ‘When altruistic surrogacy goes wrong’ SMH 2014: h CONCERNS - Complexities, and potential for relationship of parties involved to deteriorate when they disagree on certain issues including financial ones ‘Surrogate mum reveals the financial struggle behind the euphoria of handing over a baby’ ABC 2019 -

Highlights the fact the law is still inadequate in fully protecting all family members and preventing such conflicts from arising

  BEST INTERESTS OF THE CHILD

Raised concerns over the best interest of the child, and prompted reevaluation on the nature & definition of family. One of the main problems is determine the legal parents of the child  Under STATUS OF CHILDREN ACT 1996 (NSW): the social father, who is the man who acts as the father of the child, is the legal father. The woman who bears the child is the legal mother. - This means that transferring the legal parentage is an inevitable step in surrogacy arrangement  HOWEVER: RE PARTICK (2002) AND RE MARK (2003) highlights the existence of a surrogacy agreement is not necessarily relevant in determining parentage when there is a dispute in parental responsibility. - Cases suggest ‘best interests of the child’ test is the major consideration in determining parentage 

OVERSEAS AND DOMESTIC: COMMERCIAL SURROGACY

Law intended to ban NSW parents from participating in commercial surrogacy arrangements domestically and overseas which was extremely ineffective & fails to protect. - Under the SURROGACY ACT commercial surrogacy is prohibited bothin in NSW & overseas = with a fine of over $100,000 and 2 years imprisonment. However, no couple has been prosecuted for commercial surrogacy & estimated 500 Australian couples participate in overseas surrogacy each year

SURROGACY More than 50 Australian couples participated in commercial surrogacy in India each year. - SMH 2015 ‘AUSTRALIA'S OUTDATED SURROGACY LAWS FORCE COUPLES TO TAKE RISKS OVERSEAS  AUSTRALIA & SMH ARTICLE DISPLAY INEFFECTIVENESS OF LAW 

Overseas commercial surrogacy especially in third world countries largely endanger the rights of the surrogates and the best interests and care of the child. - In 2015, two cases revealed by ABC involving Australian parents intending to abandon their surrogate children in india and thailand highlight the limited laws in countries that regulate commercial surrogacy = extremely vulnerable 

BABY GAMMY CASE & INDIAN BOY 2012

Demonstrates many of moral and ethical concerns of overseas commercial surrogacy. Additionally discovered that the intended father was a registered sex offender, which results in a parenting situations contrary to the best interests of the child. 

‘Fresh surrogacy concerns over a boy abandoned in India’ SMH 2015: i ndian boy left with birth mother after parents decided to only take the twin sibling = highlights failure of Australian surrogacy laws in protecting the children born in arrangements BIRTHING TECHNOLOGY

ASSISTED REPRODUCTIVE TECHNOLOGY ACT 2007 (NSW): all women are granted equal access, core standards and provisions are outlined. - The best interests of the child are considered paramount in ART births = demonstrated in SNELL & BADLEY 2011 CASE: child of a separated lesbian couple concieved by IVF was given time with both mothers. HOWEVER: laws surrounding issue are not able to fully and adequately protect family members due to complex nature and extremely high cost, it is of limited access to many women  Medicare only covers women who are medically infertile and not those in same-sex relationships or single.

 4. SAME-SEX RELATIONSHIP Constant law reform in past decades has led to a large extent of justice achieved for those in same-sex relationships. According to 2016 Australia Bureau of Statistics there were around 46,800 same-sex cuples living together. T  he law has gradually developed to safeguard these couples rights and protect them from discrimination. Today law seeks to achieve equality b/w hetereosexual and homosexual couples and it is not dipute that equality has been achieved in many aspects such as adoption and de-facto relos. DISCRIMINATION

Law largely protects same-sex couples from discrimination and thus somewhat achieves just outcomes. 1st legislation that prohibited discrimination on grounds of homosexuality was introduced in 1982 in amendment of the ANTI-DISCRIMINATION ACT 1977 (NSW). - Act largely protected same-sex couples from facing discrimination at workplace, general community and other aspects of life  HOPE & BROWN V NIB (1994) = court ruled that same-sex should be recognised for family health insurance R V MCKEWEN (1996) = court allowed defence ‘battered women syndrome’ to be used in same-sex relo - demonstrated changing community values leading to equality

SAME-SEX Removed over 100 discriminatory provisions about same-sex couples in various pieces of commonwealth legislation including, RELATIONSHIP (EQUAL taxation, medicare, superannuation and social security. TREATMENT IN - Law reform has maintained and continued to protect same-sex from discrimination COMMONWEALTH

LAWS) ACT 2008  DE FACTO RELATIONSHIPS

To protect an individual’s rights when a same-sex relationship breaks down the law recognises same-sex coup

 CONSUMER LAW 1. CREDIT Credit is the purchase of goods and services in advance of future payment. Many consumers obtain goods and services via a credit card or loans, risking exploitation by unscrupulous lenders. This results in the trouble of meeting repayments and property is repossessed. - Purchase of goods or services in advance of future payment, has in recent years become an increasingly visible feature of aus economy - In response there have been many measures taken by legal system in an effort to uphold consumer rights ISSUES WITH CREDIT

1. 2. 3. 4.

Unfair contract terms Credit providers w inadequate procedures for handling complaints Time delays in handling of complaints by credit providers So many steps involved in process of seeking legal redress that only most sophisticated consumers persevere

LEGAL RESPONSES: AUSTRALIAN CONSUMER LAW

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Amendments were made to the AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSIONS ACT 2001 & NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 → scheduled the NCC after a meeting which determined to transfer consumer credit regulation powers to the commonwealth - Ensured consumer protection for financial services are consistent with general protections Legal measures have been significantly effective in addressing rapid rise of credit, providing legal consistency to all Aus consumers by harmonising state and territory credit laws under Commonwealth Jurisdiction.

ASIC V CASH STORE (2014)

Fed court awarded record penalties of $18.9 million for failure to comply with consumer lending laws = effectiveness of law

ASIC V NIMBLE (2016)

ASIC identified sig deficiencies in NIMBLE’S compliance with responsible lending laws when providing loans of short duration to consumers. - Failed to consistency recognise where consumers had obtained repeat loans from payday lenders within a short period of time  REPAY $1.6 MILLION TO CONSUMERS = recognises effectiveness of consumer law

NATIONAL CONSUMER

Effective measure in responding to growing issues of credit, ensuring credit liabilities and obligations are transparent to all

CREDIT PROTECTION ACT 2009 (CTH)

parties, mainly through mandating the use of written contracts between consumers and lenders.  ACL Worldwide stated ‘Australia had fewer fraud experiences than international neighbours’ - Non compliance with the act means a max charge of $500,000 and or criminal charges   Changing values.

CASH CONVERTERS (2017)

Fined $1.4 million and required to provide compensation of $10.8 million to customers for putting them in inappropriate loans.  Changing values and ethical standards of NCC.

ASIC V EASY CHOICE HOME LOANS (2012)

Failed to obtain a license, yet still continued trading. The federal court fined them $200,000. This was the first successful case under the new law = ASIC ACT 2001 (CTH)

NATIONAL CREDIT CODE

Provides laws which apply equally to all forms of consumer lending to all credit providers, and are all uniform in jurisdictions. - Failure to comply can lead to civil p...