Family Law Legal Studies Assessment Task PDF

Preview

Summary

This is an assement for students who are doing Family Law as their elective for Legal Studies HSC. ...

Description

The legal system is put in place largely to protect individuals. However in domestic violence cases it is believed that the law is not effective in protecting individuals, particularly women and children. Domestic violence is defined as actual or threatened violence or harassment between married or de facto partners. The enforcement of domestic violence laws is set out in the Crimes Act 1900 (NSW) and is achieved through Apprehended Violence Orders, criminal assault charges and injunctions, though it is difficult for these to be effective as only 5% of cases are reported. ADVOs are orders imposed restricting the behaviour of an individual for a period of time. They were introduced as part of the Crimes Act in 1983 and are flexible, allowing courts to order the restraint of certain activities. If an ADVO is breached the offender may be ordered to pay a fine or be imprisoned. In custody cases, ADVOs are often abused, with each individual taking one out against the other. Many people see ADVOs as ineffective as they are generally seen as a ‘piece of paper’ and it can be difficult to prove a breach has occurred. Criminal charges are divided into two parts-assault and stalking and intimidation. Assault is easier to prove if physical evidence is present, while stalking and intimidation was included in the Crimes Act to prevent offenders instilling fear on individuals. When domestic violence is reported, these punishments can be effective, however when cases are not reported, offenders cannot be punished. Court injunctions can order the prevention of an act or order an act to occur. Under the Family Law Act 1975 an injunction is similar to an ADVO, but is harder to enforce and is only available to married couples, as seen in the Marriage of O’Dea. Similar terms can be used for de facto couples under the Property (Relationships) Act 1984. Recent figures from the Australia Bureau of Statistics indicate that 50% of marriages end in divorce. Therefore the legal system must have certain laws and procedures in place to ensure justice is achieved for all family members upon the event of a divorce. The Family Law Act 1975 (Cth) introduced the concept of a ‘no fault’ divorce based on the ‘irretrievable breakdown of marriage’ as seen in the case of Whiteoak vs Whiteoak. Under the Family Law Reform Act 1995 (Cth) further reforms were introduced to make the system equal and to protect individual’s rights including the ‘kiss and make up’ clause, living separately and apart, and more emphasis on compulsory counseling and mediation. With the rising divorce rate, there have been increasing demands on the Family Court. To alleviate the backlog imposed on the Family Court the Federal Magistrates Court was initiated in 1999 and began in 2000. This is a quick and cost affective way to resolve less complex family matters. It allows lower socio-economic groups to access the legal system and therefore promotes accessibility and equality within the legal system. The ‘shopfront’ approach to justice seen in the article “Joint custody trial to calm break-up fury” (SMH 27/4/04) will see new methods for the dissolution of marriage. This service will be cheaper but couples will still have to pay a fee. This service is less formal the Family Court or the Federal Magistrates Court and therefore further promotes equality and accessibility.

The Family Law Amendment Act 1999 (Cth) introduced a parental compliance regime that attempts to make parents more responsible for their children. This Act also made prenuptial agreements legally binding documents meaning individuals’ property and rights are better protected by the law upon the event of a divorce. Property allocation is a major part of divorce proceedings. This is based on financial and non-financial contributions to the marriage. The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) made superannuation part of the marital assets, promoting equality for both parties as they have equal access to all assets of a financial nature accumulated during the marriage. Custody arrangements can cause further disputes between couples. Australian Bureau of Statistics shows that less than 3% of fathers are awarded residency of their children after a divorce. This has caused lobby groups such as DADS (Dads against discrimination) to pressure the government to take into account their individual rights. While certain amendments to the law have been put in place, inequalities still exists, particularly in the case of custody disputes. For the law to be effective, it must remove these inequalities. The law strives to protect the rights of all individuals, but particularly children. Childrens’ rights are protected by the Young Persons (Care and Protection) Act NSW 1998 and the Family Law Reform Act 1995 (Cth). A grey area of the law has arisen dealing with whether an unborn child has the same rights as other individuals. This is seen in the cases of Lynch vs Lynch and Byron’s Law. The Human Embryo Research Act 2003 (NSW) raised moral and ethical issues in relation to the rights of unborn children. The emphasis has shifted from ‘the rights of the parents’ to ‘the best interests of the child’ under the Family Law Reform Act 1995 (Cth) as seen in the case of U vs U. This Act also incorporated principles of CROC into domestic legislation which aims to protect the rights on the child. It also included a change in terminology from ‘residency’ to ‘parenting time’ to make the system seem more family-friendly and to emphasise the interests of the child. The Status of Children Act 1996 (NSW) introduced the concept of ex-nuptial children having the same rights as nuptial children. This Act promotes equality and the protection of the rights of all children. The Adoption Act 2000 (Cth) was implemented in 2002 and set out guidelines and procedures for the adoption process. It excluded same-sex couples from adopting but protected children of blended families. The Adoption Information Act 1990 (NSW) was made retrospective and allows children and relinquishing parents access to contact information. Contact vetoes were also included however the effectiveness of these is yet to be seen. Maintenance of children is covered by the Family Provisions Act 1982 (Cth) and ensures all children are cared for upon the death of a parent. The Child Support Legislation (Assessment) Act 1989 (Cth) initiated a program that aims to care for the children of separated or divorced parents. This ensures the child’s rights are protected and they have equal access to financial resources. However changes to the program are being considered to make the system more equal and therefore more effective.

The institution of marriage has changed over recent years. The case of Kevin and Jennifer questioned the traditional definition of marriage and challenged society’s values and morals. Many alternatives to marriage exist including same sex relationships and de facto relationships. De facto relationships are recognised by law as a domestic relationship under the Property (Relationships) Act 1984 (NSW) which was amended from the De Facto Relationships Act 1984 (NSW) however the relationship must meet certain factors to be declared a valid relationship as seen in the case of Davis vs Sparks 1990. The new Act also recognizes the existence of same sex relationships and gives both legislative protection in areas such as property, intestate and death of a partner. This Act promotes equality and strives to protect the rights of individuals involved in these relationships. Legislation dealing with de facto relationships is based on state law. A lack of uniformity has meant that “jurisdictional shopping” can occur from state to state. Cohabitation and Separation agreements ensure that the rights of the individual are protected. These contracts allow couples to decide the division of property upon the end of a relationship. While the law has attempted to achieve equality for individuals, there still remain injustices. The Adoption Act 2000 (Cth) states that same sex couples cannot adopt a child, however one partner may adopt as a single parent. The Guardianship Act (NSW) 1987 ensured that same sex couples could apply for guardianship of their partner in the event that one partner became incapacitated. It can be seen that while the legal system has attempted to eradicate injustices for domestic relationships, some inequalities still exist in achieving justice for family members. While some individuals see artificial reproductive technology as immoral, the law must form equal and fair pieces of legislation that protect the rights of all parties involved. Technology has become available to conceive a child through artificial means. This however has brought about “genetic bewilderment” claims by children. The Status of Children Act 1996 (NSW) was brought in to ensure that children conceived by artificial means have equal status as other children. The Family Law Act 1975 (Cth) after its amendments also helped achieve equal status for children, ensuring the protection of children’s’ rights. In NSW sperm banks are anonymous, however in Tasmania the law has been changed to allow children to access donor sperm details. This has potential to fuel many child maintenance disputes in the future. ‘Lisa’s Law’ 2003 stopped the exportation of embyos overseas, however this was challenged and amended to allow this under certain circumstances such as reloction. Under the Adoption At 2000 (Cth) commercial surrogacy is deemed illegal. That is there can be no exchange of finances in the event of surrogacy, though it has been recommended that surrogacy be legalised in some circumstances. Custody rights are a clouded area of surrogacy law, as seen in the case of Baby Evelyn 1998. The legal parents of the child are said to be the male who adopts the father role, and the female who bears the child. The lack of standardisation of laws across Australian states in the area of surrogacy has meant ‘jurisdictional shopping’ has emerged as a result of constitutional

restrictions. This impacts the effectiveness of the law as it then becomes unequal to individuals. The changes to and introduction of legislation strives to achieve equal justice for children and to protect the rights of all children....