HSC Legal Studies Family essay - 2019 HSC q. 27a PDF

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HSC Legal Studies Family essay - 2019 HSC q. 27a -- Uses Family Law development...

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2019 HSC – q27a: Evaluate the effectiveness of legal responses in achieving justice for parties involved in relationship breakdowns Through the implementation of the Family Law Act 1975 (Cth) and its following amendments in the Australian legal system, a dramatic transformation in achieving justice has been witnessed for legal responses involved in relationship breakdowns. This has been enabled through a range of law reform and significant changes to legislation in the legal system over time in accordance with changing societal values. Through the Family Law Act 1975 (Cth), the Family Court was established in an attempt to achieve justice as relationship breakdowns require greater sensitivity than the majority of legal issues. Through the enactment of the 2006 amendment to the Family Law Act 1975 (Cth), the incorporation of Family Dispute Resolution (FDR) saw greater justice for both parties involved in relationship breakdowns. Greater access has subsequently been established as these FDRs have been established across Australia. In addition, the Family Law Act 1975 (Cth) effectively achieves justice as property considerations for both parties involved were explicitly outlined and fairly distributed. Through these legal responses, justice has been achieved for parties involved in relationship breakdowns through the Australian legal system, though different effectiveness has been seen for different legal instruments. Through the enactment of the Family Law Act 1975 (Cth) and its following amendments, justice has been achieved in relationship breakdowns as the implementation of ‘no fault’ divorce was introduced, providing access to those who required a divorce but did not have the means for the previous 14 grounds needed for a divorce to be granted. Highlighting the effectiveness of this legal response is the spike in divorce in 1976, in which there were 63,000 divorces, the highest seen in Australia pre-introduction and postintroduction of the Act. Under the Family Law Act 1975 (Cth), justice has been achieved as court decisions regarding property distribution based on what is deemed 'fair in the circumstances’. Considerations will be made surrounding property, what contributions each couple made (both financial and non-financial), present and future needs of each party and the ability of each party to maintain a reasonable standard of living. To achieve justice for both parties, the court aims to be fair and to achieve an equitable outcome whilst taking into account differing needs and contributions made. In 2002, clearer ‘superannuation splitting laws’ were introduced into the FLA under the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth). This was implemented as a way to achieve justice as there was recognition of women not possessing the same access to superannuation savings upon retirement, owing to the time taken out of the workforce for children, ensuring a fair and equitable split in superannuation upon divorce. Justice is achieved within the legal system in the case of Hoffman and Hoffman (2014) in which property was split 50:50 despite the husband demanding 70:30 due to ‘special contributions’, revealing the effectiveness of property laws as a legal mechanism in achieving a just outcome for both parties during a relationship breakdown. The Family Court was established in 1975 with the introduction of the Family Law Act 1975 (Cth) has provided access to a specialised court, allowing justice to be achieved during relationship breakdowns to deal with the sensitivity of legal disputes within families and relationship breakdowns. It involves matters relating to separation, divorce, and other disputes related to marriage but is restricted to issues in the Family Law Act, hindering justice as it reduces the ability to access the legal system for a wider range of issues than exclusively the Family Law Act. The Family Court of Australia is viewed as generally ineffective due to several reasons. This can include high costs that may go upwards of $50,000, further limiting access to this part of the Australian law system. Further reducing justice, significant backlogs in having cases heard is evident as over 105 000 family law proceedings issued each year with 20,000 of those requiring judicial determination. Due to this high number of cases, cases may be delayed over a

year, rendering the Family Court ineffective as a time-consuming and costly measure of resolving relationship breakdowns and thus, achieving justice for parties involved. Insert merger here Enhancing justice is the Family Law Reform Act 1995 (Cth), which introduced Australia’s ratification of CROC. It aimed to shift towards the rights of children and parental responsibility rather than focusing on the notion of parental rights, enabling justice for children during the breakdown of a relationship. This 1995 Act included the language ‘best interests of the child’ as the decisive factor in decision-making about children during divorce. This encouraged cooperation between parents and highlighted society’s changing values surrounding the shifting outlook on priorities during a divorce. In addition, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) aimed to enhance justice during relationship breakdowns. Despite this, it is regarded as ineffective, controversial and confusing due to the introduction of new primary considerations that had damaging impacts on the ability to provide justice, including a presumption of equal shared parental responsibility and the consideration that must be given to equal time arrangements. This created confusion and misunderstanding surrounding the language of ‘consideration’ for equal time arrangements, as mediators advised women to agree to 50:50 arrangements (AIFS). Under the Family Law (Shared Parental Responsibility) Act 2006 (Cth), reforms were made to the Family Law Act 1975 surrounding the compulsory need for families to attempt to resolve disputes before accessing the court system. This process is called Family Dispute Resolution (FDR), defined as ‘a nonjudicial process in which an independent practitioner helps people affected by separation or divorce to resolve some of their disputes with each other’ in the Family Law Act 1975 (Cth). This can include reconciliation counselling, post-separation parenting programs and predominantly, mediation. This reform required couples who are disputing to make a genuine effort to come to an agreement before applying for a court order, as the court system can be time-consuming and costly. To integrate this process and thereby increase accessibility to the legal system, the government established 65 Family Relationship Centres to ensure access to the process. Whilst minimising conflict during relationship breakdowns, FDRs offer a less costly alternative than court proceedings in both time and money for both parties involved, as government subsidies may cover these overall lower costs. Increased justice is achieved as cooperation and compliance is more likely to occur within an agreement that both parties can negotiate. Overall, FDRs are primarily seen as an effective legal measure in assisting families to gain access to the legal system and effective in dispute resolution Overall, the implementation of the 1975 Family Law Act (Cth) and its following amendments in the Australian legal system has allowed for justice to be achieved within legal responses involved in relationship breakdowns. This has been enabled through a range of law reform and significant changes to legislation due to changing societal values. The Family Court was also established in an attempt to achieve justice as relationship breakdowns require greater sensitivity than the majority of legal issues. Furthermore, the incorporation of Family Dispute Resolution (FDR) saw greater justice for both parties involved in relationship breakdowns. In addition, the Family Law Act 1975 (Cth) effectively achieves justice as property considerations for both parties involved were explicitly outlined and fairly distributed. Through these legal responses, justice has been achieved for parties involved in relationship breakdowns through the Australian legal system....