AT3 Legislation Flashcards
(21 cards)
Family Law Act 1975 (Cwlth)
- Section 70D of the Act ‘the court shall regard the welfare of the child as the paramount consideration’
- Crimes (Domestic and Personal Violence) Act 2007 NSW
- The Act’s primary objective is to ensure the safety and protection of all persons, including children, who experience or witness domestic violence. It explicitly recognizes the vulnerability of children exposed to domestic violence, whether as direct victims or witnesses
- The Act empowers courts to make Apprehended Domestic Violence Orders (ADVOs)
- ADVO is made to protect an adult victim, there is a rebuttable presumption that any children of the victim will also be protected by the same order
Crimes (Domestic and Personal Violence) Amendment Bill 2013
- when an Apprehended Domestic Violence Order (ADVO) is made for the protection of an adult, any children living with or in a domestic relationship with that adult are automatically included as protected persons on the order
Crimes Legislation Amendment (Domestic and Personal Violence) And Other Legislation Amendment Act 2024
- introduced Serious Domestic Abuse Prevention Orders (SDAPOs) to protect children
- SDAPOs empower courts to impose tailored conditions on high-risk domestic violence offenders
- used to restrict perpetrators’ contact with children and their caregivers
Case: Melissa Cook
After ending her marriage with her husband, Cook had taken out an Apprehensive Violence Order against him, however she was found murdered in her home, with her ex-husband being in possession of a gun despite having an order against him.
NSW BOCSAR - Domestic and Family Violence Community Prevalence Measures
- increase from 19 to 26 murders of women and children in relation to domestic and family violence from 2023 to 2024.
- 1 300 hospitalisations in 2023 in relation to domestic and family violence situations
- Don Weatherburn, director of BOCSAR states “AVO’s are not a magic wand”
Family Law Amendment Act 2023 (Cth)
- Abolished the presumption of equal shared parental responsibility, shifting focus to the safety and best interests of the child
- gives courts discretion to grant sole parental responsibility in cases of family violence
Goode v Goode [2006] FamCA 1346
- dispute between separated parents over the care arrangements for their two children.
- The father sought equal shared parental responsibility while the mother sought sole parental responsibility and for the children to live with her.
- trial judge applied the “status quo” principle, keeping the children with the mother, did not apply the presumption of equal shared parental responsibility due to allegations of family violence
Australian Law Reform Commission (ALRC) 2019 Report
- the presumption that separated parents have equal shared parental responsibility of their children was interpreted to mean a presumption of equal shared care arrangements.
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
The presumption of equal shared parental responsibility (ESPR) was often misinterpreted as a presumption of equal time
- Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
- the obligation to prioritize child safety was not always reflected in judicial decisions
the Adoption Act 2000 (NSW)
commercial Surrogacy is illegal
Re Mark (2003) FamCA
- involved a child born from a surrogacy arrangement in California. - The intended parents, a same-sex couple from Victoria, applied for parenting orders
- This case is known as the ‘best interests of the child’ gay surrogacy parenting precedent and promoted an increase in international commercial surrogacy arrangements
The Surrogacy Act 2010 (NSW)
- introduced in response to a government inquiry into ‘altruistic’ surrogacy. The Act prohibits commercial surrogacy arrangements + advertising for such services.
Article, “NSW Parentage Orders For International Surrogacy” by Sarah Jefford
- intended parents who have had a child via international surrogacy can apply for a NSW parentage order, allowing them to be legally recognized as the child’s parents in NSW
Family Law Act 1975 (Cwlth) + Dudley and Anor (2011) FamCA.
- inconsistencies in the Family Law Act 1975 (Cwlth) show that law reform has been ineffective in dealing with international surrogate cases, resulting inconsistent common law judgments such as Dudley and Anor [2011] FamCA .
Status of Children Act 1996 (NSW)
- a sperm donor is not considered a legal parent of a child conceived using his sperm unless he is the partner of the mother at the time of conception
Family law Act 1975 Cwth - section 60H
- if a child is born to a woman in a relationship with an ‘intended parent’ then that person is the parent, not the sperm donor
Masson v Parsons (2019) FLC (Family Court):
- At the time of the birth, the birth mother was happy for the sperm donor to be listed on the birth certificate.
- The birth mother later wanted to move to New Zealand with her wife whom she married
- The sperm donor wanted orders recognising him as the parent and filed for shared parental responsibility
- In Masson the sperm donor were granted parentage rights
Masson v Parsons (2019) HC (High Court)
- in an appeal Masson was deemed NOT to be a parent as state law and S.60H prevailed.
Masson v Parsons (2019) HCA 21
- High Court clarified that a sperm donor can be recognized as a legal parent under federal law if he is involved in the child’s life,
