Family Law Flashcards
(27 cards)
what is the concept of family law?
There can be no one definition for family as the term itself is constantly changing, yet it is agreed that families are the basic unit of society, and most children are raised within a family.
what are the legal requirements of marriage?
- Union of man and woman; same gender is not legally binding in AUS
- Voluntarily entered; not legally binding if forced or tricked into
- Arranged marriages may also be classified as voluntary as consenting parties organise marriage to be arranged however adults and minor is not accepted.
- For Life; intention of marriage rather than actuality
- To the exclusion of all others; two people only à AUS is monogamous society à adultery no longer grounds for divorce à evidence of social values changing
- Polygamy is not legal in Australia however other ‘wives’ considered de facto
Specification of man and woman; indicates that parties to marriage must be of different sexes
what are the alternative family relationships?
- Aboriginal and Torres Strait Islander Peoples’ Customary Law
- Single-Parent Families
- Blended Families
- Same-Sex Relationships
- Polygamous Relationships
- De Facto Relationships
Adoptive
what are the 5 legal responsibilites of a parent?
- Providing food and shelter
- Access to education: Education Act 1900 (NSW)
- Medical treatment
- Providing discipline: Must use reasonable force, and disallows striking the head or neck or a closed fist
- Protecting children from harm and exposure to illegal activities
- If a parent fails to provide these basic necessities, it may result in criminal prosecution. DoCS will investigate and remove parental responsibility, enforce parenting classes, or enforce orders.
what is adoption?
Adoption is the legal process of transferring parental rights and responsibilities from biological parents to adoptive parents. The aim of laws governing adoption is to ensure the best and most appropriate parents are found for the child, and to recreate the legal relationship between the child and parents. Laws are governed by the Adoption Act 2000.
what is divorce?
Divorce is the formal legal process of dissolving a marriage.
what are the legal consequences of seperation for children?
No application for divorce will be approved unless there are proper arrangements in place for children. Once arrangements for the child are in place, the court will order a decree nisi which begins the process of the divorce. After one month this becomes decree absolute where the marriage is legally dissolved. Parents both hold the responsibility for the child, regardless of who they are staying with, and are encouraged to make and agree to their own parenting arrangements. Separating parents are also required to attend family dispute resolution before they can apply for these parenting orders.
what are the legal consequences of seperation for property?
If a separating couple reach an agreement on the allocation of property and want to formalise it, they can apply to the family court or enter a financial agreement. If the decision made by the couple is fair and equitable, the court will make the consent orders legally binding.
dealing with domestic violence in australia
- Domestic violence can be defined as a pattern of behaviour in any relationship that is used to gain or maintain power and control over an intimate partner. Domestic violence can be physical, sexual, emotional, economic or psychological actions or threats and actions that influence another person
- An ADVO is a court order designed to protect the victim from future violence and intimidation by restricting the behaviour of the perpetrator. They are only applicable to domestic violence situations, yet their effectiveness is limited as they are hard to regulate due to the nature of the crime and violence occurring within the home.
ADVO à protect against behaviour from those in or have been in domestic relation and Apprehended Personal Violence Orders (APVO) à protected person and defended are not or have not been in personal relationship
- An ADVO is a court order designed to protect the victim from future violence and intimidation by restricting the behaviour of the perpetrator. They are only applicable to domestic violence situations, yet their effectiveness is limited as they are hard to regulate due to the nature of the crime and violence occurring within the home.
what are the 3 main courts that deal with dispute resolution
○ Family Court of Australia -
○ Federal Circuit Court of Australia
Children’s Court of NSW
what is the purpose of the family court of australia
○ Family Court of Australia - deals with complex family disputes such as divorce, abuse, family violence, mental health, and financial cases. Has appellate and original jurisdiction.
what is the purpose of the federal circuit court of australia
○ Federal Circuit Court of Australia - provides a simple and accessible alternative to litigation in courts to relieve the workload. It has the same jurisdiction as the Federal Court of Australia in relation to child support.
what is the purpose of the childrens court nsw
Children’s Court of NSW - deals with cases involving the care and protection of children, criminal cases where the defendants are under the age of 18, and applications for AVO’s for those under the age of 18.
outline the recognition of same-sex relationships
- Only recently achieved social acceptance, with homosexuality being illegal in NSW until 1984. As of December 2017, the Marriage Act 1961 (Cwlth) was amended to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 redefining marriage and legalising same sex marriage.
what are some legal responses to same sex marriage:
The law recognised relationships that exist outside the traditional concept of marriage. This was done through law reform as found in:
- De Facto Relationships Act 1984 (NSW): (renamed and amended to The Property (Relationships) Act 1984 (NSW)) recognises same-sex relationships as having the same legal standing as heterosexual de facto relationships, and provides the same protection.
- Adoption Amendment (Same-Sex Couples) Act 2010 (NSW): allowing same-sex couples to adopt.
- Marriage Amendment (Definition and Religious Freedom) Act 2017: revised the definition of marriage form a ‘union between a man and women’ to ‘a union between two people’. This altered the statutory definition of marriage and gave legal recognition to same sex marriage.
what are some non-legal responses to same-sex marriage
- The Australian Human Rights Commission: has made recommendations to the government in regards to the removal of institutionalised discrimination and legislation that does not comply with UN treaties and held a number of inquiries into areas of discrimination and human rights violations. They have promoted and lobbied for legal rights and social equality of homosexual couples.
- NSW Gay and Lesbian Rights Lobby: has a wide range agenda including advocacy, lobbying governments, and media to address discrimination, educating communities on LGBTQ rights, and provides referrals to legal and welfare services.
AHRC - Same Sex Same Entitlements Report 2008: encouraged the government to introduce reforms with the aim of removing discrimination against same-sex couples and their children in the area of financial and work related entitlements. This report determined the same sex couples should have the same rights as heterosexual couples.
- NSW Gay and Lesbian Rights Lobby: has a wide range agenda including advocacy, lobbying governments, and media to address discrimination, educating communities on LGBTQ rights, and provides referrals to legal and welfare services.
how has adoption changed in relation to same sex marriage
- Following changes to societal values, the Adoption Amendment (Same Sex Couples) Act 2010 (NSW) was introduced. As of 2018, same-sex adoption is legal in all of Australia’s states and territories, and we’ve seen a huge increase in LGBT parents, but this doesn’t mean the process in easy.
- Common challenges same-sex couples face in regards to adoption include:
- Discrimination
- Self-doubt from social stigmas
- Agency or parental preferences
Lack of support
outline surrogacy in relation to surrogacy and birth technologies
- Laws concerning surrogacy in Australia are state/territory based and differ between jurisdictions. The Surrogacy Act 2010 (NSW) was introduced in response to a government inquiry into ‘altruistic’ surrogacy. The Act prohibits commercial surrogacy arrangements + advertising for such services.
- Surrogacy Act 2010 (NSW):
○ Generally, the legal presumption about parentage is that a child born to a woman is considered to be the child of that woman (the birth woman) and her partner
○ The Surrogacy Act made it possible to transfer the parentage of the child from the birth parent to the prospective parents in the surrogacy contract
○ Prior to the commencement of the Surrogacy Act NSW in 2010, the only way to transfer parentage on a birth certificate was through adoption.
○ Commercial surrogacy remains illegal, even when carried out overseas (though enforcement/criminal follow up of overseas commercial surrogacy is a complex issue) - International Surrogacy:
The Department of Immigration and Border Protection approves applications under The Australian Citizenship Act 2007 (Cwlth) where the child was born overseas
- Surrogacy Act 2010 (NSW):
outline sperm donors in relation to surrogacy and birth technologies
- In sperm donor cases, the Family Court only rules on who is a parent (Parentage Order) if there is no State law (Adoption Order). Different State laws apply across Australia.
- The Status of Children Act (1996) NSW defines the legal father as the social father (the one who acts as a father). Under the Status of Children Act 1996 (NSW), a sperm donor is presumed not to be the father of any child conceived using his sperm unless he is the husband or de facto partner of the mother.
Further, the woman who gives birth to the child is the legal mother regardless of whether or not it is her egg.
- The Status of Children Act (1996) NSW defines the legal father as the social father (the one who acts as a father). Under the Status of Children Act 1996 (NSW), a sperm donor is presumed not to be the father of any child conceived using his sperm unless he is the husband or de facto partner of the mother.
what is the changing nature of parental responsibility?
- Parental responsibility has changed over the year.
- Influences of the Convention on the Rights of the Child, ratified by Australia in 1990
- Previously parents sought ‘custody and control’ over their children
- Terminology change – was ‘custody’ and ‘access’ then ‘residence’ and ‘contact’ the terminology is now ‘living with’ and ‘spending time with’
Now courts are more concerned with parental responsibility rather than parental rights
what are some legal responses to the changing nature of parental responsibility?
- Family Law Act 1975 (Cwlth)
- CROC 1989
- Family Law Amendment (Shared Responsibility) Act 2006 (Cwlth)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cwlth)
what are some non-legal responses to the changing nature of parental responsibility
- Community and church-based institutions, as well as nation-wide organisations such as:
- Women resource centres, the national council of women of Australia and parenting networks for mothers, fathers, or both may be of value in furthering this aim.
- Associations focusing on fathers in regards to their relationships with their children:
Family relationship centres
describe the care and protection of children
- Refers to the state’s responsibility to keep children safe, particularly from child abuse. Children are the most vulnerable members of society and consequently need the greatest protection by law - as recognised by CROC as well as other international instruments such as the protection convention and the Hague convention.
Family Amendment (Family Violence and Other Measures) Act 2011 (NSW):
This removed dis-incentives for families to report family violence, and put the safety of children first. Before the reform, if a family reported child abuse, and no abuse was found, you wouldn’t be able to fight for custody as easily. Yet, now, this is not the case. The child’s safety was prioritised over all else, including the relationship with their parents
