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HSC Legal Studies > Family Law > Flashcards

Family Law Flashcards

1
Q

FAMILIES WITH CHILDREN

A
  • A family is the fundamental unit that makes up society. Its main responsibility is to care and protect its members.
  • Family Law Act 1975 emphasises reconciliation and wants to encourage families to solve issues themselves and to improve the situation.
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2
Q

Married Couples

A
  • Marriage is the legal union of a men and a women which is a federal power under the Constitution
  • The Marriage Act 1961 (Cth)
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3
Q

De Facto Couples

A
  • A newly recognized relationship. They are couples who have lives together for more than two years but are not married. They could have children together and own their own homes etc.
  • Family Law Amendment (De Facto Financial matters and other Measures) Act 2008 (Cth)
  • Same-sex couples are treated the same as De Facto.
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4
Q

Defined under the Marriage Act 1961 (Cth) the marriage should involve

A
  • Voluntariness
  • Be over the age of 18
  • Heterosexual
  • Can’t already be married
  • Can’t be related
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5
Q

Protection during and after marriage

MAINTENANCE

A
  • Refers to financial contributions made by one spouse to another to contribute to the welfare of the spouse or children
  • Family Law Act; Spouses are required to provide maintenance until the other becomes financially independent.
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6
Q

Protection during and after marriage

PROPERTY RIGHTS

A
  • Refers to the distribution of the value of a couple’s home if one spouse dies or separates.
  • In the case of death; the reaming spouse automatically inherits their share of the property.
  • In the case of separation; the length of the marriage and contributions to the marriage determines how much of the house they get
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7
Q

Protection during and after marriage

CONTRACTS AND DEBTS

A
  • One spouse is not responsible for the debts or contracts entered into by the other spouse. Individuals act alone when entering into contracts.
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8
Q

Protection during and after
marriage
WILLS

A
  • Is a document stating how a person wants to have their assets distributed after their death
  • If they don’t have a will; Their assets automatically go to their spouse and children
  • If the couple has separated and it’s not updates; the section of the will which favours the ex-spouse will be removed to go to the family and children.
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9
Q

Alternative Family Relationships

Aboriginal and Torres Strait Islander Marriages

A
  • Occasionally, in remote regions of Australia, marriages are performed under traditional laws and customs, which are not considered legal and are treated as De Facto couples as a result.
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10
Q

Alternative Family Relationships

Single Parent Families

A
  • Since the altering of divorce laws in the 1970’s, divorce rates have increased, alongside the increased financial independence of women. This has resulted in the increase of single parent households in recent decades
  • Under the Child Support Scheme 1988, single parents are entitled to child maintenance to be paid by the partner who is not living with the child.
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11
Q

Alternative Family Relationships

Blended Families

A

Where two families merge into a single family, when parents remarry. This resulting in step-parents, step- brothers etc.

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12
Q

Alternative Family Relationships

Same-Sex Couples

A
  • Changing values in recent years has resulted in increased recognition of same-sex couples as a legitimate form of family.
  • They are viewed as De Facto couples under the Family Law Amendment 2008
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13
Q

Alternative Family Relationships

Polygamous Couples

A
  • Where an individual has multiple husbands or wives.

- Not common within westernised societies, but more so in third world countries or those with less strict marriage laws.

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14
Q

Alternative Family Relationships

De Facto Couples

A
  • Couples who live together but are unmarried and can could have children together.
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15
Q

Adpotion - Domestic

A

Adoption Act 2000 (NSW) outlines that

1) The biological parents must receive counselling
2) Both birth parents must give consent to the adoption
3) If the child is over the age of 12, they must consent to the adoption
4) The child must be at least 30 days old
5) Parents must be over the age of 21 to adopt
- As of 2010, same-sex couples are allowed to adopt

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16
Q

Adoption - Overseas

A
  • Australians must apply to adopt from overseas, and are only able to adopt from countries that are signatory to the 1993 Hague Convention
  • Adoption Act 2000 (NSW) states;
    Hague Convention on the Protection of Children and co-operation is respected of inter-country adoption
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17
Q

Legal rights and obligations of parents and children

Parental Rights

A
  • Historically, parents rights over their children have been prioritized over the best interest of the children. However, this has changed dramatically in recent years to give power to the children.
  • This meaning that the child must have access to an education, safety, food and shelter.
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18
Q

Legal rights and obligations of parents and children

Legislation

A
  • The Convention on the Rights of the Child 1990 (CROC), this is integrated into the Family Law Act 1975
  • Under Article 3 it states the best interest of the child. The law must priorities the child’s best interest at all times.
  • CROC has also been integrated into the; Young Offenders Act 1987 (NSW) and Children’s Court Act 1987 (NSW)
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19
Q

Legal rights and obligations of parents and children

Shared Parental Responsibility

A
  • Parents have not rights to living with their child. Instead, children have the right to a meaningful family relationship, which in most instances includes contact with both parents.
  • Family Law Act reforms have allowed for the best interest of the child to be priorities in custody and parenting plans.
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20
Q

Legal rights and obligations of parents and children

Shelter

A
  • When a child lives with their parents, they have a right to shelter and their parents have a legal obligation to provide it for them. Failure to do so is neglect.
  • If neglect is discovered, the Department of Community Services (DOCS) investigate the allegations and have the authority to even take the child way
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21
Q

Legal rights and obligations of parents and children

Education

A
  • All children have the right to a full education and all parents are obligated to provide this for them
  • Education Act 1990 (NSW)
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22
Q

Legal rights and obligations of parents and children

Discipline

A
  • Parents have the right to disciple their children, however it must be reasonable and consider their age, health and misdemeanour.
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23
Q

Legal rights and obligations of parents and children

Medical treatment

A
  • Children have a right to medical treatment when sick and parents are obligated to ensure their children receive treatment
  • Under the age of 14, parents must consent to medical treatments
  • Over the age of 14, children must consent themselves
24
Q

Legal rights and obligations of parents and children

Autonomy

A
  • Children have some rights to autonomy, however their autonomy is limited by laws restricting drinking before 18 or sex before 16
  • The close the child is to reaching 18, the more rights and freedoms they unlock.
25
Q

Legal rights and obligations of parents and children

Ex-Nuptial Children

A
  • Children born outside of marriage have historically been left unconsidered. However, in recent decades the law has recognized the rights of these children.
  • Grating them the rights to inheritance and child maintenance
  • This want until the Status of Children Act 1996 (NSW) that allowed these children the same right as those born to married parents.
26
Q

Divorces

A

Divorces have become increasingly commonplace in recent years as a result of the role of reform
Regulated under section 48 of the FLA 1975
- New reforms have reflected changing values
- They have become more acceptable to gain a divorce, especially for women

27
Q

Stages of a Divorce

A
  • Applying; filing for a divorce at the Family Law Courts. However to gain final divorce, they need to meet certain requirements such as
    a) Living separately and apart- in order to see if you can both sustain your life apart from each other
    b) Counselling- If married for less than 2 years they must attend mandatory counselling
  • Orders; an interim order gives the couple a 1 month gap if they change their mind. The final order means the marriage is no longer recognized.
28
Q

Legal consequences of separation

Characteristics

A
  • Psychological difficulties; Emotional nature of a relationship breakup can affect decision making. Support mechanisms are in place such as Family Relationship Centers and organizations that aim to help single parents.
  • Financial difficulties; It costs around $100,000 each for 2 weeks in court. Cheaper if couples decide to settle outside of the courts.
29
Q

Legal consequences of separation

Property

A
  • The combined assets of a couple, including house, content of the house, superannuation, join bank accounts etc.
  • Courts take into consideration age, income, contributions to the marriage etc.
  • Recent division issues include the financial contributions made by the breadwinner vs. the non-financial contributions of the mother (looking after the children, etc.)
30
Q

Legal consequences of separation

Children

A
  • Under the FLA 1975, the court ensures custody disputes have been resolved before they will grant a divorce
  • Parenting Plans; are the most common form of custody arrangements setting out the most practical and equitable arrangements for time spent with the children.
31
Q

Domestic Violence outline

A
  • DV is an any act, either verbal or physical, that is of a violent or abusive nature, and takes place in a domestic relationship
  • It can also be financial, emotions or sexual abuse
  • 26,000 cases in 2012
  • 70% of victims are girls/women
  • ¾ of women murdered in NSW are killed by a domestic partner
32
Q

DV- Battered Wife Syndrome

A
  • This is a partial defense that can be used in situations where a wife kills her abusive husband
  • Recent reforms have made it a legitimate defence and can be used as a mitigating factor
33
Q

DV - Potential causes of family problems

A
  • Social; drug dependency, family arguments, lack of quality time spent with family and geographical location can influence DV
  • Psychological; lack of self-esteem, inability to express anger, desire to control others, growing up in a home experiencing DV and mental illness can triggered someone to be the perpetrator of DV
  • Financial; lack of money, dispute over how the money is spent, expectation of children earing money can all lead to DV
  • Aboriginal women are 6x more likely to experience DV then other women in society.
34
Q

DV- Violence involving children

A
  • Children are viewed as vulnerable and as such there are more protections in place to protect children from experiencing violence
  • Under the Convention on the Rights of the Child 1990 and Children and Young Persons (Care and Protection) Act 1988 it is illegal for children to be subject to violence
35
Q

DV - Legal responses

A
  • ADVO= Apprehended Domestic Violence Order
    • This can be obtained through the local court and works similar to a restring order
  • Injunctions = they work similar to ADVO’s but work on a broader scale.
  • Criminal Charges can be used as a last resort, however it is not as common due to the close personal relation to the offender
36
Q

DV- NGO

A
  • 2009-2012 National Plan to Reduce Violence Against Women and Children
    • This includes education programs, raising awareness of the issue and building respectful relationships
  • Women’s Refuge Resource Centers, which provide access to information and women’s refuges
  • White Ribbon Day raises money and spreads awareness for the issue
37
Q

Local Courts role

A
  • The local court deals with cases overlapping with crime and grants Apprehended Domestic Violence Orders (ADVOs)
  • According to the NSW Bureau of Crime Statistics and Research (BOCSAR) ADVO’s are 95% effective
38
Q

Children’s Court role

A
  • The Children’s court deals with Young Offenders and the care and protection of children
  • Has informal and closed courts
  • Works closely with legal aid
39
Q

State Courts role

A
  • The state court are involved in regulating the separation of couples
  • They grant divorces and make orders regarding property and children in separation
40
Q

Family Courts role

A
  • The primary court regulating family law under the Family Law Act 1975 (Cth)
  • This including divorce, property disputes, custody, wills etc.
  • They hear anything under the act and attempt to make a comprised for both parties. That is why they often offer dispute resolution as the first option.
41
Q

Federal Circuit Courts role

A
  • Established by the Federal Circuit Court of Australia Act 1999 in order to relieve pressure on the Family Court
  • They deal with most divorce cases
42
Q

Dispute resolution methods

A
  • Methods put in place by the law to achieve amicable dispute resolution and ensure resource inefficiency by resolving issues before they get to court
  • Family Relationship Centers
    The provide support and preside over dispute resolution. They do this by;
    a) Mediation
    b) Parenting Programs = trying to keep a good relation on both sides
    c) Reconciliation Counselling
43
Q

NGOs

A

-Relationship Services Australia:
An Australian organisation involved in regulating separations, divorce and parenting. Provides mentoring and support for parents

-Global Network for Women’s Shelter:
An international organisation providing support for women and children experiencing domestic violence

-Women’s Legal Service:
An Australian organisation providing free legal advice to disadvantaged women
It is more accessible for women from less advantaged areas

44
Q

Department of Family and Community Services (DOCS)

A
  • DOCs is in place to monitor the treatment of children
  • They will go into the home of the child and give advice and support to the family and as a last resort they will take the child away.

They try to avoid putting kids into foster care because 81% of girls and 57% of boys in juvenile detention have been abused/neglected according to the Sydney Morning Herald

45
Q

CPC - Family Law Act 1975 (Cth)

A
  • The FLA 1975 imposes a positive obligation on parental responsibility
46
Q

CPC- Child Care and Protection Act NSW

A
  • DOCs can remove the child when their safety is put in danger
47
Q

CPC- Children’s Court

A
  • Responsible for making orders for DOCs to deal with families
  • Emergency Care and Protection Orders are given to DOCs to allow them to intervene
  • They can also issue a Parental Responsibility Contract, which monitors the family and attempts to improve parental care.
48
Q

CPC- Mandatory reporting

A
  • Professionals that work with children are legally required to report instances of suspected abuse (e.g.- bruising or repeated broken bones)
49
Q

CPC- Dean Shillingsworth

A
  • A 2 year old was killed by his mother. He was mistreated and neglected when it was later suffocated to death by his mother 2007. She attempted to hide the body and lie about the events and his whereabouts to DOCs.
50
Q

CPC- Shelly Ward

A
  • Her parents could not cope with her conditions, mentally, finically and physically.
  • They locked her in her room and starved her
  • Teachers and neighbors raised concern because she was rarely seen outside of the house or at school.
  • DOCs visited the house but did not see Shelly and despite this, they decided not to investigate further
  • At age 7, she was found starved to death in her room by DOCs
51
Q

CPC- Wood Inquiry

A
  • Children Legislation Amendment (Wood Inquiry Recommendation) Act 2009 (NSW)
  • Both the Dean and Shelley cases resulted in DOCs being called but did not save the child.
  • This lead to the development of the Wood Inquiry being developed, which reviewed DOCs and how it protected children.
  • They found that child protection mechanisms where inadequate and the law was responding too slowly to help victims
52
Q

CPC- Keep Them Safe Campaign

A
  • The Wood Inquiry lead to this campaign
  • It increased funding to family violence NGOs and attempted to improved communications between government departments
  • it shows the laws as responsive to issues and gaps within the system, however, child deaths have not decreased since the amendment and campaigns.
53
Q

CPC- Kiesha Abrahams

A
  • As a baby, DOCs removed her when it was reported her mother had bitten her. Her mother, coming from intergenerational abuse and suffering drug addictions.
  • However, after the mother entered support and rehabilitation, she was given back to her.
  • In 2013, the mother hit her daughter, causing her to hid her dead and die. She did not take her to hospital or contact anyone, instead, left her to find her in the morning dead.
  • She buried her in a shallow grave in bushland and went to police to report her missing, and hiding the truth about what happened.
  • When the body was found, server evidence of abuse was evident.
54
Q

CPC- Legislation

A
  • Family Law Amendment (Family Violence and other Measures) Act 2011 (NSW).
  • Magellan Program; fast tracked cases if violence was reported
  • National Framework for Protecting Children 2009-2020; tries to treat the underlying social factors causing the abuse (poverty, drugs etc.)
55
Q

CPC- NGOs

A

Australian Childhood Foundation

  • A foundation aiming to aid children who have been exposed to family violence.
  • By providing trauma recovery programs that aim to break the intergenerational cycle of violence.

Braveheart Foundation

  • NGO which focuses on sexual abuse
  • Educates the next generation about the abuse and how it is wrong through the socialization process of children, in order to allow for the knowledge to become continuities within their lives.
  • In 2016, they reached around 126,000 children by delivering personal safety education programs.

HSC Legal Studies (4 decks)

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