Flashcards in Family Law: Relationship Breakdown Essay Deck (32):
P1 How has a shift in changing social values from religious idealogies been reflected in relationship breakdown?
P1 Originally based on UK law and had 14 grounds for divorce, under the Matrimonial Causes Act 1959 (Cth). Proving fault caused further conflict between couples and often required a lawyer to prove, limiting some people's access to the law. Addressed in S.48 F.L.A just have to prove marriage irretrievably broken down by living separately and apart for one year. This empowers couple, reflecting the views of society and allows for more responsive result through different provisions.
P1 What are the provisions of S.48 of F.L.A?
P1 Kiss and Make Up clause (3months to reconcile w/o changing court date)2 year marriage requirement/mandatory counsellingSeparation under one roof provision (can be hard to prove:Fenech V Fenech 1976)
P1 What do the variety of options when commencing a divorce enable?
Reflects views of contemporary society, empowers couples and allows most responsive outcome to be achieved.
P2 For teh legal consequences of children, what is the process for divorcing couples and what does it centralise around?
P2 Focuses on 'best interests' of the child, which is in accordance with UN CROC (Aust. ratified).
Parents 1st must agree to parenting plan before being granted a divorce, using mediation if necessary and receiving a court order if they are unsuccessful so child's interests met.
P2 Are the legal mechanisms for the consequences of children succesful?
P2 Not as successful, but there have been many attempts to address this through reform.
P2 How is a more responsive outcome achieved when making parenting plans?
Using family dispute resolutions, as distributed by Relationships Australia, which provides conciliation, mediation conferencing and counselling, allowing for a more personal and meaningful outcome.
P2 What was the report that found there was a 32% reduction in court filings over a five year periods from using Family relationship centres?
2013 'getting it right for fams in Australia' by Joan Kelly. This reduced the use of lawyers and resluted in a 'significant reduction in costs to the Government for services'.
P2 What are the advantages of Family Resolution services?
P2 Cost effective (Joan Kelley , getting it right for families 2013) but parents could use for lower costs when they may need to attend court instead. Partners could be intimidated by another and this could affect best outcome being reached, discriminates due to economic status
P3 What was the amendment that encouraged shared parental responsibility?
P3 Family Law (Shared Parental Responsibility) Amendment Act 2006), not shared parental rights, another incorporation of UN CROC
P3 What was a criticism of the Family Law (Shared Parental Responsibility) Amendment Act 2006)?
P3 Justice Alistair Nicholson said the act was 'more or less an attempt... to pander to the strong pressure that's been put on the Government by various militant fathers' groups. (THE AGE 2005).
P3 What was Professor Chisolm's criticism of the Family Law (Shared Parental Responsibility) Amendment Act 2006)?
P3 2009 'Family Violence Review', 'friendly parent' provisions and imposition of other partner's legal costs if vexatious DV claims were made putting largely women and children at risk as discouraged from reporting.
P3 What did the 2016 UNSW report into the issue say?
P3 'making victims and perpetrators to make joint decisions' was largely ignorant of the complexity of the cases and could result in further victimisation.
P3 What did the 2016 UNSW report indicate?
P3 Encouragement of shared parental responsibility and ability to successfuly agree easily hindered in DV cases
P4 What does the Family Law Act say about property?
P5 considers each assets, financial and non finacial contributions, as well as current and future needs.
P4 What is initially encouraged when dividing property?
P5 negotiotiation and compulsory conciliation conference w Fam court, then approved by FCC.
P4 What are the amendments regarding property?
P5 1. in 2000 for superannuation recognised as property2. The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Division of property for defacto ( changing values!)3. Kennon v Kennon (1997) recognised DV on nonfinancial contributions (less accepting!)
P5 What shows the gov's initiative to having a more resource efficient system?
P5 2012: undergo mediation for a second time, as the emotional strain of the divorce could impair best decision from being made in the long run. Shows Gov's proactive repsonse, shows importance of trialling methods to achieve efficiency and effectiveness
what happens one month after a divorce order (decree nisi) occurs?
the decree nisi becomes absolute.
the family law endeavours to encourage cooperation to resolve conflict rather
than court rulings. The law is reluctant to intervene in some respects as they are dealing with private not public issues
Families that cooperate and resolve conflict generally
achieve lasting solutions than those with a court order
To help cooperation counselling has
become mandatory before entering the court for divorce.
P1. What was a non-legal measure that improved accessibility to the court
creation of an official youtube channel by the Family Court in 2014 to help individuals with procedures relating to family law. This is a successful non-legal measure as it helps to reduce confusion, enabling for a moretimely court process as errors are less likely to be made. This means a better outcome can be achieved more efficiently and there is reduced need for another earing.
P1. What court hears the majority of uncontested divorce applications and how is this effective?
The Federal Circuit Court
- lower costs and less time as FCC is a specialised divorce court.
-enabls Fam Court to deal with more complex cases thus contributing to resource efficiency.
What else contributed to accessibility?
Family Relationship Centres
Family Relationships Advice (free national telephone service for advice on fam issues/parenting arrangemnets)
----> accessibility for those in rural areas
Family Relationships Online ""
What hinders accessibility?
limited legal aid available and expense can mean couples may more likely to use mediation and FDR rather than attend Fam Court due to costs involved.
benefits of FDR
practical, faster, less stressful and inexpensive to sort out custody arrangements for children w/o going to court. This was encouraged by the FLA (SPR) 2006.
FDR are compulsory for
disputes relating to children, but exceptions for DV/child abuse.
FDR services of mediation, negotiation, arbitration counselling, conciliation) given by
Family Relationship Centres and other organisations.
What demonstrates that the government is showing intiative with regard to relationship breakdown?
2012 ran a trial which required separating couple to undergo a second mediation for cases that weren't resolved at compulsory conciliation in order to cut delays in court.
--->recognises that the process is emotional and stressful and this could impair best decision being made in long run
what does mediation provide?
high levels of compliance for mediated outcomes
What happens for non-compliance with mediated or judicially imposed orders for relationship breakdown>
It's hard to pursue breaches, as it is a costly process that must be done by the individual, not the family ocurt (limited legal aid) .
Could also be hard to prove, and