The Nature of Family Law

The Australian Bureau of Statistics (ABS) defines a family as two or more persons who are related by blood, marriage (registered or de facto), adoption, step or fostering and who are usually resident in the same household. The family unit is the fundamental unit of society. Family types include: Nuclear family: normally a husband, a wife and their children (46% of children in households 2006) Couples without children (38%) De facto couples, with or without children (15%) Blended families, married or de facto couples with children from previous relationships Extended family: a family with other relatives besides parents and children living in the same household Single-parent families: one parent raising children (16%) Same-sex couples, with or without children Aboriginal and Torres Straight Islander people in customary law marriages. The legal definition of marriage is: A union of a man and a women Voluntarily entered into For life, this is the intention, but not the actual state of a marriage To the exclusion of all others. This definition was given in the common law in the case of Hyde V Hyde and Woodmansee (1866) LR 1 P&D 130 (UK) and is contained in the marriage Act (Commonwealth). The Marriage Act 1961 (Commonwealth) also provides that: To marry, a person must be eighteen years old. A person cannot marry his or her brother, sister, ancestor or descendant. There must be a valid marriage ceremony with two witnesses and a legal celebrant. There must be one months notice of intention to marry given by the parties. A marriage will be declared void or invalid if: One of the parties is already married. The parties are related to each other in a prohibited degree. One party did not really consent to the marriage, that is he or she was forced into the marriage (duress), tricked into the marriage (fraud), or otherwise did not voluntarily enter into the marriage. One of the parties is not of marriageable age. Alternative family relationships recognized by the law Aboriginal and Torres Straight Islander marriages are marriages that occur when two adult persons are married according to Aboriginal and Torres Straight Islander customary law. They are in a bona fide domestic relationship but are not legally married. The law recognizes such marriages as de facto relationships. A de facto relationships occurs when two adult persons live together as married couple, through they are not legally married. They are in a bona fide domestic relationship and are recognized by the law.

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Polygamous marriages are those where a person has more that one spouse at any one time. In Australia, polygamous marriages are valid only if the person had more that one legal spouse before coming to Australia. As well, there are other family relationships, such as single-parent families, blended families and same-sex relationships. The law of NSW recognizes de facto relationships under the Property (Relationships) Act 1984 (NSW), which amended the De facto Relationships Act 1984 in 1999. Since 1999 same-sex relationships, as well as heterosexual relationships, have been protected under the Act. The relationship must be two years long to be considered a de facto relationship under the law. The main difference is the breakdown of de facto relationships and marriages is that future needs of the parties are not considered in division of property with de facto relationships. The care of any children of the de facto relationship is decided by the Family Court, in the same way as in the breakdown of a marriage. Parents and children have legal rights and obligations. Many rights of the child are contained in the UN Convention on the rights of the child, 1989 (CROC) and are also contained in Australian law. Rights of the child include: The right to a name and nationality The right to not be abused The right to be free from discrimination and to be treated equally The right to be adequately maintained The right to an education between the ages of six and fifteen. Until a child is fourteen years old, parents must seek medical treatment for their child when necessary. Parents have the right to choose their childs religion. Parents have a responsibility to control their child and are responsible to a certain degree for their childs behavior. Adoption is governed by state law under the Adoption Act 2000 (NSW). Adopted children are treated by the law as if they have been the natural children of their adoptive parents and have the same legal rights and status as a child born into a marriage. People over 21, either as a couple or as a single person, can adopt children. Amendments to the Act in September 2012 mean that a same-sex couple can also adopt a child. Under the Adoption Information Act 1900 (NSW) it is possible for adopted people over eighteen and their biological parents to contact and meet each other. If either side does not want to be contacted, they can lodge a contact veto with the Department of Community Services and this makes contact with them illegal.

Responses to Problems in Family Relationships

Divorce is governed by the Family Law Act 1975 (Commonwealth). There is one ground for divorce and this is to prove that there has been an irretrievable breakdown of a marriage. This means that the marriage has broken down to such an extent that there is no chance of the parties getting back together. To prove this, the couple must live separately and apart for a period of 12 months. The basic characteristic that shapes current divorce law is the no-fault concept, that is neither party is to blame for the breakdown of the marriage. The concept of fault was partially returned with the Family Law Reform Act (1995) (Commonwealth), which takes into account family violence in decisions about property and children. When the court has decided that an application for divorce is successful, it grants a divorce order. This is an interim order and it means that the couple is divorced but that neither party may remarry until the order is made final one month later. The legal consequences of separation for children are as follows. The law concerning the care of children was changed under the Family Law Reform Act 1995 (Commonwealth) and further by the Family La Amendment (Shared Parental Responsibility) Act 2006 (Commonwealth). All cases concerning the care and

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welfare of children are decided by the Family Court, whether the parents are married or not. Under this Act, the parents both have the responsibility for the care and welfare of their children. Parenting plans are agreements made by parents about their children when a marriage is dissolved. The Family Court can make parenting orders for parents who cannot agree on the care of their children. These orders specify whom the children will live with, whom the child will spend time with and whom the child will communicate with. All decisions regarding children are made with the best interests of the child as the paramount consideration, children are of paramount importance. When deciding on the best interests of the child the Family Court takes into account: The wishes of the child, if they are in the childs best interest. The benefit to the child of having a meaningful relationship with both parents. The need to protect the child from abuse. The effect of changing the living conditions of the child. Any family violence that has affected the child or family. The family violence criterion was first introduced in the Family Reform Act 1995. It recognizes that violence in the family, even if not directed at the child, can badly affect the child and thus it is taken into account. This has been criticized as re-introducing fault into the dissolution of marriage. Since 2006 there has been a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. Both parents have duty to maintain their children until they reach the age of eighteen, or longer if they are still studying. Child maintenance is money paid by one parent (the liable parent) for the upkeep of children cared for by the other parent. The Child Support Scheme was introduced in 1988 to make avoiding paying child maintenance more difficult. Child maintenance is collected by the Child Support Agency, part of the Australian Taxation Office (ATO). It decides how much maintenance is paid by apply a formula. The amount is deducted from the wage of the liable parent and given to the other parent. The ATO can also obtain child support from tax deductions, and the seizure of assets. The Child Support Legislation Amendment Act 1998 (Commonwealth) has tried to address some of the criticisms of the Child Support Scheme. Parents can make private arrangements about the amount of child maintenance to be paid and ho it is collected. The property of a marriage is all the property owned by both parties. This can include houses, cars, bank accounts, shares and superannuation. The Family Law Act 1975 (Commonwealth) determines how the property is to be split if a married couple separates, while amendments to the Family Law Act in 2008 mean that these provisions also apply to separating de facto couples, both heterosexual and homosexual. Most property settlements are made by agreements between the parties. If the division of property comes before the court, it will consider the following factors: The financial contributions of each party. The non-financial contributions of each party, including housework, cooking and looking after children. The future needs and obligations of each party. Whether the proposed distribution is just and equitable. Pre-nuptial agreements are legally binding. Domestic violence is actual or threatened violence and harassment between married or de facto spouses who live in the same household or who have lived together. It includes verbal and psychological abuse. It is the most common form of assault in Australia and 98% of victims are women. The manifestation-of-male-supremacy theory says that because men are raised to be aggressive and dominating, they use violence when they are angry. The cycle of violence is a theory that domestic violence is more likely when it is witnesses in childhood as the violence is repeated when the child is an adult. The structural theory says that external pressures, such as poverty, unemployment, alcoholism and cultural displacement, cause domestic violence.

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Please note that these are just theories, some may be more accurate then others. The most common legal response to domestic violence is an apprehended violence order (AVO) or an apprehended domestic violence order (ADVO). This is an order imposed by the local court that restricts the behavior of the defendant for a period of time (Crimes Act 1900 (NSW). The main features of AVOs are as follows: They can be obtained on a balance of probabilities. They can be obtained by a victim is he or she can prove that he or she has reasonable grounds to fear personal violence, intimidation or stalking by the defendant. Anyone over sixteen can obtain an AVO and whole families can be protected under one order. They are very flexible and specific to each case. Defendants can be arrested immediately if they break the conditions of the AVO. Maximum penalties are a fine of $5500 or two years jail. They remain in force for six months unless otherwise specified. There are also responses to domestic violence other than AVO. Under the Crimes Act, two types of criminal charges can be made against someone committing domestic violence. These are assault, and stalking and intimidation. Criminal charges are harder to prove than the requirements for an AVO, as the standard of proof is beyond reasonable doubt. An injunction can be given by the Family Court and similar provisions for de facto spouses can be made by the NSW Supreme or District Courts. Injunctions are court orders that order someone to do something or stop him or her from doing something. Provisions for an injunction are similar to those for an AVO. Injunctions are not frequently used as it is easier to obtain an AVO. When the Family Court is considering a parenting order for a child, it must consider whether there has been family violence or a family violence order made about any member of the family. The Family Court of Australia, was set up under the Family Law Act 1975 (Commonwealth), to hear divorce cases. In 200 the Federal Magistrates Act 1999 (Commonwealth). Couples wanting a divorce have access to both these courts, which together are known as the Family Law Courts. There are two sections of the family court. Counselling and mediation is one section of the court, provided to help people sort out their differences and to make their own decisions regarding issues such as property division and care of children. Over 90 percent of dissolutions are settled at this stage, Under the Family Law Reform Act 1995 (Commonwealth), mediation is given a higher importance and is te rmed primary dispute resolution. Adjudicators and judges make up the other section of the court, for parties who cannot come to an agreement. The court is open to the public, but the names of the parties cannot be published. Both Family Law Courts provide for dispute resolution in the form of counseling, mediation and conciliation to help people sort out their differences and arrive at their own agreements over issues. Advantages of dispute resolution mechanisms it is cheaper and quicker Often a solution reached this way is best for all parties concerned because they have agreed to it. Disadvantages of dispute resolution mechanisms fair and successful mediation depends on equal bargaining power between the parties. People may dispute resolution mechanisms even when it is inappropriate, because it is cheaper. Dispute resolution mechanisms could be denied t some spouses because of false accusations of family violence. Dispute resolution mechanisms could mean the parties rights are not safeguarded as they wo uld be in a court hearing. Many non-government organisations, such a Family relationship Centres, provide advice and assistance to families experiencing problems. Various lobby groups play an important part in publishing for law reform in the area of family law. Some of these groups are: NSW Gay and Lesbian Rights Lobby Church groups Parent groups, such as Dads in Distress and Lone Fathers.

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The media has a very powerful role in bringing issues to public attention and pressuring parliaments. If the media publishes the views of particular lobby groups, or persistently criticizes a government for its policies, reforms to the law frequently will follow.

Contemporary Issues Concerning Family Law

People in same-sex relationships have only recently been given any legal recognition under the law. Until the 1980s homosexual sexual activity was a criminal offence. Same-sex couples now have the following entitlements by law. They can adopt children under NSW law. Commonwealth law treats same-sex couples the same as married and heterosexual de facto couples in financial matters. NSW law now treats female same-sex parents who conceive a child through artificial means in the same way as opposite-sex parents. Also, discrimination against someone because he or she has a same-sex partner is specifically illegal. The relationships Register Act 2010 (NSW) means that same-sex couples can register their relationship with the NSW registry of Births, Deaths and Marriages, providing legal proof of it. Marriage is the one remaining area of family law that same-sex couples in Australia cannot access. Parental responsibility is defined in the Family Law Act 1975 (Commonwealth) as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. The Child Support Scheme means that many more liable parents are discharging their obligations to support their children financially. Under the Family Law Amendment (Shared Responsibility) Act 2006 (Commonwealth): Children have a right to have a relationship with both parents, but parents do not have the rights to see their children. Each parent is separately responsible for the child. It is in the best interest of the child that each parent has equal shared parental responsibility, which means that parents must consult each other about long-term decisions affecting the child. The presumption in court orders is that it is in the best interests of the child for the parents to have equal shared parental responsibility except in cases of child abuse or family violence. The Status of Children Act (NSW) and the Assisted Reproductive technology Act 2007 (NSW) contain much of the law that operates in NSW about birth technologies. The legal mother of a child conceived via artificial reproduction technology (ART) is the women who bears the child. The legal father is the man who acts as the father ( not the donor). The Miscellaneous Acts Amendment (Same-sex Relationships) Act 2008 means that female same-sex partners who conceive a child through artificial fertilization are both named on the birth certificate as co-mothers and will have equal status as parents. This relationship is not recognized under the Family Law Act 1975. The morality of ART has become an increasing concern with the scientific discoveries of cloning and post-menopausal pregnancy. The cost of ART is very high but can be claimed on Medicare by couples or single women who are medically infertile. Should lesbians and single women have the right to ART? In NSW, all women have access to IVF regardless of marital status. Should doctors be able to experiment on spare embryos? Surrogacy is when a women decides to become pregnant and bear a child on behalf of another couple who cannot have a child. When the child is born it is given to the couple for adoption. Under the Assisted Reproductive technology Act 2007 (NSW) it is illegal to bear children for money. There is no law that prevents surrogacy where no money is involved. An ex-nuptial child is one born outside a marriage. That is, the parents of the child are not married and were not married when the child was born or conceived. In the past, ex-nuptial children could not inherit property or claim inheritance from their

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father. However, ex-nuptial children are now given the same rights as all other children. The Status of Children Act 1996 (NSW) ensures equal rights for ex-nuptial children. The law provides for the care and protection of children. Under the Children and Young Persons (Care and Protection) Act 1998 (NSW). It is an offence to abuse a child. The protection of the child is of paramount concern. Schoolteachers and councilors must notify the Department of Human Services, Community Services, (formerly Department of Community Services, or DOCS) if they think a child is being abused. A police officer or Community Services worker can remove a child from his or her home for the childs protection. A court may remove a child from his or her home if the child is deemed to be in need of care. The Childrens Court makes the final decision as to whether a child should be placed in care. The standard of foster homes and state institutions must be properly maintained.

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