Chapter 12Option 3: Family

In this chapter, you will study the nature of family law. You will look at various responses to problems in family relationships and consider some contemporary issues in family law, including marriage and divorce, same-sex relationships, parental responsibility, birth technologies and the care and protection of children.

• The concept of family includes nuclear, extended, blended and single-parent families.

• The main function of the family is the care and protection of its members.

The nature of family law

As society has changed, so too has the structure of families. The many different family arrangements in Australian society include:• Aboriginal and Torres Strait Islander (ATSI) customary marriages• de facto relationships• same-sex relationships• single-parent families• blended families• extended families.

Family law has continued to change in order to extend protection to all members of these alternative family relationships.

The nature of family law

• Marriage is the “voluntary union for life of one man and one woman, to the exclusion of all others”.

• A valid marriage is between one man and one woman, who must be adults and not closely related.

Legal requirements of marriage

• A marriage may be declared void if the requirements are not met.

• For example, this might occur if consent was not freely given by one of the parties, or if one party was already married to someone else at the same time.

Legal requirements of marriage

• Marriage imposes legal rights and obligations on both husband and wife.

• These include matters relating to:– maintenance (financial payment made by one spouse)– property (the length of time the parties have been married and

the financial and non-financial contributions can alter property rights and ownership)

– wills.

Legal consequences of marriage

• Parents have legal and moral obligations to their children.

• Children have the right to the care and protection of their parents, and the right to education, medical treatment, and inheritance.

Responsibilities of parents and children

• The UN Convention on the Rights of the Child recognised the need for the universal protection of children’s rights.

• The convention has influenced family law within Australia.

Responsibilities of parents and children

• There is only one ground for divorce in Australia: the irretrievable breakdown of the marriage.

• The spouses must live separately and apart for 12 months before a divorce order will be granted.

Divorce

• In property settlements, courts will consider various factors, including financial and non-financial contributions, age, income, child care factors, and other specific characteristics of the parties.

• Binding financial agreements can be made before, during or after a marriage.

Divorce

• Domestic violence can include any act, whether verbal or physical, of a violent or abusive nature that takes place within a domestic relationship.

• Some of the legal responses to the issue of domestic violence include: – ADVOs– injunctions– criminal charges.

• Domestic violence is recognised as a community problem and most people now appreciate that reducing its incidence is in some respects a societal responsibility.

Domestic violence

• The law also aims to provide dispute resolution structures and processes that will help parties to reach an amicable termination of their relationship.

• The court focuses more on reconciliation and on encouraging compliance rather than enforcement through the use of sanctions.

• The Family Court, the Federal Magistrates’ Court and the state Children’s Court each have separate roles in resolving family law disputes.

Methods of resolving disputes

• A main focus of family law is the protection of children.

• Many of the amendments made to legislation centre on enforcing parental responsibility and ensuring that decisions concerning children are made in the best interests of the child.

Resolving disputes

Contemporary issues concerning family law

• State and federal laws have historically given, and continue to give, heterosexual couples rights and obligations from which same-sex couples are excluded.

• The Netherlands became the first country to recognise same-sex relationships in 2001; since then, many countries now recognise them, including Belgium, Spain, Canada, South Africa or Argentina.

Issue 1: Recognition of same-sex relationships

• In 2004, as the debate in Australia became politicised, the Australian Government amended the Marriage Act to specify that marriage could only be between a man and a woman.

Issue 1: Recognition of same-sex relationships

• Changes to the law have been slow and haphazard, but the law is gradually changing.

• Various Australian states and territories

have introduced legal reforms recognising same-sex relationships in specific areas, such as tax, social security, family law, superannuation, workers’ compensation, child support or adoption rights.

Issue 1: Same-sex relationships

• NGO ‘Australian Marriage Equality’ argues that specifically excluding same-sex couples from legally recognised marriage sends the message that these relationships are of a lesser standard and that the people are second-class citizens.

• There is wide public support for recognition of same-sex relationships in Australia; however, arguments against the recognition continue to influence the public and political spheres.

Issue 1: Same-sex relationships

“As a people committed to equal justice for all under the law, I have confidence that the Australian legal system, and those who make laws in Australia, will, in due course, eradicate unfair discrimination on the basis of sexuality. The scales are dropping rapidly from our eyes. Injustice and irrational prejudice cannot survive the scrutiny of just men and women.”

Former High Court Justice Michael Kirby

Issue 1: Same-sex relationships

• In the past, parents sought ‘custody and control’ over their children, enforcing their parental rights.

• Now the courts are less concerned with parental rights and more concerned with parental responsibility and legal obligations of parents toward children.

Issue 2: The changing nature of parental responsibility

• Reforms to family law in 2006 included two types of considerations to be taken into account by a court in respect of the best interests of the child: ‘primary’ and ‘additional’ considerations.

Issue 2: Parental responsibility

• Primary considerations include having a positive and meaningful relationship with both parents, and the need to protect the child from abuse and family violence.

• Additional considerations include the child’s wishes, the relationship between child and parent, financial ability of the parent, or the intellectual and emotional needs of the child.

Issue 2: Parental responsibility

• The emphasis on children’s rights reflects the idea that children are vulnerable members of our society and need greater protection.

• All decisions must be in the best interests of the child, and the interests of their parents or caregivers are secondary.

Issue 2: Parental responsibility

• Surrogacy and advances in birth technology have raised a number of new ethical and legal issues.

• Birth technologies include artificial insemination, IVF or gene technologies.

• Surrogacy involves an agreement between a couple and another woman, for the woman to bear a child for the couple.

Issue 3: Surrogacy and birth technologies

• Laws concerning surrogacy and many birth technologies in Australia are state- or territory-based and differ between these jurisdictions.

• The federal government has been slow to pass laws relating to surrogacy issues and the courts are constrained by existing legislation.

Issue 3: Birth technologies

• The Standing Committee on Law and Justice (of the NSW Parliament) was been asked to examine altruistic surrogacy arrangements in NSW, in order to:– clarify the legal rights and responsibilities of commissioning parents and

birth parents– clarify the rights of a child born through surrogacy – determine how to remove inconsistencies between existing state and

federal legislation. • In 2010, the NSW Government passed new surrogacy laws clarifying the rights

and status of parents and children in surrogacy arrangements.

Issue 3: Birth technologies

• Advances in birth technology have challenged long-standing moral and legal conceptions of ‘family’ and ‘parent’, and also created a great need for law reform.

• When considering the new laws in this area, both parliaments and the courts need to address a multitude of conflicting ethical views.

Issue 3: Birth technologies

• All states and territories, together with the Commonwealth government, have passed laws regarding family violence, child abuse and child neglect.

• The number of ‘at risk of harm’ reports made to Community Services has increased steadily and continues to grow – in 2006, 241 003 reports were made about concerns for a child’s or young person’s safety. In the following year, the number of reports increased by 19% to 286 022.

Issue 4: Care and protection of children

• The Family Law Act 1975 (Cth) defines ‘family violence’ as any action or threat of violence by one family member against another, including witnessing that action or threat, that causes fear or apprehension about personal safety.

Issue 4: Care and protection of children

• The legal system has been accused of acting too slowly to protect child victims of abuse, and that existing mechanisms to protect children are inadequate. An increasing number of persons under 18 have been placed on care and protection orders.

• The federal government has recognised child abuse and neglect as a major issue and is seeking to create a national framework for protecting children.

Issue 4: Care and protection of children

• Children are considered to be vulnerable members of our society and therefore deserving of greater levels of protection.

• The legal system has responded by strengthening legislation surrounding the care and protection of children – neglect and abuse of children are now considered serious crimes.

Issue 4: Care and protection of children