FAMILY LAW: STUDY NOTES

FAMILY LAW
What are the family structures how does their recognition
and protection vary under the law:Form
Marriage

De Facto

Definition
voluntary union
for life of one man
and one woman to
the exclusion of
all others
Act as a married
couple but are not
actually married

Same Sex
Couples

Use your
imagination.

Customary
Marriages

Traditional
marriages
between
Aboriginal/T.S
peoples

Polygamo
us

Having more than

one spouse

Single

Single parent

Jurisdiction
Under Federal
legislation

Legislation
Marriage Act
1961 (Cwlth)
Family Law Act

After two years

of cohabitation they
are recognised
under state
leg. Future
needs are not
considered
upon
dissolution.
For many
purposes
protected the
same as
heterosexual
defacto
couples.
Exceptions
include
adoption.
NSW leg.
Not
recognised.
Although upon
breakdown
protected by
state de facto
legislation

Property
(relationships)
Act 1984
(NSW)

The first
marriage is
recognised
under normal
fed. Leg.
Not specific

Property
(Relationships)
Legislation
Amendment
Act 1999
(NSW)

None the
Aust. Law
Reform
Commission
recommended
that for specific
purposes cust.
Marriages
should be
recognised.
Marriage Act
1961 (Cwlth)

Anti-

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FAMILY LAW: STUDY NOTES

parent

families 5:1 =
females to males

Blended
Families

Step family

issues such as
discrimination
based on
family status =
NSW
Kids = fed.
Their claim to
step-parents
estate = NSW

Discrimination
Act 1977
(NSW)
Family Law
Reform Act
1995 (Cwlth)
re. equal care
of kids/ step
kids

The law has a strict definition and requirements of valid

marriages:The definition is provided by Hyde V Hyde and Woodman (1866). It
is also in the Family Law Act and Marriage Act. The union of a man
and a woman to the exclusion of all others voluntarily entered into
for life.
A valid marriage must have fulfilled the following
requirements:
Marriageable age and parental consent
Prohibited degrees of relationship
Notice of marriage at least one months warning
This is done for several reasons.
1. To protect the sanctity of marriage to reflect societys values of
marriage.
2. The notice of marriage to ensure that it is not rushed
3. Marriageable age to ensure that the couple are old enough to
know what they are doing and thus dont end up divorced
4. To protect the members and the kids of the marriage (i.e. against
incest) and societys values
What are the legal rights and obligations between parents
and children:Child-care/control
The 1995 Family Law Reform Act 1995 (Cwlth) stipulates that both
parents are responsible for the short and long-term care of their
children, unless there is a court order to the contrary. It also
changed the terminology to reflect a change in mentality focusing
on parental responsibility rather than parental rights.
The law will only intervene when a child has been abused, neglected
or is uncontrollable. Child welfare authorities have the power to
remove a child from the home if they suspect improper care. The
Children and Young Persons (Care and Protection) Act 1998 (NSW)
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empowers the Childrens Court to remove the child. It also

broadened those legally required to report suspected abuse.
Children have a right to receive education
Children have a right to receive health care up to age 14.
Parents have a right to discipline their children it must
however be reasonable.
Inheritance: if a dependent child is excluded from a parents
will, the Family Provision Act 1982 (NSW) can insist in
adequate provision of the child from the sill.
International Obligations
Australia is a signatory to the United Nations Convention on the
Rights of the Child ratified it in 1990. The Family Law Reform Act
1995 was drafted with specific intention of including the convention
especially in the best interest of the child
Birth Technology
The Artificial Contraception Act 1984 (NSW)
Status of Children Act 1996 (NSW) covered paternity and the status
of children conceived artificially.
Ethics committees attached to IVF clinics address many of the
concerns as the law is largely slow to change and not
comprehensive. In 1988 the National Bioethics Consultative
Committee was established to inform state and federal government
about advancements.
Adoption
Adoption Act 2000 (NSW), focusing on adoption that is primarily a
service to the child. The NSW Law Reform Commission reviewed the
Adoption of Children Act 1965 (NSW) in 1997. It proposed reforms
such as open adoption.
Ex-nuptial children
The Children (Equality of Status) Act 1976 (NSW) gave ex-nuptial
children the same rights as other kiddies.
Problems in Family Relationships: Domestic Violence
Domestic Violence is 98% against women.
A 1991 study by the Domestic Violence Committee revealed that
one third of Australian responders stated that they believed that
domestic violence was a private matter.
Legal services available for victims such as the Domestic
Violence Advocacy Service
Legal actions to protect victims ADVOs, interim orders,
criminal assault charges
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To increase effectives since the Crimes Amendment (Apprehended

Violence) Act 1999 (NSW) police must record why they didnt initiate
criminal proceedings in relation to a reported breach of an ADVO.
Legislative Responses: Crimes (Domestic Violence)
Amendment Act 1982 (NSW) introduced ADVOs.
Ineffectiveness illustrated by deaths of Andrea Patrick in 1983, Jean
Lennon in 1996 and Irene Davis in 1997 despite their having ADVOs
against their killers.
Difficult to enforce.
To some extent there is still a cultural acceptance of domestic
violence.
Police have also been reluctant to get involved in domestic violence
situations.
Divorce
The Family Law Act 1975 established just the one ground for divorce
irretrievable breakdown. Upon the dissolution of marriage (and
the end of a de facto relationship) there are several aspects which
must be considered.
Division of Property
As evidenced in Hohol V Hohol, non-financial contributions are
considered in both marriage and de facto relationships
Residence of children and child maintenance
Parenting plans are established by the partners to establish who will
have residence of the children. It should be noted that it is the
responsibility of both parents to look after their children.
Spousal Maintenance
If one spouse cannot support themselves, and the other is able to,
then they will be required to pay a form of maintenance. In de facto
couples this varies and is uncommon. It exists on certain conditions
for a maximum of three years (for example if the spouse is caring
for an intellectually or physically disabled child of the relationship).
Parenting Plans
Parenting Plans are agreements between parents covering
arrangements regarding
who the kids will live with
who the kids will have contact with
maintenance arrangements
any other aspects or responsibility

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FAMILY LAW: STUDY NOTES

If the parents cannot work it out and submit it to the court, then a
parenting order will be imposed by the court. They can be requested
by the child and anyone concerned about the childs welfare.
The Family Court of Australia:The Family Court of Australia was introduced in 1975. It provides
counselling and adjudications. The jurisdiction of the Family Court is
limited by the Constitution and cross-vesting restrictions. It does not
hear matters concerning child welfare unless it is directly related to
the dissolution of marriage or de facto relationship.
How effective is family law in protecting the needs of the
individual:Equality: the limit of protection the individual receives under the
law is determinate on their family status. For example de facto
couples are not entitled to the same extent of protection as are
married couples. Aboriginal customary marriages do also not receive
the same degree of protection. The Family Law system has made
great gains in increasing gender equality, for example no the nonfinancial contributions are considered, although it can be noted that
(upon dissolution) the resulting single-parent family is more likely to
be towards the poverty line. This is often (although by no means
always) headed by the female partner. The no fault divorce also
assisted in making the family law more equitable as with regard to
gender.
Children are now recognised as being more vulnerable members of
the community, with the Family Law Reform Act 1995 (Cwlth).
Accessibility De facto couples are not entitled to Family Court
counselling services unless they have children. Thus their
accessibility to this dispute resolution mechanism is limited.
De facto couples with children must also face two jurisdictions. For
example if they have children and the matter concerns child
support, then that will be heard under federal jurisdiction. For the
matter of property settlement however, it must be heard under
state legislation. This affects the accessibility that individuals
receive, particularly in relation to time and money and is evidenced
in the media article Double Trouble for De Factos SMH 19/06/99.
Legal aid is available to assist in an individuals access to the family
law system
To reduce the time and cost of family court hearings, governments
have sought to include measures such as the use of primary dispute
resolution and the Federal magistrates scheme, contributing to the
95 % of family law cases settle out of court.

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Enforceability: ADVOs have come under criticism after the deaths

of Jean Lennon and others, and also due to police reluctance. This
has been improved under the Crimes Amendment Act (Apprehended
Violence) Act 1999 (NSW).
Likewise the area of child support has been difficult to enforce. The
Child Support (Assessment) Act 1989 (Cwlth) was introduced to
remedy the 40 % of claims for child maintenance that were not
being met. A child may also apply for a maintenance order under
the Family Law Reform Act 1995 (Cwlth). They can also take out
ADVOs.
If a parent defaults on the parenting plan, they can be charged with
contempt of the court.
In regard to child neglect/abuse, it is base on the standard of proof
that it is highly probable that the child is under threat. Court orders
can remove a child from the situation of compel the parent to
undergo parenting classes.
How effective is family law in protecting the needs of
society:Resource efficiency the movement to a focus of alternative
dispute resolutions was designed to achieve greater resource
efficiency and reduce time and delays. An example of such
legislation is the Family Law Reform Act 1995 (Cwlth).
The overlap of jurisdictions and the elimination of cross-vesting (the
Wakim case 1999) have resulted in a compromise of resource
efficiency. For example, a de facto couple with children must go
through both courts, with increased costs and time.
Standards reflected in Law the degree to which effective law
reform takes place can be seen to be a measure of how well the law
reflects social changes. Issues that confront community standards
include same sex marriages and birth technology; the law must
reflect the majority of the communitys values. It can be seen in the
areas that the law has changed that changing community values
marry with the legal system. An example can be seen the 1975 no
fault divorce legislation, and also legislation regarding domestic
violence.
Appeals and Review the parties have a right to appeal if they find
their needs are not being met.
Balancing individual rights with community rights
Domestic violence: A partner may believe it is their right to punish
their spouse, chid, (beyond reasonable force) however society does
not deem it as appropriate thus the rights of society are imposed
on the individual.

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Children: the welfare of children was previously held to be of less

importance than societys rights, however now the law acts with
the best interests of the child.
How does law change:Law reform takes place through the courts through new precedents
and through the parliament. The parliament is influenced by the
following bodies: NSW/Australian Law Reform Commission
Government Departments eg DOCS
Lobby Groups
HREOC
Royal Commissions
Why does law change:Changing social values and demographics
Eg. Recognition of other relationships, including same sex
relationships
Eg. dissolution of marriage now no fault
Eg. Greater protection of children
Eg. Domestic violence
Changing technology
E.g. Birth technology IVF, surrogacy
Failure of existing laws
E.g. The laws on adoption
To meet international requirements
E.g. the 1995 Family Law Reform Act to meet with the Rights
of the Child Convention

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