Family Law Themes and Challenges

Family law themes and challenges
The role of the Paragraph 1: Divorce

law in  New processes of determining criteria for divorce
encouraging  Change from the Matrimonial causes act 1959 (cth), only allowed
cooperation and divorce if there was fault in marriage  adultery, cruelty, insanity
resolving conflict desertion
in regard to  Change to family law act which removed needs for a fault in the
family
marriage and the only ground is a ‘irretrievable breakdown of
marriage’
 Changes now focuses on alternative dispute resolution
 If couple have been married for less than 2 years, they must attend
family counselling before they can divorce
 s50 of the Act – the ‘kiss and make up clause’ allows parties to
reconcile for a period of up to 3 months without having to restart the
12 months separation period. This shows the court’s role in ensuring
reconciliation and takes into account the best interests of the child.
 In approximately 95% of separation cases, families are able to avoid
resolutions by the Family court which shows that the alternative
methods are working in making families avoid court.
 Mandatory dispute resolution before divorce Section 60 of the
Family law Act (1975)
o Reforms in the Family law act for divorce was designed to
encourage parties to see an amicable resolution.
o S50 of the act- the ‘kiss and make up clause’ allows parties to
reconcile for a period of up to 3 months without having to
restart the 12-month separation period.  this shows the
court’s role in ensuring reconciliation and takes into account
the best interests of the child.
o If a couple has been married for less than 2 years, they must
attend family counselling before they can divorce.
o In approximately 95% of separation cases, families are able to
avoid resolutions by the Family court which shows that the
alternative methods are working on making families avoid
court.
Paragraph 2: Legal consequences of separation (children)
 The Family Law Amendment (shared responsibility) Act 2006 (cwlth)
o Focusing on the child’s best interest with equal share times
o The presumption is that it is in the best interests of the child
to have shared and equal responsibility regardless of where
the child resides.
o This helps to maintain relationship with both parents and
protects the child from harm
o In reality, the intentions of the reform are not met due to
alcohol or geographical constraints. For example, in more
than 60% of parenting plans and orders children spent more
than half their time with the mother. The main reason why
less than 30% of the time was spent with the father was due
to family violence.
o More than 4 out of 5 children have primary residence with
their mother
Paragraph 3: Adoption (Contact veto)

 Adoption Amendment Act 2008 (NSW)
o Parents and children who do not want to be contracted by
the other can lodge a contact veto, meaning that their
information will be released once the party seeking the
information has signed an undertaking not to make contact.
o A breach of this can lead to fined and/or imprisonment.
o The contact details of the child and birth parents can be
placed on the Advance Notice Register which notifies them if
any application for information is made.
Paragraph 4: Legal consequences of separation (financial agreement)
 Family Law Act 1975 (NSW)
 The law allows couples to create a financial agreement- a written
statement between two parties that sets out how the parties would
like to divide their financial resources
o This is effective as this law aims to encourage cooperation for
dividing property
 Thorne V Kennedy
o The high court disregarded a prenuptial agreement between
a wealthy Australian property developer and his wife.
o This shows how the law is not working as it is not being
abided by, overall destroying the credibility of the financial
agreements.
o Shows the lack of enforceability of the courts in adhering to
financial agreements
o Shows how property arrangements are failing to meet the
needs of family members.
Issues of Paragraph 1: Domestic violence- ADVO
compliance and  The Crimes (domestic and personal violence) Act 2007 (NSW)
non-compliance  An ADVO is a court order designed to protect the victim from future
violence and intimidation by restricting the behaviour of the
perpetrator.
 “Husband charged with 100 domestic violence offences” (Smh,2005)
o Man, allegedly contravened an AVO 19 times, stalked or
intimidated her 26, destroyed their property, carried out
verbal harassment and physically assaulted her dozens of
times over 18 years.
o Highlights how ADVOs are not being complied with
 John Edwards case
o In July 2018, john Edwards 68, shot and killed his two
teenage children at West Pennant Hills before committing
suicide.
Paragraph 2: Decriminalisation of same sex relationships

 Australia’s law criminalising same sex relationships violated Article 17
of the ICCPR- right to privacy  Australia was not complying with
international law
 Toonen V Australia
o In 1991, a homosexual man from Tasmania, sent a
communication to the Human Rights Committee.
o At that time homosexual sex was criminalized in Tas.
o Toonen argues that this violated his right to privacy under
Article 17 of the ICCPR.
o He also argued that because the law discriminated against
homosexuals on the basis of their sexuality, it violated Article
26.
o In response to the Human Rights commissions view, the
Commonwealth government passed a law overring
Tasmania’s criminalization of homosexual sex.
o Effective: Australia then complied with the ICCPR
Paragraph 3: Financial agreements

 Family Law Act 1975 (NSW)
 The law allows couples to create a financial agreement- a written
statement between two parties that sets out how the parties would
like to divide their financial resources
o This is effective as this law aims to encourage cooperation for
dividing property
 Thorne V Kennedy
o The high court disregarded a prenuptial agreement between
a wealthy Australian property developer and his wife.
o This shows how the law is not working as it is not being
abided by, overall destroying the credibility of the financial
agreements.
o Shows the lack of enforceability of the courts in adhering to
financial agreements
 Shows how property arrangements are failing to meet the needs of
family members.
 Shows the lack of compliance of the courts in adhering to financial
agreements
 Shows how property arrangements are failing to meet the needs of
family members.
Paragraph 4:
Changes to Paragraph 1: Same sex marriage
family law as a  Before changes: Marriage Act 1961:
response to o Did not contain gender specific requirements  did not define
changing values marriage
in the community o They relied on common law definitions to using precedents
such as:
o Hyde v Hyde: marriage was between a man and women
o Any cases that went to court relied on Hyde v Hyde
established that marriage is between a man and women
 2004: Federal government changes the Marriage Act 1961 through
the Marriage Amendment Act 2004 (Cth)
o Redefining marriage as specifically between a MAN and a
WOMEN in order to lock out same couple in s5. Any marriage
they had previously occurred in a country that granted SS
marriage was now void in Australia.
o Did not meet the needs of the community. Whist other
countries were accepting ss marriage  Netherlands become
the first county to recognise same-sex relationships in 2001
 Same Sex legislative reforms 2017
o Marriage Amendment (definition and Religious Freedoms)
Act 2017
o Redefines marriage as ‘a union of 2 people, to the exclusion
of all others, voluntarily entered into for life’
Paragraph 2: Domestic violence- on the spot ADVOS
 The Crimes (domestic and personal violence) Act 2007 (NSW) was
amended in 2014 to allow police to give on the spot ADVOS.
 Values have changed to treat ADVOS criminally and for police to
investigate/prosecute, whereas in the past family violence was seen
as a private matter. Clearly the values have changed to ensure
violence is minimised.
 “Husband charged with 100 domestic violence related offences” smh
2015
o Highlights how ADVOs are not being enforced
Paragraph 3: Alternative family relationships

 Changes made for single parent families
 Single-parent families are legally recognised in order to ensure access
to welfare.
 Legislation governing this protects the right to receive maintenance
for dependants from their former spouse/ partner.
 There are many social issues confronting single parents including
facing difficulties accessing legal advice, difficulties obtaining
adequate legal protection, and having to pay high costs to pursue
their rights in court.
 Child support scheme:
o The child support scheme was introduces to enforce
maintenance orders on parents who do not reside with their
dependent children and was originally governed by the
Australian Taxation Office.
o It ensures that parents fulfil their responsibility towards the
children, providing support for the parent who the child
resides with.
o The child support (registration and collection) Act 1989 (Cth)
shifted the collection and enforcement of child support from
the courts to an administrative system.
Paragraph 4: Divorce
 New processes of determining criteria for divorce
 Change from the Matrimonial causes act 1959 (cth), only allowed
divorce if there was fault in marriage  adultery, cruelty, insanity
desertion
 Change to family law act which removed needs for a fault in the
marriage’
The role of law Paragraph 1: Divorce

reform in  New processes of determining criteria for divorce
achieving just  Change from the Matrimonial causes act 1959 (cth), only allowed
outcomes for divorce if there was fault in marriage  adultery, cruelty, insanity
family members desertion
and society  Change to family law act which removed needs for a fault in the
marriage’
 This act introduced the ‘no fault clause’, removing the need to prove
fault in the marriage, which achieves just outcomes for family
members through making the process less traumatic for both parties
and any children involves.
Paragraph 2: Domestic violence

 An ADVO and AVO is a court order designed to protect the victim
from future violence and intimidation by restricting the behaviour of
the perpetrator.
 ADVO’s are only applicable to domestic violence situations. Their
effectiveness is limited though, as they are very hard to regulate due
to the nature of the crime and violence occurring within the home.
 Effective: Amended in 2014 to allow police to give on the stop
ADVOS, fast track process, legal system is being more responsive to
the issue, taking the burden of the courts/legal system. Prevents
family members who are violent from fleeing the scene.
 Ineffective: ADVOS may not be enforced correctly was the police may
not understand metal or intellectual disorders, language barrier.
 Despite the legislation and on the spot ADVOs, they are still
problematic, not always enforced correctlycompliancecrimes are
still occurring while they have ADVOs
Paragraph 3: Same sex marriage
 Before changes: Marriage Act 1961:

o Did not contain gender specific requirements  did not define
marriage
o They relied on common law definitions to using precedents
such as:
Act 2017
Paragraph 4: education
 The right to an education is outline in the CROC and is the object of the
Education Act 1900 (NSW)
 The Education Act imposes on the state the duty to ensure that every child
receives an adequate education.
 It states that parents cannot refuse an education for their child but can
decide where their child is educated.
 The Education Amendment Act 2009 (NSW) makes it compulsory for a child
to attend an education facility from ages 16-17.
 Children who intend to leave school and have completed year 10 but are not
yet 17 years of age must be enrolled in some form of education, training, or
employment until they are 17.
Campbell V Campbell (1988)
 The court ruled that upon the divorce of two parents, the father would have
to pay child support payments for as long as the children of the marriage
would still be in school.
 Children are entitled to educated and it is the parent’s legal obligation of
having to allow them access to education.
The effectiveness Paragraph 1: Same sex marriage
of legal and non-  Before changes: Marriage Act 1961:
legal responses in o Did not contain gender specific requirements  did not define
achieving just marriage
outcomes for o They relied on common law definitions to using precedents
family members such as:
Act 2017
 “What does same-sex marriage mean for property proceedings?”
(Coleman Greig Lawyers, 2018)
o The introduction of same-sex marriage will see same-sex
couples have a greater access to legal protections
surrounding both financial and parenting matters.
o Previously it would be harder for de-facto couples to meet
certain criteria to establish their relationship and that there
was a common residence and financial dependence
compared to married couples, now it will be easier.
Paragraph 2: ADVOS
 Values have changed to treat ADVOS criminally and for police to
investigate/prosecute, whereas in the past family violence was seen
as a private matter. Clearly the values have changed to ensure
violence is minimised.
 “Husband charged with 100 domestic violence related offences” smh
2015
o Highlights how ADVOs are not being enforced
Paragraph 3: NGO- Domestic violence
 NGOs primary aim is to support and assists familied who may be in
difficulty
 Reliant on donations and government funding
 They offer short term accommodation, counselling, legal assistance,
support groups, and basic facilities.
 Luke Batty Foundation:
o In 2014, Batty established the Luke Batty Foundation to assist
women and children affected by domestic violence.
o Luke Batty (11) was beaten to death by his father with a
cricket bat in front of onlookers
o His 54-year-old father Greg was shot by police at the scene
o The father had an ADVO against him at the time – had a
history of mental illness and domestic violence
o Key role in the establishment of the Royal Commission into
Family Violence
o Initiated the government’s $100 million domestic violence
package in 2015
 The Crimes Act 1900 (NSW) allowed for the criminalisation of same-
sex activities
 Toonen v Australia
26.
 Effective:
o The decriminalisation means they are responsive to the issue
o Responsive and aligns to the changing values
 Ineffective:
o it was slow and inconsistent between states.:
o NSW: 1984, TAS: 1991
o Almost a decade between changes in states
Family law themes and challenges- contemporary issues

The role of the Paragraph 1: Decriminalisation of same sex relationships (SS)
law in  Australia’s law criminalising same sex relationships violated Article 17
encouraging of the ICCPR- right to privacy  Australia was not complying with
cooperation and international law
resolving conflict
in regard to  Toonen V Australia
family o In 1991, a homosexual man from Tasmania, sent a
26.
Paragraph 2: property and financial restrictions (SS)

 Young v Australia (1999)
 In 1999, Mr Edwards young took a complaint against Australia to the
Human Rights Committee.
 Under the current Australian veterans’ entitlements laws, same-sex
couples are not entitled to the same veterans’ pensions as opposite-
sex couples.
 The Committee found that Mr Young had been discriminated against
under Article 26 of the ICCPR and was entitle to an effective remedy,
including the reconsideration of his pension application.
 The committee noted that the state party (Australia) is obliged to
ensure that similar violations of the Covenant do not occur in the
future.
 Acknowledge issues in property and finance laws
 Australia has been responsive in a reactive way
 Reform only happened 10 years later: delay and lack in
responsiveness
 Miscellaneous Act Amendment (Same sex relationships) Act 2008
NSW
o Same sex couples fall under the definition of “spouse” and
can apply for the same benefits
o Superannuation: Private sector superannuation trustees who
are in same-sex spousal relationships can make their partner
and their child the eligible recipient of reversionary benefits
(your pension paid out to your partner or children in the form
of an income stream following your death)
o Tax: Same-sex couples receive access to the same tax
concessions (looked as a combined income) are opposite-sex
couples who are registered as married or de facto.
Paragraph 3: Surrogacy Act 2010 (SBT)
 before 2010 the woman who gives birth to the child was regarded as
the mother – whether conceived naturally or artificially, with donated
ovum and donor sperm. This legal status was found in:
 Status of Children Act 1996 (NSW)
 In the past, Status of Children Act 1996 (NSW) meant that a child’s
legal parents were presumed to be the birth parents. This meant that
commissioning parents despite being the parents raising the child,
would not be recognised as the legal parents and could face
difficulties if trying to enrol the child in a school, gaining access
certain government benefits or apply for a passport for the child.
 Under the Surrogacy Act 2010 (NSW), it is now possible to transfer
the parentage of the child from the birth parent to the prospective
parent in the surrogacy contract, rather than go through the formal
adoption process if certain conditions are met:
o The arrangements are in the best interests of the child
o The surrogacy arrangement is ‘altruistic’ (not for money)
o The intended parents are of a certain age (25) and/or of
demonstrated maturity when entering the agreement
o The agreement is in writing
o There is medical or social need for the surrogacy
o Parties have been cancelled; and
o Everyone concerned, including the birth mother, consents to
the parentage order being made.
 Cooperation and conflict the new parentage orders grants the
commissioning parents full legal capacity to make decisions in the
child’s interest to provide relief and certainty for all parties involves
in surrogacy arrangements. The order also ensure status of the child
would be recognised in matters concerning:
o Wills, property, relationship registers and other government
entitlements.
Issues of Paragraph 1: Decriminalisation of same sex relationships

compliance and  Australia’s law criminalising same sex relationships violated Article 17
non-compliance of the ICCPR- right to privacy  Australia was not complying with
international law
26.
Paragraph 2: care and protection of children neglect
 If a child is neglected or abused, the Children & Young Persons (Care and
Protection) Act 1998 (NSW) empowers the Children’s Court to make an
order for the child to be cared for and controlled by someone else.
 Neglect has undergone significant reform. It has been effective to ensure
that the child’s best interest is protected and free from harm or neglect. 
upholding CROC
 Lack of compliance, Shelley wards case highlight lack of compliance, parents
failed to comply with he legislation. Despite the children’s and young person
act, Shelley wards parents did not comply with the legislation. As a result of
lack of compliance there was a reform in the legislation.
Shelley ward case: R v BW & SW
 The offenders, SW and BW were the parents of a seven-year-old girl known
as Ebony. She had been diagnosed with autism and died in November 2007
as a result of starvation and neglect over a twenty-month period.
 Several doctors who gave evidence at the trial of her parents testified that
Ebony suffered from the most severe case of malnutrition they had ever
seen.
 After a five-week trial, the girl’s mother SW was found guilty of her murder
and sentenced to life imprisonment and the girl’s father BW was found
guilty of manslaughter and sentenced to 16 years with a non-parole period
of 12 years.
 How a little girl could literally starve to death and not be noticed by the
school, the Department of Community Services, the Department of Housing,
the Department of Education and Training and the medical profession.
 However, it was clear from the evidence in the trial that Ebony disappeared
from view completely in July 2006 – she did not even appear in family
photographs. Her last visit to a medical doctor was on 27 March 2006.
Changes to Paragraph 1: Same sex marriage

family law as a  Before changes: Marriage Act 1961:
response to o Did not contain gender specific requirements  did not define
changing values marriage
in the community o They relied on common law definitions to using precedents
such as:
Act 2017
 Australia’s law criminalising same sex relationships violated Article 17
of the ICCPR- right to privacy  Australia was not complying with
international law
26.
Paragraph 3: state legal responses to discipline (CPC)

 “Reasonable physical force according to age, health and maturity: CRIMES
ACT 1900 NSW.
 The Crimes Amendment (Child Protection-Physical Mistreatment) Act 2002
(NSW) restricts parental rights as they are restricted to use corporal
punishment by the use of physical force on the head or neck of the child
(only fleeting pain is permitted).
“Why is it still legal for adults to hit children as punishment” (ABC, 2019)
 Outlines the legislation may be stripping away the parents’ ability to
discipline the `way they choose as they fear criminal charges.
 Among the reasons to oppose all corporal punishment of children is that
even relatively mild physical punishment carries the risk of serious
psychological harm to children.
 Parental spanking is associated with increased aggression, antisocial
behaviour, mental health problems and low self-esteem in children, as well
as negative parent-child relationships.
The role of law Paragraph 1: Same sex marriage

reform in  Before changes: Marriage Act 1961:
achieving just o Did not contain gender specific requirements  did not define
outcomes for marriage
family members o They relied on common law definitions to using precedents
and society such as:
Act 2017
Paragraph 2: state legal responses to discipline (CPC)
 “Reasonable physical force according to age, health and maturity: CRIMES
ACT 1900 NSW.
 The Crimes Amendment (Child Protection-Physical Mistreatment) Act 2002
(NSW) restricts parental rights as they are restricted to use corporal
punishment by the use of physical force on the head or neck of the child
(only fleeting pain is permitted).
“Why is it still legal for adults to hit children as punishment” (ABC, 2019)
 Outlines the legislation may be stripping away the parents’ ability to
discipline the `way they choose as they fear criminal charges.
 Among the reasons to oppose all corporal punishment of children is that
even relatively mild physical punishment carries the risk of serious
psychological harm to children.
 Parental spanking is associated with increased aggression, antisocial
behaviour, mental health problems and low self-esteem in children, as well
as negative parent-child relationships.

entitlements.
The effectiveness Paragraph 1: Same sex marriage

of legal and non-  Before changes: Marriage Act 1961:
legal responses in o Did not contain gender specific requirements  did not define
achieving just marriage
outcomes for o They relied on common law definitions to using precedents
family members such as:
Act 2017
 “What does same-sex marriage mean for property proceedings?”
(Coleman Greig Lawyers, 2018)
o The introduction of same-sex marriage will see same-sex
couples have a greater access to legal protections
surrounding both financial and parenting matters.
o Previously it would be harder for de-facto couples to meet
certain criteria to establish their relationship and that there
was a common residence and financial dependence
compared to married couples, now it will be easier.
 The Crimes Act 1900 (NSW) allowed for the criminalisation of same-
sex activities
 Toonen v Australia
26.
 Effective:
o The decriminalisation means they are responsive to the issue
o Responsive and aligns to the changing values
 Ineffective:
o it was slow and inconsistent between states.:
o NSW: 1984, TAS: 1991
o Almost a decade between changes in states


entitlements.
Paragraph 4: Non legal responses (CPC)
 Churches and organisations traditionally provide support and
education services for children in need.
 They have provided and continue to provide services for support,
counselling and emergency housing, childcare centres.
 Been criticised for lack of action in dealing with child abuse against
their own members e.g., clergy members of some religious groups
accused of misconduct and child abuse e.g., Royal Commission into
Institutionalised Child Sex Abuse was established in 2013 to
investigate YMCA, Catholic Church, and the Salvation Army.
 In response to these claims the Anglican Church has established
Professional Standards Unit to investigate complaints involving clergy
and other staff
 Child Abuse Prevention Services (CAPS)
o support workers offer information, referral, and ongoing
support to those affected by child abuse, concerned about
the welfare of a child, or needing family or parenting support.
o high-quality resources have been developed to help children,
their parents, their schools, and entire communities to tackle
child abuse and keep kids safe
o CAPS runs a range of free groups that help families and
children get the ongoing support they need.
o parent training programs that have been independently
evaluated and are demonstrated to produce real and
measurable positive outcomes for families, including the
highly acclaimed Positive Parenting Program (Triple P) and
Tuning into Kids.

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Family Law Themes and Challenges

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Family law themes and challenges

The role of the Paragraph 1: Divorce

Paragraph 3: Adoption (Contact veto)

Paragraph 2: Decriminalisation of same sex relationships

Paragraph 3: Financial agreements

Paragraph 3: Alternative family relationships

The role of law Paragraph 1: Divorce

Paragraph 2: Domestic violence

Paragraph 3: Same sex marriage

 Before changes: Marriage Act 1961:

Family law themes and challenges- contemporary issues

Paragraph 2: property and financial restrictions (SS)

Issues of Paragraph 1: Decriminalisation of same sex relationships

Changes to Paragraph 1: Same sex marriage

Paragraph 3: state legal responses to discipline (CPC)

The role of law Paragraph 1: Same sex marriage

Paragraph 3: Surrogacy Act 2010 (SBT)

 Under the Surrogacy Act 2010 (NSW), it is now possible to transfer

The effectiveness Paragraph 1: Same sex marriage

Paragraph 3: Surrogacy Act 2010 (SBT)

 Under the Surrogacy Act 2010 (NSW), it is now possible to transfer

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