Legal Studies Extended Response – Family Law – Band 6

Family law is the body of law pertaining to marriage and matrimonial issues. Its main aim is to protect
each member of a family, whether that family is nuclear, de-facto, single parent, Aboriginal or Torres
Strait Islander or blended in nature, as family is the foundation of society. It can be argued that
(INTERGRATE QUESTION) in regards to the recognition of same-sex relationships, surrogacy and birth
technologies and the changing nature of parental responsibility.

The legal recognition of same-sex relationships in Australia has evolved since the 1980s to a point where
most jurisdictions provide same-sex couples with the same rights and obligations as heterosexual de-
facto couples. The recognition of homosexual peoples was first reflected in 1982 through the insertion
of Part 4C into the Anti-Discrimination Act (NSW). At the federal level, the 1984 Federal Sex-
Discrimination Act (Cth) was enacted. Demographically, Australia is continuously developing into a more
secular society, resulting in the waning influence of the Christian Church on the political front.
Nevertheless, the 2004 Amendment to the 1961 Federal Marriage Act, which defined marriage as the
legal union between a man and a woman”, was described by many as “enshrining the institution of
marriage”, and is only reflective of the views held by the more conservative and religious members of
society. To this day, the legal definition of marriage remains unreflective of society’s progressive views,
resulting in the law (INTERGRATE QUESTION)

Furthermore, the refusal to enact the Same-Sex Marriage Bill which was introduced by the Greens in
2005 means that Australia is not responding to its international obligations. As a signatory to the ICCPR,
it is the duty of law makers to ensure that all aspects of this covenant are adequately enshrined in
domestic law in order for it to be recognised in Australia. Article 26 of the ICCPR states that “all persons
are not to be discriminated under the law” regardless of their sexuality. Supporters for marriage equality
argue that in an increasingly agnostic society, marriage is less about religion and more about the legal
protection it affords, meaning that Australia is not responding to its international duties. Opponents,
however, argue that the covenant is not legally binding on Australia; therefore there is no need to
enshrine marriage equality into law. This exemplifies the idea that while international covenants
highlight international perceptions of equality and fairness; they are ineffective ensuring that all rights of
individuals are upheld in the law of its signatory nations. This is because signatory nations may choose
not to implement all terms of the covenant into their domestic law. This further demonstrates that
(INTERGRATE QUESTION) in the area of marriage equality.

Technology has and continues to evolve at rapid rate; however laws governing the use of such
technologies in some areas are failing to keep pace. This is apparent in the area of surrogacy and birth
technologies, as developments in technology which have allowed for women who are unable to
conceive to start a family have not been legalised since their development. Commercial surrogacy is
illegal in NSW under the Assisted Reproductive Technology Act (2007), and it is illegal under the 2010
Surrogacy Act to partake in surrogacy overseas. Various lobby groups and organisations have opposed
surrogacy on moral grounds, claiming that it would pave the way for an individual to “order” a baby.
Others have embraced this technology, claiming that it allows desperate would-be mothers and
homosexual couples a second chance at having children.
 Legal Studies Extended Response – Family Law – Band 6

Altruistic surrogacy, unlike commercial surrogacy, involves no monetary payment or financial gain to be
made available to the gestational carrier and therefore ensures that women do not exploit their bodies
in this manner for financial assistance. Altruistic surrogacy is legalised in NSW under the Surrogacy Act
2010 to accommodate the views in society which believe that this technology is beneficial for women in
the community who are unable to conceive. Furthermore, the Adoption Amendment (Same-Sex
Couples) Bill, which was passed in the NSW parliament in 2010, has made it easier for homosexual
people to start a family through employing a surrogate, as both parties can apply to adopt the child of
the biological parent. This demonstrates that although the law has taken many years to be codified, it is
evolving to reflect society’s values by allowing this technology to be accessed by all people in the
community, regardless of the sexuality. Furthermore, this demonstrates that the law is (EFFECTIVE AND
INTERGRATE QUESTION)

The law has responded to society’s changing views in the area of parental responsibility, as there has
been a shift from a view of parental rights to control their children to a view of parental responsibility. In
1990, Australia ratified the Convention on the Rights of the Child (CROC), which reflected the
international community’s changing values in the area of child protection. Although this convention has
not been fully recognised in Australia through legislation, state legislation such as the Children and
Young Persons (Care and Protection) Act and the Children (Protection and Parental Responsibility) Act
have been enacted in the best interests of the child and in accordance with this convention. Under this
legislation, NSW police have the power to take children home if they are at risk of becoming involved in
anti-social behaviour, thus upholding the view that the child is of paramount concern. This emphasises
the responsibility of parents to their children, as it allows the parents to teach their children morals and
values and gives the responsible parents an opportunity to address problems before they escalate. This
demonstrates the international community’s and society’s expectations that the protection of the most
vulnerable members of society are of paramount importance and is (INTERGRATE QUESTION)

On a federal level, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was
enacted; allowing for a greater emphasis on shared parental contact and parental responsibility in
broken families. The obligation to take responsibility for the care and financial support of a child is
considered to be one that should be met by both parents, and this legislation codifies this belief into
law. The effectiveness of this legislation, however, can be adversely affected when a parent manifestly
fails in their responsibility to their children whilst the child is under their care, as there is a high cost
associated with running government bodies designed to handle such cases. For example, in the case of
Kiesha Abrahams, the Department of Community Services (DOCS) had been informed several times of
the danger that this child was in under the care of her mother and step-father, however, due to DOCS
being under-resourced, they failed to act resulting in her brutal murder. If DOCS had been better
resourced, Kiesha’s biological father may have had full custody over her which may have prevented her
from being subjected to neglect. (INEFFECTIVE AND INTERGRATE QUESTION)

In essence, the law has ultimately responded to the contemporary issues concerning surrogacy and birth
technologies, as well as the changing nature of parental responsibility, and still continues to languish
behind the progressive views regarding the recognition of same-sex relationships. The lengthy time
 Legal Studies Extended Response – Family Law – Band 6

taken, however, for the law to respond to these issues has impeded upon its effectiveness as a means of
(INTERGRATE QUESTION).