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Sunday, October 10, 2010

Optional Focus Study 1 – Family

1)      Key Legal Concepts and Features of the Legal System:
a.       Concepts of a family in the law:
                                                              i.      The different functions of a family as dealt with by the law:
1.       Definition of Family: The natural and fundamental group unity of society it is responsible for the care and education of dependent children
2.       ABS: Two or more persons, one of whom is at least 15 years old. Who are related by blood, marriage (registered) or de facto, adoption or fostering and who are usually residents in the same household
                                                            ii.      Functions of families in society:
1.       Parents act as role models for their children teaching them socially acceptable behaviour
2.       Stability and security are provided for all members
3.       Emotional needs of parents and children are fulfilled by the family
4.       Parents have certain responsibilities and obligations towards their children to ensure that their basic rights are maintained
b.      The Institution of Marriage:
                                                              i.      Legal definition of marriage: The voluntary union for life between a man and women to the exclusion of all others. (Hyde v. Hyde and Woodmansee 1866) – The Marriage Act 1961
1.       Elements to definition:
a.       Union of man and women: relationship between two people of same sex is not legally binding (Corbett v. Corbett (1970) UK)
b.      Voluntarily entered into: Not legally binding if one partner is tricked or forced into marriage
c.       For life: Expresses intention of marriage not the actual nature of marriage
d.      Exclusion of all others: Polygamy is not accepted. Australia is a monogamous society
                                                            ii.      Requirements of a valid marriage: Outlined in Marriage Act 1961 (Cth)
1.       Marriageable age:
a.       18 years
b.      16-17 with consent of court
                                                                                                                                      i.      Only exceptional circumstances e.g. pregnancy, parental consent but court may still disallow
2.       Parental Consent:
a.       Between 16 & 18 years
3.       Prohibited degrees of relationship:
a.       Person cannot marry a blood relative (consanguinity)
                                                                                                                                      i.      Ancestor, Descendant or Sibling
                                                                                                                                    ii.      Applies to adopted persons as well
4.       Notice of Marriage:
a.       One to six months notice to celebrant (religious or register official)
b.      Register with Births, Deaths and Marriages Registry providing proof of marriage and evidence they are free to marry
5.       Requirements for a valid marriage ceremony and marriage licence:
a.       Authorised celebrant must conduct ceremony
b.      Two witnesses at least 18 years of age
c.       Celebrant gives a copy of the signed certificate to couple and registry
d.      Celebrant must state authority to perform ceremony
6.       Valid marriages: Marriage Act 1961 states a marriage may be regarded as void if:
a.       Either party already married
b.      Either party has not freely consented
c.       Under marriageable age
d.      Parties belonging to prohibited category of relationship
e.      Ceremony formalities are not complied with
c.       Legal Consequences and responsibilities of Marriage:
                                                              i.      Mutual duties of Husband and Wife:
1.       Known as the ‘consortium vitae’ includes all duties that society expects spouses to perform e.g.
a.       Living together in a sexual relationship
b.      Providing emotional support
c.       Sharing household work
d.      Supporting any children of the marriage
e.      Sexual assault can occur in a marriage under Crimes (Sexual Assault)Amended Act 1981 (NSW)
                                                            ii.      Maintenance:
1.       One spouse must financially support the other if they are unable to do so themselves
2.       Must support the child according to their needs and parents capacity to pay
3.       Spousal maintenance is limited under current statute, child maintenance has more legal support
                                                          iii.      Property Rights:
1.       Until end of 19th Cent. All rights and property of women were transferred to her husband upon marriage
2.       Common law regarded a couple as a single unit (unito caro)
3.       Now days,
a.       Property owned before marriage stays in possession of owner (Married Womens Property Act 1893 (NSW))
b.      Joint Tenancy – shared ownership
c.       Tenancy-in-common: specific proportion owned by each, neither can sell their share without consent from the other
                                                           iv.      Agency:
1.       Unito caro in 19th Cent.: Women could not make a contract on her own. Could enter contracts on behalf of her husband under doctrine of agency. The wife could not sue or be sued
2.       Now: Husbands and wives are separately liable under law of torts.
a.       Can be sued as individuals and sue
b.      Women can make contracts
c.       Agency does not operate with opposite spouses now days
                                                             v.      Wills and Family Provision Legislation:
1.       Wills:
a.       Wills, Probate and Administration Act 1898 (NSW):
                                                                                                                                      i.      Any will made prior to marriage is revoked upon marriage
                                                                                                                                    ii.      Revoked upon divorce since 1988
                                                                                                                                  iii.      Exception if will made in anticipation of marriage
                                                                                                                                   iv.      Person dies intestate (without a will) property usually goes to spouse unless if one spouse murdered the other
2.       Family Provision Legislation:
a.       Family Provision Act 1982 (NSW):
                                                                                                                                      i.      Allows supreme court to overturn a will excluding a spouse or children
                                                                                                                                    ii.      All those who make claim but not the current spouse or children will have to pay legal costs if unsuccessful
                                                                                                                                  iii.      Court only makes an order for a share in the estate of adequate provision was not already made from the estate or in deceased lifetime
d.      Legal Rights and Obligations between parents and children:
                                                              i.      Care and Control:
1.       Family Law Act 1975:
a.       Both parents are responsible for the short and long term care of their children
b.      Under 18 of age, parents have following responsibilities
                                                                                                                                      i.      Right to have daily care & control of the child
                                                                                                                                    ii.      Right to make decisions concerning the daily care and control of the child
c.       Children and Young Persons (Care and Protection) Act 1998 (Cth):
                                                                                                                                      i.      Children’s court can remove a child from control of parents if they are in danger of being harmed
d.      Children (Protection and Parental Responsibility) Act 1997 (NSW):
                                                                                                                                      i.      Parents can be held accountable for damage caused by their children
                                                            ii.      Education:
1.       Education Reform Act 1990 (NSW):
a.       Parents must ensure child attends school between 6 and 15yrs or have exemption to home school them
b.      Child can take parents to court if they want to continue to Yr12 but parents want Yr10
c.       Must study a course approved by BOS (NSW)
                                                          iii.      Discipline:
1.       Corporal punishment allowed only if reasonable and moderate
2.       Parents can be charged under Crimes Act 1990 (NSW) for assault
3.       Factors taken into consideration by court:
a.       Age, Size and Health of Child
b.      What they did
c.       Seriousness of blows
d.      What was used to deliver the blows
e.      R v. Hamilton (1891) – Child beaten with a loaded gun
                                                           iv.      Medical Treatment:
1.       Parents responsible for medical and dental treatment of children under 14yrs if in best interest of child
2.       Children have right to seek own medical treatment from 14yrs. Includes contraceptive or abortion. Minors (Property & Contract) Act 1970 (NSW)
                                                             v.      Autonomy of Children:
1.       Complete autonomy at 18yrs
2.       Under 18:
a.       Leave school without parent permission at 15yrs
b.      Choose own religion
c.       Seek medical advice at 14yrs
d.      Leave home at 16 if proof of independence
                                                           vi.      Inheritance:
1.       Parents are not obliged to bequeath property to their children
2.       Family Provisions Act 1987 (NSW):
a.       Allow minor to claim estate of deceased if left out of will
b.      Non-related but dependent children can also claim
c.       Ex-nuptial children may claim as well
e.      Dissolution of Marriage:
                                                              i.      Early law viewed marriage as indissoluble
                                                            ii.      Matrimonial Causes Act 1951 (Cth):
1.       Allowed divorce if one party was at fault
                                                          iii.      Family Law Act 1975:
1.       No fault concept of divorce
2.       “Irretrievable breakdown of Marriage”
3.       Couple must live separately and apart for 12mths before applying for divorce
                                                           iv.      Decree Nisi – Application for divorce successful
                                                             v.      Decree Absolute – One month period for couple to reconcile after Decree Nisi before divorce is finalised by Decree Absolute   
2)      Legal Issues and Remedies:
a.       Alternative Family Arrangements:
                                                              i.      ATSI Marriages:
1.       Not seen valid by law as no written agreement/certificate is made. All based on verbal agreement
2.       Arranged marriages are common
3.       Not considered official until a child is born
4.       Girls may marry at 12 years
5.       Don’t conform to definition of marriage/ de facto definition (duress, underage, polygamy, no written document)
6.       Recognised as de facto for purpose of adoption, custody, maintenance etc.
                                                            ii.      Single Parent Family:
1.       Increased over past decade
2.       Marriage breakdown, cohabitation breakdown and an increase in births to unmarried mothers
3.       Less likely to be employed, low income earners
4.       Reliance on government assistance
5.       Estimated 2 in 3 marriages breakdown
                                                          iii.      Blended Families:
1.       Parent and children from a former marriage live with another parent and his/her children
2.       Family Law Reform Act 1995 (Cth): Uncertainty on who should care for children after divorce. Adoption allows full rights on inheritance
                                                           iv.      Same Sex Relationships:
1.       Property (Relationships) Act 1984 (NSW): amendments made in 1999
a.       Same rights as de facto couples
b.      Anti Discrimination Act protects against discrimination based on sexuality but not to being in a same sex relationship
c.       Not allowed to adopt
d.      Must be together at least 2 years
e.      Marriage is not legal
                                                             v.      Polygamous Marriages:
1.       Not valid in Australia
2.       Marriages outside Australia can receive matrimonial relief under Family Law Act in relation to maintenance etc.
                                                           vi.      De Facto Relationships:
1.       Property (Relationships) Amendment Act 1999
a.       Valid if couples lived together 2yrs + or had a child
b.      Property division, maintenance, cohabitation agreements
c.       Child maintenance similar to marriage
                                                         vii.      Agreements:
1.       Family Agreement:
a.       Cohabitation and Separation Agreements – replaced with domestic relationship and termination agreements respectively
b.      Domestic Relationship Agreement:
                                                                                                                                      i.      How expenses shared
                                                                                                                                    ii.      Ownership of private property prior to relationship
                                                                                                                                  iii.      Property during relationship will be owned
                                                                                                                                   iv.       How individual debt is treated
                                                                                                                                     v.      How property and finances treated on termination
c.       Termination Agreement:
                                                                                                                                      i.      Sets out property and maintenance details
                                                                                                                                    ii.      Made by De Facto couples
2.       Pre-nuptial Agreement:
a.       Agreement before marriage on decisions involving property, finance etc.
b.      Covered under Family Law Act
b.      Parents and Children:
                                                              i.      United Nations Convention of the Rights of the Child (UNCROC):
1.       Four Basic Principles:
a.       Non-Discrimination against children
b.      Actions concerning children must be in best interest of the child
c.       All children have right to have their views expressed and heard
2.       Australia ratified in 1990
a.       Family law Reform Act 1995 largely drafted with concepts of ‘best interest of child’
b.      Children and Young Persons (Care & Protection) Act 1998 (NSW)
3.       Areas still requiring reform:
a.       Paedophilia
b.      Parents need to be forced to take care of homeless children
c.       Mandatory Sentencing allows young people to go to jail without judicial discretion
                                                            ii.      Birth Technology & Surrogacy:
1.       Birth Technology:
a.       Two Practices:
                                                                                                                                      i.      IVF
                                                                                                                                    ii.      Use of donated sperm in artificial insemination
b.      Status of Children’s Act 1996 (NSW) gave children conceived artificially same rights as normal conceived children
c.       IVF children have ability to find biological father if donor sperm used
2.       Surrogacy:
a.       A woman agrees to bear a child for another couple
b.      When child born it is adopted by couple
c.       Offence to exchange money for surrogacy under Adoption of Children (Amendment) Act 1982 (NSW)
d.      Births, Deaths and Marriages Registration Act 1995 (NSW) transfer of birth to surrogate mother on certificate illegal
                                                          iii.      Ex-Nuptial Children:
1.       Status of Children Act 1996 – Ex-nuptial  Children can make claim on estate if they can prove maternity/paternity
2.       Cared for under the normal parenting orders of the Family Law Act 1975 (Cth)
3.       Means ‘no-body’s’ child. Does not have one of the following :
a.       Not born in marriage
b.      Legitimised by subsequent marriage
c.       Child is adopted
                                                           iv.      Adoption and Guardianship:
1.       Adoption: process of moving parental rights and responsibilities from the biological parents to adoptive parents
a.       Three Acts cover Adoption:
                                                                                                                                      i.      Adoption of Children Act 1965 (NSW)
                                                                                                                                    ii.      Adoption of Children Amendment Act 1982 (NSW)
                                                                                                                                  iii.      Adoption Information Act 1990 (NSW)
1.       Stipulates children under 5 must know they are adopted
2.       Adoption Information Act 1990 (NSW):
a.       Child over 18 can have access to their birth parents
b.      Birth parents can have details of adopted parents
c.       Contact Veto Register: No contact wanted by Child or Parent. Valid for 10 years
3.       Guardianship:
a.       Care, control and maintenance
4.       Fostering:
a.       Rights of parents not surrendered
c.       Problems in Family Relationships:
                                                              i.      Causes: Many factors can cause arguments and conflicts these include:
1.       Money: Biggest reason for divorce, financial strain or how to spend
2.       Child Rearing: How children should be raised e.g. School
3.       Behaviour: Disagree on acceptable behaviour
4.       Division of Tasks: Household duties etc
                                                            ii.      Legal Response to Violence:
1.       Between Spouses:
a.       ADVO (Apprehended Domestic Violence Orders): Restricts the behaviour of the defendant for a period of time. Imposed by Local Court
                                                                                                                                      i.      Introduced under Crimes Act 1900 (NSW)
b.      Criminal Charges: In domestic Violence two common charges are:
                                                                                                                                      i.      Assault: Includes sexual assault or physical violence against the person. Covered under Crimes Act 1900
                                                                                                                                    ii.      Stalking and Intimidation: Following or spying on the person on those who fear violence from them. Also covered under Crimes Act 1900
c.       Crimes (Amendment) Act 1999: Allows use of cameras as a measure to show domestic violence
d.      Injunction by Family Court can be made by Supreme and District Court to stop someone doing something. Similar to an ADVO but more difficult to enforce
2.       By and Against Children:
a.       Against:
                                                                                                                                      i.      Have fewer options than adults usually because they are unable to leave the situation as they can be financially, psychologically and emotionally dependent on their parents.
                                                                                                                                    ii.      Two acts cover violence against children:
1.       Crimes Act 1900 (NSW)
2.       Children & Young Person (Care & Protection) Act 1998 (NSW)
                                                                                                                                  iii.      Certain people have a duty of care in these situations including doctors, teachers and social workers to notify DOCs
                                                                                                                                   iv.      If under 16 court can remove child from parents if necessary
b.      By:
                                                                                                                                      i.      Various Acts include:
1.       Children and Young Persons (Care & Protection) Act 1998 (NSW):
a.       Directed at children U/16
2.       Children (Criminal Proceedings) Act 1987 (NSW):
a.       Children under 10 cannot be charged with criminal act as they cannot have ‘mens rea’. 10-14 prosecution must prove child is capable of ‘mens rea’
3.       Young Offenders Act 1997 (NSW):
a.       Provides alternatives options for offenders
3.       Children in Trouble:
a.       DOCs can make them wards of State in Children’s Court.
b.      Family Decision Making Conference: alternative method to discuss how the child can be better cared for
                                                          iii.      Children’s Court and Legal Aid:
1.       Standard of proof is ‘very highly probable’
2.       Closed Court: away from public, media can report as long as child’s identity is not revealed
3.       Legal Aid is an automatic right for children, regardless of parents wealth
4.       Established 1905, deals with crimes if child was under 18 when they were committed
5.       Promotes best interest of the child
6.       Main aim is to reform and rehabilitate young offender
                                                           iv.      Dissolution of Marriage:
1.       Development of Family Law:
a.       Original law in Australia based on English Law but with broader grounds of divorce
b.      Matrimonial Causes Act 1959 (Cth): allowed divorce based on proof of fault. Reflected values of the time that marriage was a commitment for life:
                                                                                                                                      i.      Fourteen grounds for divorce including desertion, cruelty and insanity
                                                                                                                                    ii.      Taking blame for fault negatively affected custody, access and maintenance etc.
c.       Family Law Act 1975 (Cth):
                                                                                                                                      i.      One factor for divorce replaced the fourteen in the Matrimonial Causes Act 1959
                                                                                                                                    ii.      Irretrievable breakdown of marriage. Following proof needed:
1.       Lived apart at least 12 months (can be under same roof) must not treat each other as man and wife
2.       12 months begins once one announces end of marriage. Allowed 3 month period to solve problems without 12 months starting again
3.       Marriages less than two years must undergo counselling before applying for divorce
d.      Family Law (Amendment) Act 1987 (Cth):
                                                                                                                                      i.      Children now covered by Act, whether marriage or not
                                                                                                                                    ii.      Allowed anyone in  welfare of child to commence proceedings
e.      Family Law Reform Act 1995 (Cth):
                                                                                                                                      i.      Reforms aimed to cut legal costs, and speed up divorce process. E.g. Counselling, Mediation and Arbitration
f.        Nullity:
                                                                                                                                      i.      Marriage void if the grounds of marriage are void
                                                                                                                                    ii.      E.g. neither party free to marry, in a prohibited relationship etc.
2.       Family Court of Australia:
a.       Est. Under Family Law Act 1975
b.      Separate court required to deal with increase in divorce
c.       Better management of the area of law
d.      Specialised, sensitive judges appointed to deal with the issues
                                                                                                                                      i.      Lawyers and Judges need to use different skills to negotiate with upset families
e.      Degree of privacy and less formal to reduce stress and trauma
f.        Hearings can be conducted in a closed court to protect privacy of couples
                                                             v.      Counselling:
1.       Under Family Law Reform Act 1995:
a.       Counselling, Mediation and Arbitration are now primary dispute resolution methods used by the Courts
b.      People encouraged to use the courts counsellors, mediators and registrars to sort out arrangements
c.       Mediation: Court mediation, Public or Private approved organisation
d.      Arbitration: Use of third party to avoid formal public hearings
2.       Limits of Courts Jurisdiction:
a.       Both original and appellate (3 Judges +) jurisdiction
b.      Jurisdiction in matters of principal relief and ancillary relief (matters associated with divorce)
c.       De facto couples cannot be dealt with by the Family Court
                                                                                                                                      i.      Custody matter can be heard in Family Court after 1987. Meaning their separation may have to be dealt with in two separate courts
d.      Decisions must be approved by Family Court

3.       Parental Responsibility and Parental Orders:
a.       Responsibility:
                                                                                                                                      i.      Broadly defined as “all duties, powers, responsibilities and authority, by law, parents have in relation to children”  
1.       Both parents are responsible unless court decides otherwise
                                                                                                                                    ii.      Family Law Reform Act 1995 moved focus of Family law from parents rights to children rights and parental responsibilities
1.       Rather them right to custody, parents now have responsibility for the care and welfare of children
2.       Most important considerations is “Child’s best interests” as under UNCROC
b.      Parenting Orders:
                                                                                                                                      i.      Residence Orders:
1.       Deal with where Child lives, does not grant complete control like a custody order. Child may have two places of residence. One in week, one on weekends
                                                                                                                                    ii.      Contact Orders:
1.       Previously called ‘access orders’. Deal with who child is to have contact with. Sets times with agreed people. Children have right to regular contact with both parents unless otherwise stated
                                                                                                                                  iii.      Child Maintenance Child:
1.       Payment made by one partner to another of previous marriage for support and up keep of the child. Responsibility of both parents to provide for child
                                                                                                                                   iv.      Specific Issues Orders:
1.       Deals with a range of other matters. E.g. Schooling, child care
                                                                                                                                     v.      Child Support Scheme: 
1.       Payments may be deducted at source > Sent to Child Support Agency > Dept. Social Security > Residential Parent. Allows adjustment of any pension being paid by residential parent
c.       Property Allocation:
                                                                                                                                      i.      Matrimonial property includes all property purchased during the marriage and before marriage
                                                                                                                                    ii.      Parties may have agreement themselves
                                                                                                                                  iii.      If problems arise they have up to 12 months after divorce to obtain court order
                                                                                                                                   iv.      May make agreement in writing and have enforced by the court
                                                                                                                                     v.      If no agreement can be reached the court will decide
                                                                                                                                   vi.      Under Family Law Act the court will consider:
1.       Financial contribution made towards the property
2.       Other contributions
3.       Contributions in the form of child rearing & home making
4.       The effect of any order would have on the earning capacity of either party
5.       Age and health of both parties
6.       Which parent has residential orders
d.      Spousal Maintenance:
                                                                                                                                      i.      Usually awarded to those who are unable to adequately support themselves e.g. Child rearing, illness, lack of skills
                                                                                                                                    ii.      Court will consider:
1.       Income of spouses
2.       Costs associated with maintain family home and whether any government support is available
                                                                                                                                  iii.      Usually only granted in short term
e.      Problems of Enforcement:
                                                                                                                                      i.      Problems with Court orders can arise when:
1.       Custodial parent continually refuses contact (e.g. Kids are sick)
2.       Either custodial or non-custodial parent taking child out of country
3.       Enforcement can be difficult, time consuming and costly. Non-custodial parent usually resigns to having less contact
                                                                                                                                    ii.      Problems regarding maintenance payments;
1.       Dominant spouse attempt to avoid maintenance by claiming inability to pay
2.       Non-custodial parent may be innocent party in marriage and refuses to support former spouses
3.       Non-custodial parent may have a new partner and started another family making it difficult to afford
4.       Liable parents change name, residence, under declare their income or leave country making tracing them difficult
4.       Agreements:
a.       Family Law Reform Act 1995 and Family Law (Amendment) Act 2000 rely heavily on the parties to reach agreements without court involvement
b.      Parenting Plans:
                                                                                                                                      i.      Agreement in writing between divorcing couples on any aspect of children’s lives. E.g. Who they live with, they can see, maintenance arrangements)
                                                                                                                                    ii.      1996 the Family Court introduced a Parenting Plan kit:
1.       Easy to fill in by both parents and to receive independent legal advice before submitting to court
2.       Quick and simple procedure
c.       Cohabitation Agreements:
                                                                                                                                      i.      Recognised under Property (Relationships) Act 1984
                                                                                                                                    ii.      Govern a de facto couples financial affairs and property
                                                                                                                                  iii.      Made at start of during relationship
                                                                                                                                   iv.      To be valid:
1.       Must be in writing and signed by the partner against whom it is enforced
a.       Each partner receive independent advice from a solicitor
d.      Pre-Nuptial Agreements:
                                                                                                                                      i.      Signed by a couple before their marriage
                                                                                                                                    ii.      Now legally recognised under Family Law (Amendment) Act 2000
                                                                                                                                  iii.      Family Court must enforce the terms of the agreement unless circumstances change and enforcement would be a serious injustice
                                                                                                                                   iv.      New Act also allows people to make binding financial agreements about their property during marriage and after separation
1.       Enables people to take control of affairs outside of the court
                                                                                                                                     v.      Pre-Nup appeals to:
1.       Those marrying first time later in life (Substantial assets or seen a friend in divorce)
2.       Marrying for second time
3.       Have built substantial assets from successful careers and want to preserve them
3)      Morality, Ethics and Commitment to the Law:
a.       The Extent to Which Law reflects moral and ethical standards:
                                                              i.      More closely related to morals and ethics than any other area of legal practice
                                                            ii.      Acceptance of no-fault Divorce in 1975, many believe it still should be a fault base for divorce
1.       Fault is being reintroduced into property claims and child settlements in cases of domestic violence. Belief the victim should still be compensated
                                                          iii.      Same-sex relationships:
1.       Increasingly recognised within last 20 years in common law
2.       Property (Relationships) Legislation Amendment Act 1999 (NSW) was first recognition in statue
                                                           iv.      De facto Relationships:
1.       De facto Relationships Act 1984 shift in morality in society as recognition of relationships outside the traditional marriage
                                                             v.      Increasing recognition of domestic violence and intolerance of those who inflict pain on family
1.       Domestic violence now viewed as a criminal act and not a matter of civil law
                                                           vi.      Increasing awareness of new birth technologies
1.       Requirement of debate in court on the rights of parents to genetically modify their baby. E.g. Resolve severe genetic disorders vs. Immoral to modify a human
b.      Commitment to the Law – the issue of compliance and non-compliance;
                                                              i.      Law only effective when majority of society agrees to be bound by it
                                                            ii.      Family law has high rate of non-compliance due to the high level of emotion that can be involved
                                                          iii.      One in five ADVOs breached a month in NSW
1.       Low level reported
2.       Those reported are not always dealt with efficiently by police
                                                           iv.      Child Support:
1.       Easy to dodge e.g. False declaration of income, move internationally
                                                             v.      Children:
1.       Lack of law on new birth technology
2.       Lack of legislation of surrogacy
3.       International adoption can be done illegally and easily
4)      Effectiveness of the Law:
a.       Factors to be considered when evaluating the effectiveness of law in achieving justice:
                                                              i.      For Individuals:
1.       Equality and Accessibility:
a.       Family law can be very expensive
b.      Legal Aid can be difficult to obtain and poses a problem of equity
c.       Remote areas have difficulty accessing information and legal services
d.      Lack of privacy
e.      Use of alternate methods e.g. Mediation, Arbitration
2.       Enforceability:
a.       ADVOs have helped with regards to domestic violence
b.      Child Support Agency has encouraged compliance of parenting plans and child support
c.       Magistrates must justify why not to remove violent partners from families (old law)
3.       Resource Efficiency:
a.       Various alternative dispute resolution methods now available
b.      Cuts in funding to Legal Aid mean less available to those who apply
c.       Problems with DOCs
4.       Protection and Recognition of Individual Rights:
a.       Often no party at fault
b.      Difficult to protect rights of all in a faulty dispute, leads to conflict
c.       Difficult to protect rights of parents seeking a parenting order and ensuring rights of child protected
d.      Adopted child, adopting parents and biological parents
e.      Courts must follow correct legal procedure rigorously
                                                                                                                                      i.      General principle of achieving the ‘most just’ outcome tends to be used
                                                            ii.      For Society:
1.       Resource Efficiency:
a.       Greater emphasis on programs to assist families
b.      Argued the adversarial nature of the Family Court promotes conflict for financial interest of divorce lawyers
c.       Cuts in funding to Legal Aid and Courts are under resourced
d.      Some duplication of resources between state and federal government e.g. Welfare
2.       Law as a Reflection of Community Standards and Expectations
a.       Family law tends to divide community issues
b.      The law does reflect community standards and expectations
c.       Can be challenged at time but generally the case
d.      Issues such as same sex relationships, birth technology will arise challenges on community standards and expectations
3.       Opportunities for Enforcement:
a.       Often no one  has broken a law, only require a dispute solved
b.      Becomes an issue when dispute resolution breaks down:
                                                                                                                                      i.      E.g. ADVOs, court orders are ignored
                                                                                                                                    ii.      Criticism on effectiveness on such methods for issues such as domestic violence
4.       Appeals and Review:
a.       Appeal follows same procedure as in any other are of law
                                                                                                                                      i.      Range of alternative dispute resolution available as well
b.      Family law undergoes constant review
                                                                                                                                      i.      Ensures the law keeps up to date with social views
5.       Balance of Individual and Community Values and Rights:
a.       Rights of Individual must be maintained, should not be at the expense of the rights and values of the community
b.      Minimal conflicts in most areas of Family law
                                                                                                                                      i.      Considerable conflict in regards to moral values
                                                                                                                                    ii.      Conflict in domestic violence and child abuse
c.       Fine balance between parental rights of discipline and child rights to safety
                                                                                                                                      i.      Main concern is welfare of the child
5)      Law Reform:
a.       The Agencies of Reform and the conditions that give rise to the need for reforms:
                                                              i.      Agencies:
1.       Law Reform Commissions:
a.       NSW Law Reform Commission advises on de facto relationships, reproductive technologies, adoption, wills and child protection
b.      Australian LRC advises on changes to the Family Law Act. 1975 (Cth)
                                                                                                                                      i.      Bring changes in all areas of family law
2.       Parliament:
a.       Play critical role in any jurisdiction in reforming Family Law
                                                                                                                                      i.      Family Law Act 1975 was launched by Federal parliament
                                                                                                                                    ii.      Family Law Court subject to constant review and many changes brought by them
                                                                                                                                  iii.      De facto and same sex relationships have been recognised by state parliaments
3.       Courts:
a.       Many reforms occurred through common law
b.      E.g. First to accept the concept of ‘battered women’s syndrome’ as a legitimate defence
                                                            ii.      Conditions for Reform:
1.       Changing Social Values and Composition of Society:
a.       As society values change the law must reflect the changing views
                                                                                                                                      i.      E.g. Favour of a simpler divorce process
b.      The composition of society changing e.g. Religious beliefs have less meaning today
c.       Growth of multiculturalism and diversity of beliefs mean many have differing opinions and has lead to requirement for reform
2.       New concepts of Justice:
a.       Not static, justice changes as society faces new challenges
b.      In last 30yrs what is acceptable now has dramatically changed
c.       Some areas affected include: No fault divorce, same sex relationships, children rights
d.      Refocusing on justice and for whom we are trying to achieve just outcomes
                                                                                                                                      i.      Improvements can be time consuming and can adversely affect the people involved
3.       Failure of Existing Law:
a.       Difficult to judge whether laws are failing or aspects of society are moving quicker than law anticipates
b.      Legislative change can take a long time
c.       Discussion of future in domestic violence and protection of children
4.       International Law:
a.       Importance of international law increased in recent decades
b.      UNCROC places responsibility on signatory nations to abide by the agreement
c.       Increasing focus of ‘best interest of child’ has arisen from International law
5.       New Technology:
a.       Created greatest challenge to the effectiveness of law reform
                                                                                                                                      i.      Affects all areas of law
b.      Various means of conception now create an issue of whether the law adequately covers maternity and paternity and the rights of the child
c.       NSW first state to pass legislation relating to status of children
                                                                                                                                      i.      Artificial Conception Act 1984 (NSW)
                                                                                                                                    ii.      Status of Children Act 1996 (NSW) extended definition of parentage to include donated ova
d.      All States have now passed similar laws                

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