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Family Law: Topic Summary of Chapter/Study Notes

Family Law: Topic Summary of Chapter/Study Notes

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Published by Rizwan Zafar
HSC LEGAL STUDIES:STUDY NOTES ON FAMILY LAW.
HSC LEGAL STUDIES:STUDY NOTES ON FAMILY LAW.

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Published by: Rizwan Zafar on Aug 16, 2010
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08/20/2013

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FAMILY LAW: STUDY NOTES
FAMILY LAW
What are the family structures how does their recognitionand protection vary under the law:-
FormDefinitionJurisdictionLegislation
Marriagevoluntary unionfor life of one manand one woman tothe exclusion of all others’ Under FederallegislationMarriage Act 1961 (Cwlth)Family Law Act De FactoAct as a marriecouple but are not actually married  After two yearsof co-habitation they are recognised under stateleg. Futureneeds are not considered upondissolution.Property (relationships) Act 1984(NSW)Same Sex CouplesUse your imagination.For many  purposes protected thesame asheterosexualdefactocouples.Exceptionsincludeadoption.NSW leg.Property (Relationships)Legislation Amendment  Act 1999(NSW)Customary MarriagesTraditionalmarriagesbetween Aboriginal/T.S peoplesNot recognised. Although uponbreakdown protected by state de factolegislationNone – the Aust. LawReformCommissionrecommended that for specific purposes cust.Marriagesshould berecognised.PolygamousHaving more thanone spouseThe first marriage isrecognised under normalfed. Leg.Marriage Act 1961 (Cwlth)Single Single parent Not specific Anti-
1R I Z W A N Z A F A R
 
FAMILY LAW: STUDY NOTES
 parentfamilies 5:1 =females to malesissues such asdiscriminationbased onfamily status =NSW Discrimination Act 1977(NSW)Blended FamiliesStep familyKids = fed.Their claim tostep-parentsestate = NSW Family LawReform Act 1995 (Cwlth)re. equal careof kids/ stepkids
The law has a strict definition and requirements of validmarriages:-
 The definition is provided by Hyde V Hyde and Woodman (1866). It isalso in the Family Law Act and Marriage Act. ‘The union of a man anda woman to the exclusion of all others voluntarily entered into forlife’.
A valid marriage must have fulfilled the followingrequirements:
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 society’s values of marriage.2. The notice of marriage to ensure that it is not rushed3. Marriageable age – to ensure that the couple are old enough to‘know what they are doing’ – and thus don’t end up divorced4. To protect the members and the kids of the marriage (i.e. againstincest) and society’s values
What are the legal rights and obligations between parentsand children:-Child-care/control
The 1995 Family Law Reform Act 1995 (Cwlth)
stipulates that bothparents are responsible for the short and long-term care of theirchildren, unless there is a court order to the contrary. It also changedthe terminology to reflect a change in mentality – focusing onparental responsibility rather than parental rights. The law will only intervene when a child has been abused, neglectedor is uncontrollable. Child welfare authorities have the power toremove a child from the home if they suspect improper care. TheChildren and Young Persons (Care and Protection) Act 1998 (NSW)
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FAMILY LAW: STUDY NOTES
empowers the Children’s Court to remove the child. It also broadenedthose 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 musthowever be reasonable.
Inheritance: if a dependent child is excluded from a parent’swill, the
Family Provision Act 1982 (NSW)
can insist in adequateprovision of the child from the sill.
International Obligations
Australia is a signatory to the
United Nations Convention on theRights of the Child 
– ratified it in 1990. The Family Law Reform Act1995 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 statusof children conceived artificially.Ethics committees attached to IVF clinics address many of theconcerns as the law is largely slow to change and not comprehensive.In 1988 the National Bioethics Consultative Committee wasestablished to inform state and federal government aboutadvancements.
Adoption
Adoption Act 2000 (NSW), focusing on adoption that is primarily aservice to the child. The NSW Law Reform Commission reviewed theAdoption of Children Act 1965 (NSW) in 1997. It proposed reformssuch as open adoption.
Ex-nuptial children
 The Children (Equality of Status) Act 1976 (NSW) gave ex-nuptialchildren 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 onethird of Australian responders stated that they believed that domesticviolence was a private matter.
Legal services available for victims such as the DomesticViolence Advocacy Service
Legal actions to protect victims – ADVO’s, interim orders,criminal assault charges
3R I Z W A N Z A F A R

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