1.

The Nature of Family Law

● The concept of family law

- Discuss the difficulty of defining ‘family’ and the changing concepts of family

FAMILY LAW
● It is largely Federal or Commonwealth law, and thus family law in each jurisdiction are
generally similar.
● Area of legislation most subject to reform and change in Australia.
● Reform occurs when new family structures become a social phenomenon and the law
needs to adapt to recognise the changes.
○ For example, gay and lesbian relationships ('same-sex' relationships) are now
legally recognised in many facets of family law due to societal changes; in
western society same sex relationships are normalised.
● However, in many nation states across the world, the definition of marriage and that of a
family is subject to debate and legal reform.
○ Such debate is present in Australia too with calls from lobby groups for gay and
lesbian marriages to be allowed, adoption laws to be simplified and surrogacy
laws to be clarified.
● In Australia the situation with respect to family law is complicated by the allocation of
powers over non-marriage relationships, children, succession, adoption, artificial birth
technologies (ABTs), surrogacy, guardianship, domestic violence and child protection to
the States and Territories.

FAMILY LAW - DEFINITION

● It is best explained as a body of laws that attempts to
○ resolve conflicts and encourage cooperation within families and between
family members. Family law primarily aims to
○ protect rights and ensure responsibilities regarding the raising of children and
the
○ allocations of assets when relationships break down. Over time, family law has
been reformed to focus more on
○ cooperation and compliance in a less adversarial environment.
The Definition of Family

● It is difficult to define family as social and community values change continuously

● The traditional family was the nuclear family (parents and children living together with a
shared goal of mutual support).
● However, the definition of 'family' is beginning to change in order to reflect changing
societal trends, which include alternative family arrangements

● There are many different types of family and their respective functions are many and
● Varied, hence there is no general consensus on the internal structure.

● Thus any definition of 'family' must recognise its inherent capacity for diversity.

● Family Law Act 1975 (Cth):

“The basic unit of society which is intended to provide care and protection to each
member of that unit, especially children”

● Australian Bureau of Statistics

“Two or more persons...who are related by blood, marriage (registered or de facto)
adoption, step or fostering and who are usually resident in the same household

Concept of Family Law:

ICCPR
Article 23:

Alternative Family Relationships

ATSI Customary Law Marriages

Full legal recognition would mean that ATSI traditional marriages would be moulded into
appropriate European notions of marriage and divorce
Parties ATSI traditional marriages can divorce and remarry simply and quickly in com