Family Law Notes

HELEN YOUSIF – FAMILY NOTES
1. The nature of family law.
The concept of family law:

• Family law is a wide-ranging area of law governing behaviour of the family, including rights and
responsibilities regarding children and the disposition of property when a marriage breaks down.
• Main function of family is the care and protection of its members.
• Law governs family relationships to ensure that people in them are financially secure and any
children of that relationship are cared for.
• More traditional and recognisable family relationship is one based on marriage. As society has
changed, the structure of families have too, reflecting diversity in domestic relationships.
• Different family arrangements in Aus society: Aboriginal and Torres Strait Islander marriages, de
facto relationships, same-sex relationships, single-parent families, blended families and extended
families.
• Family law continues to change to extend protection to all members of family relationships.
• Under s 51 (xxi and xxii) of the Aus Constitution, the federal gov has the power and authority to
make laws governing marriage and divorce.
• Marriage Act 1961 (Cth) established the legal requirements of a valid marriage and Family Law Act
1975 (Cth) sets out legal duties and obligations that a marriage creates.
• Principal aim of the Family Law Act was to reform the law governing the dissolution of a marriage.
• In the past, only state parliaments could pass legislation about de facto relationships. Now, most
state governments have referred their powers to the Cth with respect to parenting disputes and
property disputes, in the context of a marriage and de facto relationship.
• After passage of Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cth) questions regarding property division and de facto spousal maintenance are now
determined under Family Law Act 1975 (Cth).
• July 2010: de facto couples in SA will be able to apply to Family Court to determine property
settlements. WA has maintained a separate Family Court of WA which can deal with federal and
state family law issues.
• Family law focuses more on conciliation and on encouraging compliance than on the use of
sanctions or coercion to enforce compliance.
Legal Requirements of Marriage:

• Marriage is a legal institution, and individuals who intend to marry must consider the legal
consequences of this union.
The legal definition of marriage:

• Descriptions of marriage in Aus legislation are based on the definition in English case of Hyde v
Hyde and Woodmansee (1866). Lord Penzance state that marriage is the ‘voluntary union for life of
one man and one woman, to the exclusion of all others’ – a formal, monogamous and heterosexual
union. Elements can be explained as follows:
➔ Must be voluntarily entered into: marriage is not legally binding if one of the parties was
forced/tricked into the marriage.
➔ Marriage by definition is for life: a married couple have the right to divorce, thereby ending
marriage legally, before the death of either party.
➔ Specification of one man and one woman indicates that the parties must be of different sexes.
➔ ‘To the exclusion of all others’: marriage is the union of two people only – polygamous
marriages are not recognised in Aus and are void if entered into in Aus.
Requirements for a valid marriage:

- Gender:
• S 5(1) of the Marriage Amendment Act defines marriage as ‘the union of a man and a woman to
the exclusion of all others, voluntarily entered into for life’.
• S 88EA states that a same-sex marriage solemnised in a foreign country will not be recognised in
Australia.
- Marriageable Age:
• Person may marry at 18 (s 11).
• If either of the parties wanting to marry is between 16 and 18, they must apply to a
judge/magistrate for an order authorising the marriage (s 12). Such an order will only be granted in
circumstances that are sufficiently ‘exceptional and unusual’ E.g. couple’s parents’ consent and/or if
the couple are shown to be mature and financially independent ➔ pregnancy alone will not
guarantee an order.
• No person under 16 can marry.
- Prohibited Relationships:
• Person cannot marry anyone closely relation to them wither by ‘blood’ (consanguinity) or by
marriage (affinity) ➔ cannot marry his/her descendant, ancestor, brother or sister ➔ also applies to
half-siblings and adopted siblings, including adopted descendants and ancestors who are related to
the person by marriage.
• A person can marry her uncle or his aunt, his niece or her nephew, or a first cousin.
- Notice of Marriage:
• Couple intending to marry must give a completed Notice of Intended Marriage form to authorised
marriage celebrant who will conduct the ceremony, no earlier than 18 months before the marriage
and no later than one month and a day before it.
• Notice must be in writing and signed by both parties in presence of a witness. Approved witnesses
may include marriage celebrants, police officers, solicitors and doctors.
• Parties must provide proof of age – usually with their birth certificate.
• If either party has been married before, evidence of a dissolved marriage, by death of spouse or
divorce, must be provided.
Requirements for a valid marriage ceremony:

• Authorised marriage celebrant must perform ceremony and there must be two witnesses over 18.
• No formal requirements concerning the attire, structure of the ceremony or words of the
ceremony.
• If the ceremony satisfies the conditions in Parts IV and V of the Marriage Act, then it is valid.
• Celebrant issues marriage certificate after the ceremony is completed – is legal proof that the
ceremony took place according to law.
• Marriage celebrant usually provides three copies of the certificate; the celebrant, husband, wife
and two witnesses must sign all copies.
• One copy must be lodged at the state Registry of Births, Deaths and Marriages within 14 days of
the date of marriage.
Void Marriages:
• A marriage can be declared void or invalid if it fails to meet the definition of marriage, if e.g.:
➔ parties were of the same sex
➔ consent was not freely given by one of the parties
➔ one/both parties were married to someone else at the time of the marriage.
• A marriage may also become void if it fails to meet the criteria for a valid marriage, if e.g.:
➔ one/both parties were too young
➔ parties are too closely related, by blood or marriage
➔ marriage did not meet the requirements in the Marriage Act 1961 (Cth).
• If a marriage is invalid, the court can nullify it. This annulment means that the marriage, in the eyes
of the law, is deemed to have never taken place because it was illegal ➔ any children born during
the marriage are considered to be legitimate children of the marriage.
Legal Consequences and Responsibilities of Marriage:

• Marriage is a legally binding agreement between a man and woman which imposes mutual duties
and obligations. If the relationship breaks down, the law acts to ensure that the parties to the
marriage will fulfil their obligations and resolve issues in dispute.
• Law acts to protect the more vulnerable family members, notably by ensuring that both parents
provide for the welfare of their children.
- Mutual duties of husband and wife:

• The law tends to intervene only in cases where the marriage has broken down, where one/both
parties have not fulfilled their responsibilities, or when spousal rights have been infringed.
• The expectation is that both parties will support each other financially and emotionally and remain
faithful. However, no law exists to enforce these expectations.
• E.g. there is no law against adultery, nor is it now grounds for divorce. Nor is there an automatic
right to sexual relations with one’s spouse ➔ anyone who intentionally engages with in sex with a
person who has not consented has committed a crime.
- Maintenance:
• Is a financial payment made by one spouse to contribute to the care and welfare of the other
and/or children of the marriage.
• Under s 72 of the Family Law Act 1975 (Cth), a spouse may be obligated to provide maintenance to
other spouse if:
➔ the payee spouse is unable to support themselves; and
➔ the proposed payer spouse has capacity to pay.
• E.g. person has the care and control of a child of the marriage who is under 18 or the person is
unable to be employed because of age or physical/mental incapacity.
• Spousal maintenance is not automatic – court considers the question of ‘need’ when deciding
matters of maintenance. E.g. will consider if spouse seeking maintenance has income, property or
financial assets that could provide the means of financial independence and whether the spouse
from whom it is sought has the capacity to pay ➔ court must consider factors set out in s 75(2) and
79(4) with respect to both spouses.
• Is usually only sought after marriage has ended – usually granted for a limited time until the
spouse gains financial independence; both parties have a duty to maintain any child of marriage.
• Gov established Child Support Scheme under the Child Support (Registration and Collection) Act
1988 (Cth). This act also established the Child Support Agency (CSA) for the collection and
enforcement of court orders and child support agreements, and spousal maintenance.
• The Child Support (Assessment) Act 1989 (Cth), established set formulas in the assessment of child
support.
• Aim of the CSA is to ensure both parents fulfil their financial responsibility for their children ➔
primary focus is on needs and costs of child.
• In 2011, CSA calculated that for parents whose combined income was less than 31k, the costs
associated with the care of child amounted to 17 cents per dollar for one child. For two, assessment
was 24 cents per dollar and for three, 27 cents per dollar. As parents’ combined income increased,
amount payable also increases.
• In calculating amount that parents are capable of paying, CSA takes into account taxable income,
amount needed by parent and the parent’s percentage of care.
• Parent who is paying child support and has the regular care of the child will have child support
assessments reduced; reduction in payments recognises direct contributions that patents is making I
raising child.
- Property Rights:
• Largest asset acquired during marriage is the marital home; when two people buy a house, they
can choose to own equal shares in the property (as joint tenants), or some set proportion of shares
(tenancy in common).
• Joint tenancy is the more popular option; if one partner dies, the surviving spouse will inherit the
whole property.
• Tenancy in common may be preferred if the people do no =t want their shares to automatically go
to the other person; e.g. person wants to leave their share to a child of a previous relationship.
• Not all property acquired during marriage may be owned jointly – any property purchased by one
spouse during the marriage remains their property; any property owned by a person prior to
marriage still belongs to them after marriage.
• Marriage does not automatically change ownership of property; the two people concerned can
agree to alter their interests in their assets and liabilities If they do not agree, the Family Law Courts
can make orders – in determining these matters the courts use the following four step process:
1. What are the assets and liabilities of the parties are the date the matter is being determined?
2. What contributions have each of the parties made to the acquisition and maintenance of those
assets and liabilities?
3. What adjustment should be made in favour of either of the parties?
4. A final ‘justice and equity check’ to consider whether the outcome of the first three steps is ‘just
and equitable’ – fair to both parties.
- Contract and agency:

• Anyone can enter into a contract, acting for themselves alone – this is not altered by marriage.
• Although a person (principal) can appoint someone else (agent) to enter a contract on their behalf,
and the contract is then legally binding on the principal, a wife/husband is not automatically
authorised as an agent for their husband/wife in all contractual situations.
• One spouse cannot be held liable for any debt that is in the sole name of the other spouse – it is
only upon the breakdown of a marriage that the court may make orders altering property interests,
under the Family Law Act 1975 (Cth) (s 79).
• Spouses have the right to sue each other in contract or tort (s 119).
- Wills:
• Will: a document that states how a person intends to have their property distributed after death.
• Executor must obtain a grant of probate before the will of the deceased can be administered –
before monies and/or assets can be released.
• Person who dies without leaving a will is referred to as intestate, or ‘partially intestate’ if their will
does not effectively dispose of all of their property.
• State laws governing intestacy determine how the property is divided. Generally, with exception of
some monies deducted for costs of granting probate, the entire property will go to the surviving
spouse or the spouse and any children of the marriage – other family members can also inherit;
parents and siblings of the deceased may all inherit if no valid will exists.
• In NSW, property is distributed to certain family members according to a predetermined formula
under the Succession Act 2006 (NSW), as amended in 2009 by the Succession Amendment
(Intestacy) Act 2009 (NSW).
• While a person can leave their property to anyone they choose, s 57 of the Succession Act 2006
(NSW) allows certain family members to apply for a family provision order – a spouse, de-facto
spouse, child, grandchild, former spouse or another person close or dependant on the deceased can
apply to court for such order – the Act encourages disputing parties to enter into mediation rather
than context the will.
• Marriage automatically cancels any pre-existing will unless the person made the will in anticipation
of marriage (Succession Act 2006 (NSW) s 12). Divorce or annulment cancels any provision in an
existing will that favours the divorced spouse (Succession At 2006 (NSW) s 13).
Alternative Family Relationships

Aboriginal and Torres Strait Islander people’s customary law marriages:
• Relationships are bound by traditions and enforced through customary law.
• Children may be betrothed at an early age and parents/elders generally arrange marriages.
• Typically, ATSI marriages do not conform to requirements of a valid marriage under the Marriage
Act 1961 (Cth); these marriages are usually not legally recorded or registered with relevant
authorities ➔ the law does not formally recognise ATSI customary law marriages as having any legal
standing.
• 1986 – Australian Law Reform Commission tabled a report in parliament dealing with this; the part
focusing on marriage, children and property settlement recommended that traditional marriages of
Indigenous Australians should be recognised and given legal status in order to:
➔ ensure legitimacy of children of those relationships
➔ ensure any child will be given same protection as children of married couples under adoption
and welfare laws
➔ protect right of inheritance of surviving spouse if his/her partner dies intestate
➔ allow a surviving spouse to claim the same tax benefits as those that are available to de facto
or married couples.
• Federal gov. response to report in 1995 – most of the recommendations were appropriate for
implementation in state and territory law; the circumstances of indigenous children are specifically
provided in legislation such as the Family Law Act 1975 (Cth) – e.g. s 61F a court making decisions
about parental responsibility must take account of any kinship obligations and child-rearing practices
of child’s Indigenous culture.
• State parliaments – addressed some recommendations, including recognition of traditional
marriages for limited purposes.
• Children of any relationship, ATSI, ex-nuptial or nuptial, are protected under Family Law Act 1975
(Cth) and Status of Children Act 1996 (NSW).
• If ATSI customary marriage breaks down, Family Law Court has power to determine a parenting
order, including maintenance arrangements and deciding which parent will be given parental
responsibility of child.
• Orders are made on the basis of what court determines is in the ‘best interests’ of the child and of
the child’s need to maintain a connection with the ATSI lifestyle, culture and tradition.
Single-Parent Families:
• Increase in divorce, changes in social attitudes, improves welfare provisions and greater financial
independence of women have contributed to growth of single-parent families.

• ABS 2011 – 6.4 million Australian families – of these, 15% were single-parent families; majority of
these were single mother families – 1 in 5 children (19%) lives in a single-parent family.
• Many social issues confronting single parents – may face difficulties in accessing legal advice,
pursuing their rights in court and obtaining adequate legal protection; high cost of taking a matter to
court may discourage sing parents.
• Child Support Scheme introduced to enforce maintenance orders on parents who do not reside
with their dependent children; scheme ensures that parents fulfil their responsibility towards their
children.
Blended Families:
• Is created when a parent remarries; a parent and their children from a former marriage or
relationship live with another parent and children in similar circumstances; family can include
stepmother/stepfather and stepchildren.
• 1 out of 5 registered marriages in Aus in 2009 involved individuals who were marrying for the
second time; half of those who have been divorced remarry.
• Step-parents do not have the same legal responsibilities for a partner’s child; does not have
automatic right/duty to discipline their partner’s child or make day-to-day decisions concerning
health and welfare of child.
• Step-parent is not responsible for maintenance/support of a partner’s child; financial obligations
towards a child remain with the child’s parents; a court may make an order requiring step-parent to
pay financial support if they have a duty to maintain the child (Family Law Act 1975 (Cth) ss 66D,
66M, 66N). Can also be financially responsible if the family has existed for a long time and natural
parent is dead/cannot be found.
• Step-parents intending to adopt must apply to the Family Court (s 60G), upon approval, step-
parent must then apply to state Supreme Court for adoption order. For such order to be granted in
NSW, step-parent must have lived with the child for no less than two years, and the child must be at
least 5 (Adoption Act 2000 (NSW) s 30).
• If step-parent does adopt children, these children will have the same legal rights as children born
naturally into the parental relationship.
• Stepchildren do not have an automatic claim to the estate of step-parent if they die intestate;
children must prove they were financially dependent upon the step-parent – may apply for a family
provision order (Succession Act 2006 (NSW) s 58).
De-facto Relationships:
• Defined in s 4AA of Family Law Act 1975 (Cth) as one in which:
➔ partners are not legally married to each other
➔ partners are not related by family, and
➔ they have a relationship as a couple living together on a genuine domestic basis.
• ABS 2008 – over 70% of couples who marry have lives together prior to marriage.
• Includes same-sex couples.
Same-Sex Relationships
State Legislation:
• De Facto Relationships Act 1984 (NSW) was amended by Property (Relationships) Legislation
Amendment Act 1999 (NSW) and renamed Property (Relationships) Act 1984 (NSW).
• Property (Relationships) Act 1984 (NSW) recognises same-sex relationships as having same legal
standing as heterosexual de-facto relationships.
• Act provides protection to people in same-sex de-facto relationships in areas of property division,
inheritance and decision making in illness and after death.
Federal Legislation:
• Family Law Act 1975 (Cth), as amended by Family Law Amendment (De Facto Financial Matters and
other Measures) Act 2008 (Cth), governs property settlements and maintenance orders for
separating de-facto couple.
• Federal legislation applies to relationships which broke down on or after 1 march 2009 and those
who broke down earlier if they choose to be bound by federal law rather than state.
• Matters relating to children of de-facto relationships are heard in the Family Court.
• S 4AA (5) of Family Law Act 1975 (Cth) inserted in March 2010, states that a de facto relationship
can exist whether the persons are of same or different sexes. The Family Law Act now governs
property settlements between separating same-sex couples.
• S 18 of Evidence Act 1995 (Cth) and S 18 of NSW and Victorian Evidence Acts, a de facto partner in
a same-sex or opposite-sex relationship cannot be compelled to give evidence against their partner
in certain criminal proceedings ➔ not all states have such provisions in their Evidence Acts.
• The federal gov. amended 84 Commonwealth Acts in 2008 to remove differential treatment of
same-sex couples ➔ included laws about tax, superannuation, Medicare, aged are, veterans’
entitlement, worker’s compensation, employment entitlements, family law and child support.
• Regardless of amendments, no federal government has been in favour of amending the Marriage
Act 1961 (Cth) to allow same-sex marriage.
• A bill that would have done so, the Marriage Equality Amendment Bill 2009 was introduced by the
Greens but was defeated in Senate on Feb 2010. Since then, SA, WA and QLD have supported
legislation of same-sex marriage.
• Marriage remains within federal government’s jurisdiction and same-sex marriage will not become
legal until the federal government changes the current definition of marriage.
Polygamous Marriages:
• Relationship formed when an individual’s marries more than one person.
• While some cultures and religions permit this, they are illegal in Australia.
• Under S 6 of Family Law Act 1975 (Cth), a polygamous marriage entered into overseas is deemed
to be a marriage for the purpose of children’s matters, property settlements and other court
proceedings under Family Law Act ➔ if an illegal polygamous marriage breaks down, the parties may
seek orders for child/spousal maintenance, division of property, and parenting plans.
• A party can seek DV orders.
Legal Rights and Obligations of Parents and Children

• Part VII of the Family Law Act 1975 (Cth) governs proceedings in relation to children, particularly
parenting arrangements. Most of the laws relating to the care and protection of children are at
state/territory level.
• Children have the obligation to obey the law just as adults, through procedures for enforcing these
laws are different from the legal mechanisms that apply to adults.
Parental Care:
Rights derived from international law:
• Rights of children articulated and protected by the UN CROC, adopted by the UN nations in 1989
and signed and ratified by all but two members states as of March 20120.
• CROC declares persons under 18 must be protected from violence, discrimination, exploitation and
neglect.
• Australia ratified CROC in 1990 and is bound to its terms.

• International instruments may be used by courts in interpreting statutes and in judgements that
develop the common law. CROC was declared a ‘relevant international instrument’ under the
Australian Human Rights Commission Act 1986 (Cth), so the AHRC can refer to it when hearing
complaints of discrimination.
• No federal legislation has been passed implementing it in Australian domestic laws ➔ not binding
at the domestic level.
• Many CROC principles are embedded in state children protection legislation. Following Article 3 of
CROC, legislation in both federal and state jurisdictions states that children’s best interests should be
a primary consideration in decisions concerning children.
• Article 12: child has right to express opinions and be heard in proceedings affecting them, in a
manner consistent with the procedural rules of the jurisdiction, and the child’s views are to be given
due weight in accordance with their age and maturity ➔ reflected in legislation providing for
children’s participation in decision-making.
Parental responsibility under the Family Law Act 1975 (Cth):

• Part VII, S 60B of Family Law Act 1975 (Cth) lists ‘Best interests’, including:
➔ benefits of a meaningful involvement in their lives by both parents
➔ protection from physical/psychological harm from abuse, neglect or violence
➔ adequate and proper parenting to help children achieve full potential.
• S 60B also sets out principles underlying these objects:
➔ children have right to know and be cared for by both parents
➔ children have right to spent time and communicate regularly with parents and others significant
to their welfare
➔ parents share responsibilities for their children’s care, welfare and development
➔ parents should agree about parenting matters
➔ children have right to enjoy their culture, including the right to enjoy it with other people who
share it.
• Emphasis on responsibilities being shares by both parents was introduced by the Family Law
Reform Act 1995 (Cth), which made amendments to the Family Law Act 1975 (Cth) with respect to
children. Further amendments made by Family Law Amendment (Shared Parental Responsibility) Act
2006 (Cth) emphasised child’s right to meaningful family relationships and care, rather than parent’s
right to have the child live with them.
• Family Law Reform Act 1995 (Cth) introduced parenting plans, which are written agreements
voluntarily agreed to by parents. In contrast to court orders assigning custody, parents are
encouraged to create such plans themselves.
• Plans deal with any aspect of child’s welfare. If parents can’t agree, a parenting order will be
issued, which is a court-imposed decision. Parents may apply for parenting orders in DV cases.
• Law allows parents to raise children as they see fit, with general guidelines. Parental
responsibilities to a child are not specifically defined in legislation, but would include:
➔ providing adequate food/shelter
➔ providing access to education
➔ consenting to medical treatment.
Consequences of parental neglect under state laws:

• Parents who fail duty to their children may face any of a number of consequences, provided for in
state and territory legislation.
• Continued failure by a parent to provide basic things needed for proper development may result in
criminal prosecution for neglect of the child.
• Neglect is a criminal offence under the Children and Young Persons (Care and Protection) Act 1998
(NSW) (s 228) = fines of up to $22, 000 and the Crimes Act 1900 (NSW) (s 43A) = jail time up to 5
years.
• IF child abuse is suspected, Department of Community Services (DOCS) will send caseworker to talk
to parents and family members – some cases = DOCS applies to Children’s Court for an order.
• Orders can include foster care – temporary and involves a couple taking parental responsibility
caring for and controlling the child. Alternative to foster care is for children to live in group homes
under adult supervision.
• Under Children (Parental Responsibility) Act 1994 (NSW) parents may be liable in tort for any
damage/injury that their child causes and can be forced to pay the injured party compensation.
• Children and Young Persons (Care and Protection) Act 1998 (NSW) addresses family problems in
terms of child’s needs and care.
• Children (Protection and Parental Responsibility) Act 1997 and Children (Criminal Proceedings) Act
1987 (NSW) = prevention of juvenile crime and the criminal processes appropriate to persons under
18.
Education:
• Right to education is one of the objects of the Education Act 1900 (NSW) and is also found in UN
CROC.
• Education Act imposes on the state the duty to ensure every child receives adequate education.
• Parents cannot refuse their child education, but have the right to choose where they will be
educated; may choose a state school or an approved non-government or private school.
• Provisions for parent to educate child at home (if gov. consent is granted) or by distance
education, as long as child is educated according to the curricula provided by the state BOS.
• Failure to enrol child in school or give child access to education is a criminal offence.
• Changes to Education Act 1900 (NSW) in 2009 make it compulsory for a child to attend educational
facility from 6 until minimum leaving age, 17; children who have completed year 10 and are not 17
must be in some form of education training or employment until they turn 17.
Discipline:
• Parents have right to discipline their child by using physical force to correct their child’s behaviour,
but the force must be ‘reasonable, having regard to the age, health, maturity or other characteristics
of the child, and the nature of the alleged behaviour or other circumstances’ (Crimes Act 1900
(NSW) s 61AA).
• Defence of ‘lawful correction’ in criminal proceedings against a parent/other person for assault is
not available if the physical force was not reasonable.
• What is considered reasonable can vary from culture to culture, but punishments that will not be
considered reasonable by a court in Australia include striking the head/neck of a child, causing pain
lasting for more than a short period shaking a young child and striking a child with a closed fist.
Medical Treatment:
• Parents responsible for appropriate medical and dental care availability.
• Consent must be given before a doctor can carry out any treatment ➔ consent implies
understanding of what is involved and acceptance of the risks.
• Children under 14 = consent of parent/guardian is required; parents have right to authorise any
such treatment they consider in child’s best interest.
• Between 14 and 16 = child’s consent or parent’s consent is required.
• Medical/dental treatment for those 16-17 requires their consent – Requirements are contained in
the Minors (Property and Contracts) Act 1970 (NSW) (s 49).
• If parents refuse medical/dental treatment, a court can authorise the treatment.
• Over 16 and intellectually disabled, the Guardianship Act 1987 (NSW) specifies who can give
consent; usually, this will be a ‘person responsible’, such as a parent.
Autonomy of Children:
• Children are regarded as not yet having developed cognitive abilities and capacity to understand
the consequences of their actions and are considered unable to make fully informed decisions.
• Law makes it illegal for children to engage in certain activities to protect them.
• Child’s ability to make their own decisions increases with age, and this is reflected in the law
regarding children’s autonomy and rights.
• Some laws distinguish between children and young persons, e.g. Children and Young Persons (Care
and Protection) Act 1987 (NSW) defines child as a person under 16 and a young person as one who is
aged 16 or 17.
Ex-nuptial Children:
• In the past, ex-nuptial children had no legal status and thus no legal rights.
• Legitimacy = important ➔ provided child with certain rights, such as inheritance and maintenance.
• Legitimacy automatically existed for a child if it was: born during marriage, ex-nuptial but the
parents of the child later married and if the child was adopted.
• Children (Equality of Status) Act 1976 (NSW) gave ex-nuptial children same rights as those born to
parents who are married. All children have the right to be cared for by their parents.
• Act allows presumption that those who say they are a child’s parents are the child’s parents
(presumption of parentage); must be evidenced to court to disprove.
• Parentage can be established through DNA analysis of blood sample, or through parent’s voluntary
recognition of the child as his/hers.
• If person making a will wants to exclude any of their children, this must be explicitly stated.
• Family Provision Act 1982 (NSW) removed the concept of ‘illegitimacy’ and the Succession Act
2006 (NSW) permits any child to apply for a family provision order, whether nuptial or ex-nuptial.
Adoption:
• Process of transferring parental rights and responsibilities from the biological parents to the
adoptive parents.
• Aim of adoption law = ensure that the best and most appropriate parents are found for the child.
• Needs of the adults are secondary to the needs of the child; adoption re-creates the legal
relationship between the child and their parents.
Legal requirements and process:

• Is a state responsibility; NSW ➔ adoption governed by the Adoption Act 2000 (NSW).
• If birth parents are married/ in a de facto relationship, both must give consent to give up the child
for adoption; for single mothers, only the mother need five consent; father must be notified prior to
adoption and given 14 days to respond.
• Children aged over 12 must consent to their adoption.
• Birth mother cannot consent to adoption within three days on the child’s birth. Once the birth
parent/s have given consent, there is a 30 day cooling-off period where they can change their minds.
• If child’s parents cannot be found or are incapable or giving informed consent, the court can give
consent.
• Relinquishing parent can nominate relative to adopt their child but all adoption criteria must be
met and the adoption can only proceed if court permits it. Parents who give up their child can
nominate a religious upbringing for their child.
• Because adoption laws are concerned with the rights of the child, the law has established strict
guidelines as to who can adopt:
➔ married couples and those in long-term, stable de facto relationships
➔ individuals not in a relationship; apply as single applicants
➔ must be over 21 but under 51
➔ prospective male parent must be at least 18 year older than the child and female at least 16
years.
➔ Applicant must be a person of good repute, be fit and proper parent and able to fulfil
responsibilities of a good and caring parent.
• Child’s culture, language and religion will be taken into account when determining an adoption
order as well as the principle that the child’s given name, identity, language and cultural/religious
ties should be preserved.
• Prospective parents who meet the criteria are then put on a waiting list; decision to who will adopt
is based on what is in the best interests of child and whether the child’s overall welfare will improve
by being adopted by the applicant/s.
• Once birth parents agree to adoption, court will make an adoption order, following official
notification from relevant agency/department; order creates certain legal changes.
• Registrar of Births, Deaths and Marriages will issue new birth certificate in the child’s adopted
name with the family details of the adoptive family.
• Birth parents no longer have any rights/obligations concerning the child; adopting parents have
legal responsibility for the care and wellbeing of the child.
• Adopted child’s rights or inheritance to the estate of his/her biological parents are removed and
the adopted child will have automatic right to inherit from the estate or adoptive parents.
Overseas Adoption:
• Inter-country adoptions governed by the Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption, and by bilateral agreements between Aus and
countries that have not ratified the convention.
• NSW – prospective parents must apply though DOCS to arrange inter-country adoption. They will
be offered a child from the other country and if parents accept the offer, they may lodge adoption
visa application, which is then forwarded to the appropriate overseas welfare agency.
• The child is then subject to standard migration medical checks. If child satisfies health
requirements, adoption will be finalised in the child’s country or origin or the overseas welfare
agency will authorise the child to leave so the adoption can take place in Australia.
• Child will then be granted permanent residence in Australia.
•Privately arranged adoption is possible if adoptive parents can prove they have been living in the
overseas country for more than 12 month prior to application, and if authorities in overseas country
have approved the departure of the child to Australia.
• Child must meet migration standards – the Australian Department of Immigration and Citizenship
can refuse to grant an entry visa for the child.
Access to Information:
• Previously, all personal information of both the parent and child, could only be released by the
Reunion and Information Register and only if both parties placed their information on the Register.
• Register, maintained by Community Services in NSW, is still in operation but Community Services
does not help parties search for each other.
• Adoption Amendment Act 2008 (NSW) gives relinquishing parents and adopted children the right
to request personal identifying information from Community Services which they can use to contact
one another and other family members.
• Adopted children may apply to Adoption Information Unit to obtain a ‘supply authority’, which
contains identifying information of birth parents. This document allows them to obtain information
from adoption records.
• Parents who have given up their child can also ask for a supply authority allowing them to obtain a
copy of their child’s amended birth certificate, which now contains information about the adoptive
family.
• Parents and children who do not want to be contacted by the other can lodge a ‘contact veto’.
Alternatively, contact details of adopted children and relinquishing parents can be placed on the
Advance Notice Register, which notifies them if any application for information is made.
• Even though relinquishing parents or adopted child may not wish to be contacted, their
information will be released once party seeking the information has signed an undertaking not to
make contact.
• Party who breaches a contact veto may be subject to a fine and/or imprisonment.
• Both relinquishing parents and adopted children who want to make contact with one another can
enter their names in the Reunion and Information Register.
2. Responses to Problems in Family Relationships.
Divorce:
• Is the legal dissolution of marriage. Under s 48 of Family Law Act 1975 (Cth), only ground for
divorce is the irretrievable breakdown of the marriage ➔ no chance that the parties wish to remain
in a relationship.
• Before 1974 married couples wanting divorce had to apply under Matrimonial Causes Act 1959
(Cth) on the ground of ‘fault’; that one or both spouses admitted to acting in a way that undermined
their marriage ➔ Grounds of divorce under act: adultery, cruelty (violence), insanity and desertion.
• Family Law Act removed all other grounds for divorce and established Family Court ➔ hears all
matters related to marriage and divorce; having one ground for divorce removes need to find fault.
• To prove the relationship has been irretrievably broken down, parties must have been living
separately and apart for 12 months ➔ divorced = free to marry another person.
• 12-month separation begins when one party tells the other that they intend to leave the marriage
➔ does not matter only one party wishes to end relationship; law will not force an individual to stay
in a relationship they do not want to continue.
• Parties can be living separately if they are still sharing the same house ➔ parties are considered to
be living separately and apart if they show they are leading separate lives, e.g. sleeping separately.
• Although Act removed fault and established one ground for divorce, it did not intent to encourage
divorce was ➔ designed to encourage parties to seek amicable resolution to their problems.
• Act allows one period of reconciliation of up to 3 months during the period of separation, under s
50 (kiss and make up clause) ➔ don’t succeed in reviving marriage, the separation period resumes
with the total time before and after reconciliation period counting towards the 12 months.
• Couple seeking to dissolve marriage have been married less than 2 years ➔ must attend family
counselling before they can divorce ➔ court feels there is a chance parties may be reconciled, court
can order marriage counselling.
Legal Consequences of Separation

Children:
• If couple has children, no application for divorce will be approved until court is satisfied that there
are proper arrangements for the care of the children.
• Once this has occurred, a decree nisi will be ordered by court, which begins the process of divorce
➔ one month later, decree nisi becomes decree absolute = marriage is legally dissolved.
• Focus of the law is not on parental rights but on parental responsibility ➔ parents responsible for
long-term care of children and presumption that it is in the best interests of the children for both
parents to share responsibility; irrespective of where children reside, both parents responsible.
• Parental responsibility will only cease with a court order, adoption of children, children’s 18 th
birthday or the children’s marriage.
• Parents encouraged to make and voluntarily agree to their own agreements in relation to care and
responsibility of their children, rather than asking court to do so.
• Under part VII of the Family Law Act, disputes concerning children must be decided in the best
interests of the child ➔ court determines best interest by reference to s 60CC.
• Two primary considerations include child’s right to maintain a meaningful relationship with both
parents, and need to protect child from harm; additional considerations = factors that may modify
ability of parents to share the parenting of the child equally.
• Presumption that shared parental responsibility is in the best interests of child will not apply if
there are reasonable grounds to believe that a parent has engaged in abuse of the child, or of any
other child or in family violence (s 61DA).
• 2006 amendments to act – Family Law Amendment (Shared Parental Responsibility) 2006 (Cth)
criticised for not adequately dealing with family violence, exposing children who have experienced
abuse with further possible abuse. Another criticism = child’s views aren’t given enough weight.
• Complaints that Act does not make clear the distinction between shared parental responsibility
and shared care.
• 2011 – federal gov. passed the Family Law Amendment (Family Violence and Other Measures) Act
2011 (Cth), recognising need to protect children from harm and aims to improve family law system’s
response to family violence and abuse ➔ amendments focus on giving courts better information
about existence/risk of family violence = help courts maximise child’s safety in future.
• Separating parents = attend family dispute resolution before they can apply to court for parenting
orders ➔ any agreement reaches at this stage can be drafted into consent orders or parenting plan.
• Parenting plans must consider practicality of children having equal time with both parents, contact
with family members and day-to-day care of children and ensure children maintain cultural links.
• Parenting plans are voluntary agreements, most parents comply with them. If parents cannot
reach agreement, may apply to Family Law Courts to make parenting orders.
Property:
• Includes homes, bank accounts, companies and partnerships, shares, superannuation and
household goods.
• If separating couple reach agreements about property and want to formalise it and make it binding
= can apply to Family Court for consent orders or enter into a financial agreement.
• If division of property is fair and equal, court will make the consent orders legally binding.
• Couple in dispute regarding property allocation can choose to have matter heard in the Family
Court.
• Under ss 75 and 79 of Family Law Act, court will consider a number of factors which can include:
➔ financial and non-financial contribution to property by both parties

➔ effect of the subsequent property allocation order on the earning capacity of each party
➔ eligibility of part to a pension, allowance or benefit
➔ age of both parties and the income, property and financial resources of both parties.
• Court can and usually will order disputing couple to attend conference in an attempt to have them
determine a fair and equitable allocation of property and agreeable settlement ➔ If unsuccessful,
Family Court can make an order about allocation of matrimonial property = all property purchased
or acquired during marriage; superannuation regarded as an asset, court taking in financial and non-
financial contribution made by both parties to superannuation entitlements.
• Since 2002, separating couples able to claim superannuation that each spouse has accumulated
during marriage as part of matrimonial property = court aims to be fair to achieve equitable effect.
Financial Agreements:
• Can be made between couple before their marriage, during marriage or at the end of marriage.
• They arose out of individual’s desire to protect their property rights; can include guidelines for the
division or property, debt and other financial concerns if relationship ends.
• Such agreements tend to reduce combative nature of divorce and separation by removing money
and property, the 2 main sources of hostility between parties.
• May prescribe what property is and isn’t to be included in settlement, settle questions relating to
how property is to be divided after marriage has ended or establish who owns what property.
• Can also include provisions as to whether, how and by whom spousal maintenance is to be paid.
• In the past, agreements between spouses weren’t binding, and were just one of the matters that a
court would consider when determining property settlement ➔ amendments to Family Law Act in
2000 allow Family Court to recognise them as binding.
• Party can apply to Family Court to have agreement set aside = costly and time-consuming process.
• Grounds they can be set aside are set out in ss 90K (marriages) and 90UM (de facto) of the Act.
• Property settlements for separating de facto couples now governed by Family Law Act.
• De facto couples can also have binding agreements for property settlements if they separate can
be made before, during or after breakdown of a relationship (ss 90UB, 90UC and 90UD of Act).
Legal Responses to Domestic Violence:

• ALRC states that assault occurring in home is not a private matter but one that is of concern for the
community as a whole,
• S 11 of Crimes (Domestic and Personal Violence) Act 2007 (NSW), which came into force in 2011,
states DV is personal violence committed against someone with whom offender has or has had a
‘domestic relationship’ – a marriage, de facto relationship or another close personal relationship.
• Act does not stipulate time limit for domestic relationships ➔ relationship need not be or have
been sexual in nature ➔ includes boyfriends, girlfriends and those in same-sex relationships.
• DV includes physical violence, sexual
assault, economic abuse, emotional or
psychological abuse, stalking, damage to
property and behaviour that causes a child
to be exposed to the effects of DV ➔
includes ‘threatening behaviour’ that
coerces, control or causes victim to be
‘fearful’.
• NSW Parliament stated that DV in all its
forms is unacceptable ➔ legislation
recognises DV is predominantly perpetuated by men against women and children, occurring in all
sectors of the community.
Violence between spouses:

• Males tend to commit DV more than women and majority of victims are women and children,
however men are also victims.
• Number of victims, male and female, has increased in the past decade ➔ NSW Bureau of Crime
Statistics and Research, nearly 40% of all assaults in 20120 were DV related; 2011 – only 36% of all
assaults were DV related.
• Women are more likely to experience violence in their home than by a stranger or in public.
• DV assaults involving female victim and male partner accounted for 48.3% of all domestic assaults.
• Apply to the Local Court for Apprehended Domestic Violence Order (ADVO).
• ADVOs work towards protecting victims, separated or living together. Subside domestic violence
cases = considers all parties involved.
• Sharon Michelutti (2016), mother of 5 been the subject of many apprehended domestic violence
orders dating back to the 1990s, including one that was taken out two weeks before fiancé stabbed
her to death in their home in Sydney’s south-west.
• Of all ADVOs which were breached, 34% were breached within one month of being granted, 23%
within 1-3 months and 18% within 3-6 months. Male, Indigenous and younger offenders breached
their final order sooner than other defendants. (BOSCAR, 2016). =
• Fixed nature: If a victim of domestic violence were to leave NSW, the ADVO would be considered
as admissible. 22,000 ADVOs being issued annually. Too easy to obtain = women have falsely
claimed to be victims of DV.
• USYD social work academic, Dr Lesly Laing, reported women’s complaints: police did not act on
breaches, did not treat the breach as serious, and were only interested in breaches that involved
physical violence; when the police did charge the perpetrator with a breach, with very small
penalties being imposed, when the defendant was found guilty.
• Family Law Act 1975 (Cth) and Property (Relationships) Act 1984 (NSW) victims can seek
injunctions and family violence and parenting orders. Injunction: court order which either prevents
someone from doing something or orders someone to do something. A Family Court Injunction can
be obtained through the Family Court.
• Injunctions issued by Family Court restrict a wide range of behaviour in regards to offenders, they
are more difficult than ADVOs to enforce and are not immediately available to victims.
• NSW Bureau of Crime Statistics director Don Weatherburn: “There are breaches but what would
the world look like if we don’t have these orders. The answer is a lot worse.”
• DV offences made illegal under the Crimes Act 1900 (NSW), stated under Crimes (Domestic and
Personal Violence) Act 2007 (NSW). DV offences are assault, malicious damage, stalking and
intimidation.
• If person breaches ADVO = may be charged with a criminal offence; evidence to support a
conviction for this offence, allowing police arrest and charge.
• Criminal charges acknowledge assailant has committed offence - victim lay charges.
• Criminal charges only focus on one incident, not account for a history of violence. Standard of
proof is ‘beyond reasonable’ doubt; police and victims not wanting criminal charges.
• Police: Crimes (Domestic Violence) Amendment Act 1982 (NSW) introduced establishment of
AVOs; extended police powers in dealing with DV; arrest of offenders – Further amended in 1993;
allow police to give interim ADVOs over the phone, granted by magistrate.
• NSW Police adopted ‘pro-arrest’ policy = officers encouraged to arrest offenders.
• Police suspect ‘domestic’ assault = legally obliged to seek ADVO. Extent of powers outlined in
Crimes (Domestic Violence) Amendment Act 1982 (NSW) and Crimes (Domestic Violence)
Amendment Act 1993 (NSW).
Violence Involving Children

Violence against Children:
• Article 19 UN CROC; no child should be subjected to violence, responsibility of state to protect
them from all forms of physical or mental violence, neglect or negligent treatment, maltreatment or
exploitation. Article 3 – best interests of child.
• Children can be included on adult’s ADVO application, or a separate application; police officer can
apply for ADVO/children under 16 and those over 16 apply for their own.
• Court may grant ADVO for protection of a child even if application was not made by police officer
(Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 38(5)).
• Professionals required to report to Community Services if they suspect that a child is at risk of
harm (Children and Young Persons (Care and Protection) Act (NSW)). Community Services to
investigate the home.
Violence by Children:
• All decisions relating to children should be in the best interests of the child.
• Young Offenders Act 1997 (NSW) provides alternate options, e.g. warnings, cautions.
• Long-term goal is to prevent child from becoming an adult offender.
Non-legal Responses to Domestic Violence:

• Lobby groups: highly effective: pressure gov to reform law.
• DV committee coalition formed in 2006 by Joy Goodsell and Betty Green in response to women’s
deaths in NSW = engage in advocacy, participate at varying levels.
• Engages in activism to raise profile of women’s policy and place domestic violence on public and
political agenda.
• Successes: establishing of NSW DV Death Review Team in 2010 under the Coroners Act 2009
(NSW) to review DV related deaths. DVDRT aims to develop and promote DV intervention and
prevention strategies.
• Media: Publicity awarded to DV has potential to urge governments to review/alter the law.
• SMH article: photos/stories of homicide victims, emotional headlines like “shameful secret of our
family murder epidemic” and lines such as ‘Despite all her cries for help, Evelina was left to die’.
Family Law Courts embrace media technologies. Lack of DV cases – only when death/homicide; lack
of confidentiality.
• Rosy Batty established Luke Batty foundation in 2014, following the murder of Luke Batty.
• 12 February 2014: Greg Anderson murdered Luke, 11 in Melbourne suburb of Tyabb; isolated Luke
in a cricket net, struck his son on the head and stabbed him to death.
• 2013: intervention order naming Rosy and Luke protected persons = ineffective. Murder gained
media attention and provided support through the foundation.
• Offers victims resources to access if required.
• Rosy Batty: “I have a voice now because something so bad happened to me that nobody would
want to be in my place.” = gruesome reality of DV and provided support.
Effectiveness of the law in protecting victims of domestic violence:

• Battered wife syndrome: originally only applied to women in heterosexual marriages has been
extended to include battered partners in de facto relationships, including same-sex.
• Automatic presumption in favour of bail was removed after several women had been stalked and
killed by their partners, who had been released on bail.

• Firearms Act 1996 (NSW) offers additional protection of prohibiting the issue of, or revoking gun
license/permit if the individual has been subject to an ADVO.
• Several states introduced mandatory counselling for perpetrators of DV ➔ NSW does not have
such a program ➔ little evidence supporting effectiveness of such programs in reducing DV.
• Allegations made that ADVOS are too easy to obtain and women have falsely claimed to be victims
of DV when contesting parenting orders ➔ claims of DV do not necessarily affect family law
proceedings ➔ little evidence to support such allegations.
• 2010: Cth gov. launched Time for Action: The National Council’s Plan to Reduce Violence against
Women and their Children 2009-21.
• 2010: federal gov. flagged changes to the Family Law Act which would redefine domestic violence
and place more weight on the safety of a child ➔ may undermine the idea of shared parental
responsibility.
Methods of Resolving Disputes

Family Dispute Resolution:
• s 10F Family Law Act 1975 (Cth): independent practitioner helps people affected by separation or
divorce resolve disputes.
• History of family violence = family dispute resolution not appropriate.
• Types of dispute resolution:
➔ reconciliation counselling for separate couples
➔ post-separation parenting programs; form of family counselling, group lectures, etc.
➔ mediation: separating couples who made application to family court – neutral impartial third
party to identify issues.
• Less costly than court proceedings in time and money and less stressful for parties involved.
• Individual counselling for children whose parents are separating discuss child’s needs, issues, fears
and concerns; counsellor creates a Family Report (summary of info), given to the presiding judge –
process ensures that needs and welfare of child are identified and met by parenting order issued by
Family Court.
• Parties fail to reach agreement/ issues relating to family violence = matter heard by a court.
Adjudication:
• Determination of matter by a court judgement.
• Once court has made decision, order is imposed; breach = court action, financial penalties or other
criminal sanctions.
• NSW legal aid and commission – mediation services for family disputes. – Court provision of info;
family court review internal process = less complex.
Family Court:
• Reconciliation & encouraging compliance than arbitration & use of sanctions/coercion.
• Hears matters relating to separation, divorce and other marriage disputes – jurisdiction limited to
areas controlled by Family Law Act 1975 (Cth).
Federal Magistrates Court est. 1999

• Can hear matters relating to divorce, division of property, maintenance and children for married
and de facto couples.
• Family court of Aus can hear complex matters like parenting cases and complex financial matters.
R v Mulvihill [2014]: Former rugby star, Paul Darren Mulvihill = 29 years imprisonment, pleading
guilty to stabbing with intention to kill former girlfriend, Rachelle Yeo. Ending their relationship,
discovered new residential area and visited July 16, 2012; argument was sparked, Yeo reached for a
stainless steel knife. In act of “self-defence”, Mulvihill stabbed Yeo. Yeo = stab wounds to neck and
chest; died at scene. Granted bail 3 times despite breaching twice; despite new evidence that
undermined claim of self-defence, ruling prevailed. Media kept public updated about the case.
• SBS article: Malcolm Turnbull described Australia's DV rates a "national shame". Mr Turnbull
quoted that last year more than 100 women were killed by their partner or ex-partner, and 132,500
were subjected to violence by the man who was supposed to love them. "It is a disgrace. We should
have zero tolerance for this.”
The role of NGOs:

• Many of the better-known organisations are operated by religious groups, e.g. Salvation Army or
by churches, e.g. Family and Relationship Services Australia and Anglicare.
• NGOs not associated with religious groups and that provide similar services include Relationships
Australia and the Smith Family ➔ services provided: mentoring, support for new parents,
counselling and relationship advice, assistance with managing conflict and dealing with violence in
the family, emotional support to children of separating parents, mediation, and advice on creating
parenting plans.
• Many NGOs are dependent on donations and goodwill of volunteers, and/or have to apply for
government funding.
The role of the media:

• Media has changed dramatically within the last few years and will continue to change with
development of new communication technologies.
• Family Law Courts have embraced new media technologies, placing self-help guides, brochures and
forms, and links to other sites, on their own websites and establishing the National Enquiry Centre to
answer telephone and email enquiries about general court procedures and individual cases, to
provide referrals to legal advice and other services, and to provide forms and publications.
• Courts have effectively used new media tech to provide better information about rights and
obligations under family law as well as additional support services.
• Courts keenly aware of the need to protect privacy of individuals affected by breakdown of a
relationship ➔ restrict how media publish court proceedings = balancing provision of information
and legal direction with the protection of personal information about separating families.
Contemporary Issues Concerning Family Law
Issue 1: Recognition of same-sex relationships:

• The Marriage Act 1961 (Cth) and other statutes give heterosexual couples some rights/obligations
which same-sex couples are excluded, and although the Sex Discrimination Act 1984 (Cth) and state
anti-discrimination Acts protect heterosexual de factos against discrimination on the basis of marital
status, same-sex couples do not enjoy same protection; their legal marital status remains ‘single’.
• In 2001: Netherlands was the first country to recognise same-sex relationships; since then,
Norway, Belgium, Spain, Canada and Portugal have enacted legislation recognising same-sex
relationships.
• For some same-sex couples, desire for legal recognition of their relationship does not mean they
want the right to be married; removal of institutionalised discrimination and the provision of
adequate legal protections may be more concerning.
• Marriage Amendment Act 2004 (Cth) amended the definition by adding the words ‘union of a man
and a woman’ to clarify that parties to a marriage must be one man and one woman; same-sex
marriage is automatically void in Australia.
Legal and Non-Legal Responses

Legal Responses:
• Law has recognised relationships that exist outside traditional concept of marriage; covered by De
Facto Relationships Act 1984 (NSW) ➔ amended and renamed the Property (Relationships) Act 1984
(NSW).
• Property (Relationships) Act 1984 (NSW) recognises same-sex relationships as having same legal
standing as heterosexual de facto relationships, and provides the same protection.
• 2000-2009: Australian states and territories introduced law reforms recognising same-sex
relationships in specific areas.
• Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), property
and maintenance matters for separating same-sex couples are determined by Family Court or
Federal Magistrate’s Court.
• Act extends definition of ‘de facto’ to 2 people who aren’t married or related by blood who live
together ‘on a genuine basis’; doesn’t distinguish between heterosexual and same-sex relationships.
• Matters relating to children, including children of same-sex couples, are heard in the Family Court.
• Same-sex still not recognised as having same status as a ‘marriage’ under federal laws.
• 2008: After ALRC report Same-Sex: Same Entitlements, Aus gov introduced reforms to remove
discrimination and give same-sex couples same entitlements as heterosexual de facto couples.
• Under Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform)
Act 2008 (Cth), federal law reforms have removed discrimination from a range of laws and programs
by amending/extending definitions to include same-sex relationships.
• Health Insurance Act 1973 (Cth) now allows a same-sex couple and their children to register as a
family for Medicare and receive same entitlements as a heterosexual couples and their children.
• Other areas amended: tax, social security, family law, superannuation, workers’ compensation and
child support.
• Major change in state laws concern recognition of same-sex partner as ‘parent’ of their partner’s
child ➔ Male partners in heterosexual marriage/de facto relationship have parental rights and
responsibilities towards aa child conceived during the relationship; a partner of the same sex had no
legal standing and couldn’t make decisions about day-to-day care unless Family Court orders so.
• Children conceived through donor insemination/assisted reproduction = only mother listed on
birth certificate.
• Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) = equal parenting rights
for female partners of mothers; both listed on child’s birth certificate = gives children right to
inheritance from both parents and protects both mothers involving children if relationship ends.
• Sept 2010: NSW Parliament passed law allowing same-sex couples to adopt.
Non-Legal Responses:
• Varied, ranging from complete support and criticism of state and federal governments for not
going far enough to those who are highly critical of added protection of rights of same-sex couples.
• AHRC held several inquiries into areas of discrimination and HR violations; makes
recommendations to gov regarding removal of institutionalised discrimination and legislation not
complying with UN human rights treaties.
• 2007: AHRC report, Same Sex: Same Entitlements recommended amending federal laws that
discriminated against same-sex couples and their children in financial and work-related entitlements
and benefits.
• Australian Marriage Equality argues that the legally recognised institution of marriage shouldn’t
exclude these couples; sends message that their relationships are of a lesser standard and they’re of
second class citizens. Justice = changing the law to make marriage available to all Australians who
choose it, not only permitting same-sex couples to form civil unions.
• Gay and Lesbian Rights Lobby = wide-ranging agenda including advocacy, lobbying government and
the media to address discrimination, hosting consultations, educating the gay and lesbian
community on their rights and providing referrals to legal and welfare services.
• Some sections of media are critical of changes and resort to ridicule. E.g. radio hosts in 2003 made
comments ‘capable of inciting severe ridicule of homosexual men’, breaching vilification provisions
of Anti-Discrimination Act 1977 (NSW). In 2008, hosts ‘appeal was settled, apologising on air and in
the Sydney Morning Herald.
• Most lobby groups that oppose equal rights for homosexual couples have a religious affiliation, e.g.
Australian Christian Lobby. Religious groups continue to be able to discriminate on the basis of se,
sexuality, race, disability and age, allowing organisations to withhold services to individuals.
Responsiveness of the Legal System:

• To change the law, courts have to be willing to act, several politicians must support legislative
reform and there must be a societal change; law reform bodies investigate and recommend changes.
• Anti-Discrimination Board of NSW is part of NSW Department of Attorney General and Justice,
administering anti-discrimination laws of NSW; handles complaints of discrimination and informs
public how to prevent and deal with discrimination through consultations, education programs,
seminars, talks, community functions and publications.
• Board’s third function = advise the gov and make recommendations. It has made several
submissions to state and federal gov concerning changes to current legislation to give same-sex
couples the same legal rights and protections enjoyed by married couples.
• Arguments against recognition of same-sex relationships exert and influence in the public sphere.
• Legislative changes to de facto entitlements by federal gov in 2008 sat alongside a refusal to
amend the Marriage Act to permit same-sex marriage.
Issue 2: The Changing Nature of Parental Responsibility:

• In the past, parents sought ‘custody and control’ over their children, enforcing their parental
rights; now, the courts are less concerned with parental rights and more concerned with parental
responsibility; focusing on ensuring parents fulfil their legal obligations towards their children.
• Parents have joint responsibility for the child; applies equally to child born within marriage and to
a child born outside of a marriage.
• This responsibility is not altered if parents separate, marry or remarry, unless there is a court order
otherwise.
• Reforms to family law have tended to focus on maintaining positive and supportive family
structures even when parents separate.
Legal and Non-Legal Responses

• Perception that ideal of shared parental responsibility is not reflected in reality = instances where
the child will spend a disproportionate amount of their time with one parent because of financial or
geographic constraints or issues like parent’s alcohol abuse or poor health.
• More than 60% of parenting plans and orders, children spend more than half their time with their
mother; main reason why children spend less than 30% of their time with a male parent due to
abuse of family violence.
Legal Responses:
• Reforms introduced by Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
included primary and additional considerations to be taken into account by a court in respect to the
‘best interests of the child’.
• Primary considerations include the benefit of the child having a positive and meaningful
relationship with both parents and the need to protect the child from abuse and family violence.
• Additional considerations include the child’s wishes, the nature of the relationship between the
child and the parent, the financial ability of the parent to care for the child and the ability of the
parent to provide for the intellectual and emotional needs of the child.
• Another change = the child spending ‘substantial and significant time’ with each parent, where
equal time is not considered to be in the best interests of the child. Some argue this provision hasn’t
been sufficient to address parents’ misperception that both are ‘entitled to’ time with the chid and
that they should both have ‘substantial and significant time’.
• When more time with children is coupled with reduced child support payments, motivations for
seeking shared care become less clear and courts may have a harder time reconciling the aim of
facilitating the child’s relationship with both parents with the facts of the family situation.
• A parent pressured into allowing the other parent more time with the child may be discouraged
from raising concerns about family violence and may think the court will order shared care anyway.
• Federal gov Time for Action: The National Council’s Plan to Reduce Violence against Women and
Their Children 2009-21 identified issues which undermined the effectiveness of the present domestic
violence and child protection legislative framework.
• In response, Family Law Amendment (Family Violence and Other Measures) Act 2011 (Cth) was
passed. Under the act, courts must take into consideration evidence made in relevant DV order
proceedings in determining parenting matters.
• Community and church-based institutions, as well as nation-wide organisations such as
Relationships Australia, can help separating parents negotiate their own parenting agreements and
can provide a range of information and referrals.
• Counselling, education and skills training not only help parents develop better parenting skills, but
may also assist in recognising gender issues that affect relationships with children in negative ways.
• Resolving problematic issues about shared parenting and shared responsibility requires changes in
societal attitudes, and these interact with legislative enactments and amendments.
• Successful shared care was occurring before 2006 amendments, where the parents involved were
willing to cooperate to achieve the best circumstances for their children.
• Non legal mechanisms such as women’s resource centres, the National Council of Women of
Australia and parenting networks for mothers, fathers or both may be of value in furthering this aim.
• E.g. DadsLink – network that focuses on fathers and their relationships with their children, is part
of the YMCA’s ParentLink program for single parents.

• The obligation to take responsibility for the care and financial support of a child is now considered
one that should be met by both parents.
• Views about men and women have expanded to accommodate a wider range of roles for fathers
as well as mothers.
• Significant number of Australians now believe that fathers are equally capable of fulfilling other
roles seen as important aspects of a satisfying and productive human life.
• In order to ensure that parents meet their responsibilities, the government has enacted a number
of laws.
• Courts and society still need to distinguish between families in which shared care is desirable and
those in which there are concerns that override this aim.
• Most obvious legal response = to change the law to distinguish between equal responsibility and
equal time.
Issue 3: Surrogacy and Birth Technologies:

Birth Technologies:
• Common law: mother of a child is woman who gave birth to the child and father is the man who
acknowledges and accepts the responsibility for the child or who is proved to be the father in court.
• Advances in birth technologies = no longer possible to presume identity of the biological parents.
• Birth technologies include:
➔ artificial insemination: donated sperm artificially introduced in vagina/uterus.
➔ IVF: fertilisation takes place outside uterus using sperm of parent or donor and ovum of parent
or donor; resulting embryo implanted in uterus.
➔ Genetic manipulation, gene shearing or donated genetic material to alter foetus in utero.
• Has created legal issues; from paternity to rights of inheritance to who has care and control over
the child; father of the child may not be the ‘natural father’.
• Any child conceived via artificial insemination or IVF, the parents are considered to be the legal and
natural parents and have the obligations of maintaining and caring for the child.
• Under Status of Children Act 1996 (NSW), these children have same legal status as those conceived
naturally.
• This Act created the notion that ‘presumption of paternity’ is automatic and is irrefutable if the
couple are married or in a de facto relationship.
• Under this Act, ‘when a woman becomes pregnant by using donor sperm by someone else other
than her husband, then that man is presumed not to be the father of the child’.
E.g. B v J (1996): father refused to pay maintenance, arguing the child wasn’t his and that
maintenance was the responsibility of the sperm donor because his name appeared on the birth
certificate; court rejected this under ‘presumption of paternity’, he became the child’s father
became he was in a relationship with the child’s mother = responsible.
• Sperm donor presumed not to be the father; this may be altered if he makes a written application,
signed by the mother and lodged with the Registry of Births, Deaths and Marriages.
• If paternity is in dispute, Act allows identity of the father to be determined by blood tests.
Surrogacy:
• Involves agreement between a commissioning couple and a woman who agrees to bear a child for
the couple then gives the baby when it is born; it is usually the woman who gives birth to the child,
who is the mother.
• Before 2010, even if the birth mother used both donor ova and sperm or a donated embryo to
achieve the pregnancy, she was still considered the legal and natural mother of the child.
• Status of natural mother as birth mother found in Status of Children Act 1996 (NSW), Family Law
Act 1975 (Cth), Marriage Act 1961 (Cth) and under common law.
• Under Surrogacy Act 2010 (NSW), it is possible to transfer parentage of child from birth parent to
prospective parent in surrogacy contract; will avoid commissioning parents to go through a formal
adoption process.
• Any parentage order must be made in best interests of the child.
• Commercial surrogacy remains illegal even when carried out overseas.
Legal and Non-Legal Responses:

• Surrogacy raises complex social, emotional and parenting issues.
• Commercial surrogacy: agreement involving a fee/reward paid to woman who gives birth to the
child; transfer of custody and parental responsibility for the child through adoption or agreement.
• Altruistic surrogacy: agreement where surrogate receives no financial payment for giving birth to
the child; commissioning parents pay expenses related to surrogate’s pregnancy and the birth.
Legal Responses:
• Surrogacy laws in Australia are state or territory based; these laws have been inconsistent and
provided inadequate protections and guidance until recently.
• Some state and territory laws prohibited altruistic and commercial surrogacy, some allowed
altruistic but prohibited commercial surrogacy and other laws silent on the issue.
• 2008: Standing Committee of Attorneys General, a ministerial council drawn from state and Cth
parliaments, agreed that a national model law regulating surrogacy is needed.
• 2010: Standing Committee released draft of 15 principles for a national surrogacy model which
would include:
➔ informed consent of all parties is essential
➔ court orders should be available to recognise commissioning parents as legal parents if that’s in
best interests of the child
➔ court orders should not be granted for commercial surrogacy.
• May 2009: NSW Legislative Council Standing Committee on Law and Justice tabled a report on
altruistic surrogacy in NSW, aiming to clarify legal rights and responsibilities of commissioning
parents and birth parents, and clarify rights of children born through surrogacy.
• NSW Parliament introduced new legislation in 2010 to regulate surrogacy arrangements in NSW;
passed the Surrogacy Act 2010 (NSW), commencing in early 2011.
• Prior to the act, in NSW, Status of Children Act 1996 (NSW) meant that child’s legal parents were
presumed to be the birth parents; commissioning parents in a surrogacy arrangement wouldn’t be
recognised as legal parents.
• Where the child was conceived in a stable relationship, the male partner of the surrogate could be
assumed to be the father even if he was not the biological parent = child’s biological father had no
rights to his child.
Was illegal for surrogate mother to ‘give’ her child to commissioning parents; placing child with a
person who is not a relative for more than 28 days is illegal; if one of the commissioning parents was
a biological parent, this would be permitted.
• Some aspects of altruistic surrogacy previously covered by Human Tissue Act 1983 (NSW) or as
adoption issues under Adoption Act 2000 (NSW); federal provisions addressing surrogacy in Family
Law Act 1975 (Cth) = inadequate in addressing all potential issues.
E.g. Re Michael: Surrogacy Arrangements (2009): heard under Family Law Act because NSW at the
time lacked clear surrogacy state legislation; commissioning parents were attempting to apply to
Family Court to adopt the child; 2 biological parents sought to adopt child after the surrogate
mother had given birth. The court had to determine if Sharon and Paul were Michael’s legal
proceedings; however, under Family Law Act, the child is deemed to be the child of the woman who
gave birth and her partner. The court couldn’t make an order for Sharon and Paul’s adoption of
Michael, but can apply to Supreme Court of NSW for adoption order under Adoption Act 2000
(NSW).
• Surrogacy Act 2010 (NSW) introduced system of parenting orders where parties can apply to NSW
Supreme Court for order to transfer full legal parentage of child from birth parent in a surrogacy
arrangement to commissioning parent.
• New parentage orders grant commissioning parents full legal capacity to make decisions in child’s
interests and aim to provide relief and certainty for all parties involved in arrangements.
• Under new system, commissioning parents must apply for parentage order between 30 days and 6
months after the child’s birth; first 30 days intended to operate as cooling off period for birth
mother.
• Orders also apply to de facto but require that if 2 people enter into a surrogacy arrangement as
intended parents, they must be a couple. Some other requirements of the framework:
➔ Order can only be made if it’s in the best interests of the child
➔ Order cannot be made in relation to a commercial surrogacy.
➔ Consent of birth parents is required before order can be made.
• Act made amendments to other NSW legislation to ensure that parentage orders and status of the
child would be recognised; white it permits and provides legal framework for altruistic surrogacy,
NSW legislation prohibits arrangements involving commercial surrogacy = fine up to 100,000 and/or
imprisonment of up to 2 years.
• Various organisations and lobby groups have opposed surrogacy on moral grounds, usually based
on religious principles; centre the concept of a traditional family; surrogacy provides avenue for
same-sex couples to have children.
• Lobby groups have expressed a desire that surrogacy be restricted to infertile heterosexual
couples; claimed that families with parents of same sex face difficulties (e.g. social stigma).
• E.g. Australian Christian Lobby claimed in 2009 that surrogacy ‘would pave the way for two men or
two women to “order” a baby they aren’t even genetically connected to’.

• Federal government slow to pass laws relating to surrogacy issues and courts constrained by
existing legislation; wide inconsistencies in surrogacy laws between states and territories.
• In NSW, previous laws were inadequate and people who sought to become parents under
surrogacy arrangements forced to deal with legal schemes not designed for those situations.
• This new framework is important in increasing legal certainty for parties to a surrogacy
arrangement because they are otherwise unable to have children.
• Surrogacy Act encourages parties to a surrogacy arrangement to make sure they understand the
psychological, social and legal complexity of their decisions and the impact on the child.
Issue 4: Care and Protection of Children:

• All states and territories, together with the Cth government have passed laws regarding family
violence, child abuse and child neglect.
• Focus of Children and Young Persons (Care and Protection) Act 1998 (NSW) is on safeguarding
health and wellbeing of children, including protecting them from violence or abuse, and on the
mandatory reporting of concerns to Community Services.
• Amendments to Family Law Act 1975 (Cth) by Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth), which aimed to ensure children have a meaningful relationship with
both parents, require court to consider child’s best interests rather than parental interests.
• According to submission of NSW Ombudsman to Wood Inquiry on mandatory reporting, the
number of ‘at risk of harm’ reports made to Community Services has increased and continues to
grow.
Legal and Non-Legal Responses:

• Family Law Act 1975 (Cth) defines ‘family violence’ as: any action/threat of violence by one family
member against another, including witnessing that action/threat, that causes fear about personal
safety.
• 2006 amendments to the Act endeavoured to ensure that children are protected from direct harm
and harm resulting from exposure to family violence.
Legal Responses:
• Evidence of family violence = court may order that child’s contact with offending parent is
restricted or that the contact takes place within a controlled environment, e.g. with social worker.
• Where there is evidence of family violence, family dispute resolution may be inappropriate; court
will hear cases that raise family violence issues quickly so it can take action to protect vulnerable
family members.
• Family Court can order relevant state and territory agencies to provide information regarding
allegations of family violence.
• When Community Services NSW receives ‘risk of harm’ report involving physical/sexual abuse
allegations, neglect or criminal conduct regarding a child, a caseworker makes an assessment to
determine extent of risk.
• Two thirds of all reports are referred to a Community Services centre or a Joint Investiagtion
Response Team for further assessment (police, NSW Department of Health representatives); the
response team will speak to the young victim and act to protect the child if they are in immediate
danger.
• If police decide there is evidence of crime, suspect will be charged, child will be assigned a
caseworker and will receive medical attention if needed.
• Response teams were established to improve interagency collaboration between NSW Health, the
police and Community Services, and to provide counselling and trauma support for victims.
• Reporting reduces amount of administrative work for a caseworker and reduces call load on
Helpline = allowing caseworkers to focus on assessment.
• NSW FACS Annual Statistical Report 2010/11: during 2009/09, there were 188,580 calls to helpline
and over 31,000 faxes.
• Churches and organisations like Salvation Army have traditionally provided support and
educational services to children in needed. Services include:
➔ Child-care centres
➔ counselling services
➔ Emergency Housing
➔ Youth support programs.
• Although these groups have provided help and support to children and families in crisis, some
groups have been criticised for lack of action dealing with accusations of child abuse made against
their own members.
• Clergy members of various churches been accused and found guilty of serious misconduct and
child abuse.
• Some church organisations have been criticised for their lack of support for victims of abuse at the
hands of the clergy and some churches have been accused of protecting known child sex offenders
within their ranks.
• In response, Anglican Church established a Professional Standards Unit that investigates
complaints involving clergy and ancillary staff.
• 2002: Anglican Church made public apology for misconduct of clergy and staff and reaffirmed the
church’s condemnation of such behaviours.
• Victims of abuse encouraged to contact relevant church authorities to lodge a complaint.

• All major religious bodies which have contact with children and young people have established
internal procedures for investigating abuse claims; as part of this process, each has established
counselling services for abuse victims and compensation funds to pay future claims made by victims.
• Number of initiatives to provide support for families and children in crisis:
➔ Child Abuse Prevention Service (CAPS): aims to alleviate child abuse by educating community
about child abuse issues and providing counselling and ongoing support for victims and perpetrators.
➔ Child Protection and Family Crisis Service: provides 24-hour telephone counselling.
➔ Parenting NSW: a state government initiative aiming to make parenting easier by helping
parents become better parent.

• Criticisms of child protection in NSW have been made about Community Services, the police, the
courts and community groups.
• Review of the NSW child protection system began in 2006; Children’s Commissioner Position
established; monitor state programs to remove child abuse and strengthen existing child protection.
• Review also proposed that a national framework for child protection should be established; no
such framework exists.
• Legal system accused of acting too slowly to protect child victims of abuse and there are claims
that existing mechanisms to protect children are inadequate.
• Increasing number of persons under 18 have been placed on care and protection orders.
• Australian Institute of Health and Welfare report 2009: more than 25, 000 children placed on care
and protection orders, increase of 88% since 2000.
• In 2007, more than 150 children who had been reported to Community Services as being at risk of
harm died at the hands of their abusive parent/carer; many less than 4 years old.
• Community Services has been unable to provide adequate protection and support for families and
victims of child abuse.
• ‘Keep Them Safe: A shared approach to child wellbeing’, a 2008 NSW government inquiry into
Child Protection Services; highlighted importance of wellbeing of all children and aimed to provide
appropriate support to families to reduce the growing number of families requiring statutory child
prevention.
• Federal government recognised child abuse and neglect as a major issue and is seeking to create
national framework for protecting children; will necessitate the coordination of government and
non-government organisations, the creation of uniform child protection laws, and a focus on early
intervention and prevention strategies to protect children from abuse and reduce harmful effects
that abuse has on children.

Family Law Notes

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HELEN YOUSIF – FAMILY NOTES

1. The nature of family law.

The concept of family law:

Legal Requirements of Marriage:

The legal definition of marriage:

Requirements for a valid marriage:

Requirements for a valid marriage ceremony:

Legal Consequences and Responsibilities of Marriage:

- Mutual duties of husband and wife:

- Contract and agency:

Alternative Family Relationships

independence of women have contributed to growth of single-parent families.

Legal Rights and Obligations of Parents and Children

• Australia ratified CROC in 1990 and is bound to its terms.

Parental responsibility under the Family Law Act 1975 (Cth):

Consequences of parental neglect under state laws:

Legal requirements and process:

2. Responses to Problems in Family Relationships.

Legal Consequences of Separation

➔ financial and non-financial contribution to property by both parties

Legal Responses to Domestic Violence:

Violence between spouses:

Violence Involving Children

Non-legal Responses to Domestic Violence:

Effectiveness of the law in protecting victims of domestic violence:

killed by their partners, who had been released on bail.

Methods of Resolving Disputes

Federal Magistrates Court est. 1999

The role of NGOs:

The role of the media:

Contemporary Issues Concerning Family Law

Issue 1: Recognition of same-sex relationships:

Legal and Non-Legal Responses

Responsiveness of the Legal System:

Issue 2: The Changing Nature of Parental Responsibility:

Legal and Non-Legal Responses

Responsiveness of the Legal System:

Issue 3: Surrogacy and Birth Technologies:

Legal and Non-Legal Responses:

Responsiveness of the Legal System:

Issue 4: Care and Protection of Children:

Legal and Non-Legal Responses:

• Victims of abuse encouraged to contact relevant church authorities to lodge a complaint.

Responsiveness of the Legal System:

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