Core III: Law in practice – FAMILY

1. The nature of family law

 the concept of family law

 discuss the difficulty of defining ‘family’ and the changing concepts of family
 distinguish between state and federal jurisdiction in family law

Defining family

o fundamental group unit of society offering care and protection

o dynamic and diverse
o evolved as there has been a shift in community values
o family law
- focus = care and protection
- governs the relationships between people
- ensures financial security

Changing concept of family

o structure of family has become more diverse over time

o law reform
- reflection of shifting community values
- acceptance of alternative family relationships
- change in the composition of society
- extend protection to all members

 legal requirements of marriage

 outline the legal requirements of a valid marriage

Valid marriages

o marriage  the union of 2 people to the exclusion of all others, voluntarily entered into for life
o can be declared void in particular circumstances
o outlined in ‘Marriage Act 1961 (Cth)’

Theme and challenge – issue of compliance and non-compliance

o gender not relevant – ‘Marriage Amendment (definition and Religious Freedoms) Act 2017’
enables same-sex couples to marry
CRITIQUE  meeting society’s needs in order to reflect community values and adapt to
ensure fairness for ever-changing families
o marriageable age – must be 18yr + or 16-17 can apply to court
o prohibited relationships – unlawful to marry parent, grandparent, child, grand-child or sibling
o notice of marriage – at least one month, one day before ceremony
o ceremony requirements – 2 witnesses, 14 days

Legal consequences and responsibilities of marriage

o mutual duties  share care of each other

o maintenance  both spouses have a duty to financially support each other and any children
o property rights  modern family law based on shared assets (property in both names)
o contract and agency  partners generally not responsible for debts of other
o wills  ‘ Succession Act 2006 (NSW)’ intestate – when person dies without leaving a will
applied to distribute deceased property firstly to spouse (and children if any) and then to
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extended family

 alternative family relationships

 discuss the difficulty of defining ‘family’ and the changing concepts of family
 distinguish between state and federal jurisdiction in family law

Alternative family relationships

o any relationship other than nuclear

o state legislation regulated most alternative relationships
o de facto = federal (state referred powers)
o puts pressure on law to change
o ‘Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)’ 
transfers all power over relationship breakdown to Federal government
1. property
2. children
o states still retain jurisdiction over many areas
CRITIQUE  complexity b/w federal and state still exists can decrease the effectiveness of
the law

ATSI peoples’ customary law marriages

o addressed the same as de facto

o bound by traditions and enforced by customary law
o don’t conform to requirement of ‘Marriage Act 1961 (Cth)’
o not legally binding
o no recorded or registered w/ authorities
CRITIQUE  lack of access to legal advice – vulnerable under law
o children are protected under the FLA and ‘Status of Children Act 1996 (NSW)’
o elders can arrange marriages
o marriage breaks down  court has power to determine an appropriate parents order
including
- maintenance orders
- parental responsibility
o based on need to maintain ATSO lifestyles, culture and traditions

Single parent families

o changing attitudes  increase in no. of divorces  15% Aus

CRITIQUE  access to justice
+’ves
- improves welfare provisions
- greater financial independence for women
-‘ves
- difficulties accessing legal advice  costly
- pursing their rights in court
- obtaining adequate legal protection
o ‘The Child Support Scheme’
- introduced by Department of Human Services to enforce maintenance orders on parents
who do not reside w/ children
- ensures parents fulfil responsibility towards their children
o ‘The Child Support (Assessment) Act 1989 (Cth)’
- Introduced formula for calculation of child support owed
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- Used administrative procedure rather than judicial

o ‘The Child Support (Reigstration and Collection) Act 1988 (Cth)’
- Shifted collection of children from courts to administrative system
CRITIQUE  meeting society’s needs, protects individuals rights

De facto

o Partners are not legally married or related by family but have a relationships as a couple living
together on a genuine domestic basis
s.4AA ‘Family Law Act 1975 (Cth)’
o 1999 – broadened to include same-sex couples
o ‘Property (Relationships) Act 1999 NSW’
o Mix of state and federal laws
o ‘Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)’ –
broadened jurisdiction of Family Crt to deal w/ financial matters arising from breakdown
CRITIQUE  multiple de fact relationships, married and de facto relationship

Same-sex relationships

o ‘Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)’ –
binds same-sex couples in relation to property settlements upon breakup
o ‘Same-sex: Same entitlements Final Report 2007’  federal government amended 84
sections of the Commonwealth Act to remove different treatment in relations to tax
- Tax
- Superannuation
- Medicare
- Aged care
- Veterans
- Entitlements (incl. employment)
- Workers compensation
- Family law / child support

Polygamous relationships

o Illegal in Aus
o Formed when an individual is in a relationship or married with more than one person
o If polygamous marriage is entered overseas it is deemed to be a marriage in Aus Crts (under
s.6 FLA) for matters concerning;
- Child/spouse maintenance
- Division of property
- Parenting plans
- Domestic violence orders

Blended families

o Created when a parent remarries, and their children and their partner and their partner’s
children live together
o Step-parents  DO NOT have the same legal responsibilities for their stepchildren
- no automatic right to discipline partners children
- not responsible for maintenance or support of partners children
o if step-parents want to adopt  apply to Family Court  if approved must apply to Supreme
Crt for adoption order
o step-children lack automatic claim to estate of their step-parent if they die intestate (child
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must prove to be financially dependent to claim)  achieved by applying for family provision
order
s.58 ‘Succession Act 2006 (NSW)’

 legal rights and obligations of parents and children

 explain the legal rights and obligations of parents and children, including those derived from
international law

Parental responsibility

o ‘Family Law Act 1975 (Cth)’ part VII, s60B  best interests of the child taken into
consideration when making parenting orders
1. Opportunity to maintain meaningful relationship with both parents
2. Protection from physical or psychological harm from abuse, neglect or violence
3. Adequate and proper parenting to help the children achieve their full potential
- Right to know and be cared for by both parents
- Right to spend time and communicate regularly with their parents, and others
significantly to their welfare, care and development
- Parents share responsibility
- Parents should agree on important matter
- Right to enjoy their culture
o ‘Family Law Reform Act 1995 (Cth)’  emphasis on responsibility of parents and introduced
parenting plans – voluntary written agreements (in contrast to court orders) may include;
 Child’s living arrangements
 Time spent w/ each parent
 Child’s religious, cultural, educational needs
 Process of changing plan/ dealing with a disagreement
Parenting order issued if;
1. parenting plan cannot be agreed upon
2. domestic violence  likely to skip dispute resolution process if the court finds
reasonable grounds to believe the child is exposed to abuse/family violence the
presumption of “equal shared parental responsibility” does not apply
o ‘Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)’
- Emphasised child’s right to meaningful relationships/care
CRITIQUE  T&C – cooperation/resolve conflict

Parental care

o derived from ‘UN Convention on the Rights of the Child’ CROC

- Aus ratified in 1990
- Recognised universal protection of children’s rights
- children must be protected from violence, discrimination, exploitation and neglect
- states must act in best interests of the child
CRITIQUE  lack of enforceability- No federal legislation has been passed implementing
it into domestic law. Commonwealth left it to the states to implement. State legislation
includes;
Article 3: best interests of the child (FLA s61DA)
Article 12: children’s participation in decision-making

Neglect

o ongoing failure by a parent to provide a child with the basic requirements for proper growth
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and development such as food, shelter, medical hygiene and supervision  state/territory
legislation
o neglect = criminal offence under;
1. ‘Children and Young Persons (Care and Protection) Act 1998 (NSW)’ s.228  fines up to
$22,000
2. ‘Crimes Act 1900 (NSW)’ s43A  jail up to 5yrs

o Family and Community Services (FaCS)  main NSW department responsible for implement
Children & YP Act
- Initiates Joint Investigation Response team comprised of community services, police and
NSW health professionals
- Can investigate abuse/neglect
- Provides care & support services
- Refers individuals to crisis counselling

Education

o Right to education  ‘Education Act 1900 (NSW)’ and CROC

- Imposes state duty to ensure every child receives adequate educate
- Provisions for home-schooling/distant ed. As long as child is educated in accordance to
the curriculum by state Board of Studies
- Failure to provide child w/ education  crime
- 2009  changes made it compulsory to attend education facility from 6 to 17

Discipline

o Parents have the right to discipline w/ physical force

- Must be reasonable, having regard to the age, health, maturity or other characteristics of
the child
- Depends on the ‘nature of the alleged misbehaviour and other circumstances’ – ‘Crimes
Act 1900 (NSW)’ s61AA
- Defence of ‘lawful correction’ cannot be used for assault if not reasonable
- Striking the head/neck, causing pain lasting more than a short period, shaking. Striking w/
fist  not considered reasonable
Medical treatment

o ‘Minors (Property and Contracts) Act 1979’ s.49  parents responsible for medical/dental
care under the
- Under 14  consent required
- 14 - 16  child or parents consent
- 16 – 17  consent of YP
o Autonomy of children
- autonomy  freedom of will, self-government; the ability to act to act without outside
interference
- children  haven’t developed cognitive abilities
- legal autonomy increases as child gets older

Ex-nupital children

o exnuptial  a child born of parents not lawfully married to each other

o no legal status/rights in the past
o legitimacy existed if the child
- was born during marriage
- ex-nuptial but parents later married
- adopted
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o ‘Status of Children Act 1996 (NSW)’

- Gave ex-nupital children rights
- ‘Presumption of parentage’  presumption that those who say they are the parents are,
parents must explicitly state if they want any children excluded from their will
o ‘Family Provision Act 1982’  removed illegitimacy
o ‘Succession Act 2006’  permit child to apply for family provision order

 adoption
 explain the legal rights and obligations of parents and children, including those derived from
international law

Adoption

o process of transferring parental rights and responsibilities from biological to adoptive parents
o adoption law  aims to find most appropriate parents for the child (best interests of the child)

Legal requirements and processes

o ‘Adoption Act 2000’  state responsibility

o Whether married/de facto both must give consent, single mother only needs to consent
o Children over 12yrs must consent
o Birth another cannot consent w/ in 3 days
o 30 day revocation period (can change their minds)
o Court consent if parents are not found/incapable to give consent
o relinquishing parents  a parent who nominates their child for adoption
- can nominate a relative
- can nominate a desired religious upbringing
o Guidelines as to who can apply to adopt:
- Married, de facto couples & individuals
- Must be 21+ but under 51 (male parent - 18yrs older, female parents - 16yrs older)
- Must have good repute and able to fulfil responsibilities
- Where relevant child’s culture, language and religion will be taken into account

Overseas adoptions

o Increase in couples to adopt from overseas

o ‘Hague Convention on Protection of Children and Respect of Intercountry Adoption’ and
bilateral agreements b/w Aus and countries that have no ratified the convention
o Intercountry Adoption Australia  est. in 2015 due to growing number
o NSW
- Parents apply through Department of Family and Community Services
- They will be offered the child, if parents accept, they will lodge adoption visa application,
forwarded to overseas welfare agency
- Adoption can be finalised overseas, or agency can authorise in Aus
- Child granted permanent residence
- Privately arranged adoption  possible if parents can prove they have been living in
country for 12mths prior to application
- Australian Department of Immigration/Border Protection can refuse

Access to information

o used to only be release by Reunion and Info Register

- only if both parties placed their info on the register
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- maintained by Community Services in NSW

o ‘Adoption Amendment Act 2008 (NSW)’ gives relinquishing parents and adopted children
right to request personal identity information from community services
o Adopted children may apply to Adoption Information unit to obtain ‘supply authority’ which
contains info. on birth parents
- Doc contains adoptive records
- Biological parents can obtain copy of amended birth certificate (info on adoptive family)
o ‘contact veto’ lodged if parents/child do not wish to be contactable
o Advance Notice Register  notifies if any application is made