FAMILY LAW

CHANGES TO FAMILY LAW (REFORM) IN RESPONSE TO CHANGING VALUES

PARA 1: DOMESTIC VIOLENCE- moderately EFFECTIVE
ADVOS
 previously considered a ‘private’ matter, until an increasing prevalence of the issue in society lead to
stronger demands for better protection
 Community values changed significantly to adjust to changes in modern family structures and the
changing perspective on the seriousness of domestic violence
 Apprehended Violence orders were introduced in the early 1980s, reflecting that domestic violence
became a public issue
 Crimes (Domestic and Personal Violence) Amendment Bill 2013 and Family (Serious Crimes Prevention
Orders) Act 2016 gives police the power to issue (ADVOs) without having to go through court processes
- allows individuals to be immediately protected without the delays of courts. Providing an 80% drop
when ADVO’s are taken out- BOSCAR 2017
- 2016 SMH article which stated that “stalking of victims also dropped from 25% to 3% after an ADVO
was taken out.”
- A Brisbane Times 2019 article stated that “rates of violence, breaches and deaths were all on the
decline”
- HOWEVER BOSCAR revealed that in 2015, over 22500 ADVOs were issued and 3500 of those were
breached
- NSW Bureau of Crime Statistic and Research, 1 in every 5 ADVOs issued is broken, with around 125
people being charged for violations each month in 2016
 EG. ROY V ROY 2014
- Man beats mum who takes out an ADVO onto son. Less than 2 months later the son is back livening
with the mother
- Dangerous for mother, who is now subject to another potential DV situation.
- Shows ineffectiveness simply by ignoring AVO. Police and officials could well be unaware the son is
breaking his AVO, as its power relies solely on compliance with victim, who in this case is complicit
with the violation
 EG. “Husband charged with 100 domestic violence offences” (Smh,2005)
- Man, allegedly breached an AVO 19 times, stalked or intimidated her 26, destroyed their property,
carried out verbal harassment and physically assaulted her dozens of times over 18 years
 EG. Case of john Edwards
- 2018, john Edwards 68, shot and killed his two teenage children at West Pennant Hills before
committing suicide
- NSW authorities failed to pick up on a pattern of domestic violence that could have prevented Edwards
from obtaining firearms.
- breaching the Firearms Legislation (Amendment) Act 1992 (NSW), which requires police to confiscate
firearms in domestic violence situations
 The NSW Police Firearms Registry shows 2309 licences were suspended in domestic violence cases
from 2008 to 2010, yet only 512 people lost their gun licence.
 EG. The News.com Article, “A history of apprehended violence orders failing Australian women”
- exemplifies deficiencies in the law’s ability to encourage cooperation with ADVOs within the case of
Jean Lennon, where the woman was shot 15 times outside Parramatta Family Law Court by her ex-
husband, after finalising another ADVO
- Thus, the changes to law regarding domestic violence have only been somewhat effective in reflecting
changing community values, with a significant need for further reform
COURTS AND TRIBUNALS
 Establishment of the family court under the family act 1975 and the federal circuit court under the federal
circuit court act 1999 provided a solution for family violence and cases.
- However, a pile up of cases ensued highlighted by “family courts fall short of domestic violence” SMH
2016
- To decrease backlog the government merged the courts with the federal circuit and family corut of
Australia bill 2019
- Officially family courts are dealing with at least 6o cases a day, furthermore, victims have to wait at
least a year as per Financial reviews “domestic violence victims ‘let down by broken system’ chief
judge”
 PARA 2: CARE AND PROTECTION OF CHILDREN- SOMEWHAT EFFECTIVE
 Community values strongly disapprove of the neglect and abuse of children, which has led to the
consistent development of legislation to keep children safe.
 The Children and Young Persons (Care and Protection) Act 1998
- requires occupations who have a duty of care towards children, such as teachers and social workers, to
report to Family and Community Services (FACS) if they have reasonable grounds to suspect a child is
being abused.
- allows the courts to remove a child if they are unsafe in their environment
 This is an attempt to uphold community values, with aims to reduce the significant number of failures to
report at-risk children
 The SMH investigation into FACS in 2007 and 2008 demonstrated that the department remained vastly
under-resourced with insufficient numbers of caseworkers, despite increasing reports requiring
investigation
 The high-profile deaths of Shellay Ward and Dean Shillingsworth in 2007, who are 2 of 115 children to
have died in NSW in the past 12 months while under watch of the department, have sparked immense
media outcry due to the conflict with community values
- “Department of community services “warned repeatedly” about starved girl’s family” – ABC news
 The Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 aimed to make child
protection a ‘shared responsibility’ by involving all relevant government agencies and non-government
organisations, in order to reduce pressure on the single department and improve efficiency in cases due to
increased resources available
- Even still state government figures in 2015 show the number of vulnerable children at risk of serious
harm who are nor seen by a caseworker has increased to 53,151 in NSW
- reveals the extreme ineffectiveness of law reform regarding resource sufficiency
 within cases, legislation has been seen to uphold in specific situations the best interest for the child in
order to abide by children and young persons (care and protection) act 1998. EG:
- B V B (1997); court used discretion to decide that child’s best interests would be to go with mother
interstate and allow father non-custodial rights
- WYLIE V WYLIE (2014); Father had rights to child residence due to suspicion of mother having
mental illness
PARA 3: DE-FACTO RELATIONSHIPS (SAME SEX)- HIGHLY EFFECTIVE
 The legal recognition of same-sex relationships provides protection for the marginalised group,
sufficiently reflecting changing community values due to growing acceptance of same-sex couples
 The HREOC Same Sex: Same Entitlements Inquiry in 2007 identified 58 federal laws that discriminated
against same-sex couples, acting as an agency of law reform.
 The Same-Sex Relationships (Equal Treatment in Commonwealth Laws-Gernal Law Reform) Act 2008
enabled amendments to these discriminative laws.
 This law reform increased legal rights for same sex couples, therefore reflecting changing community
values.
 Law reform in 2010 allows same-sex couples to adopt through the Adoption Amendment (Same Sex
Couples) Act 2010
 The Human Rights Law Centre Article 'Australia now has adoption equality' notes that this law reform
symbolises another step forward for equality before the law for same sex couples
 However, the Act was amended so that couples relinquishing their child can indicate whether they are
prepared for a same sex couple to adopt.
 The SMH article "Adoption by same sex couple opposed because birth parents’ catholic faith" reveals the
previous lack of equality and the effectiveness of law reform in reflecting changing community values.
 The 2007 Get Up Action Survey revealed that 57% were in approval of same sex marriage but law reform
only occurred in 2017
 Same-sex marriage was made possible through the Marriage Amendment (Definition and Religious
Freedoms) Act 2017, which refined marriage as a ‘union of 2 people’ to successfully reflect the changing
community values.
 The SMH article 'Same sex marriage legalised in Australia as parliament passes historic law' notes how
Same sex couples now have marriage equality and improved access to the legal protections, emphasizing
the changing community values as 60% were in favour of the legislation
 Health Insurance Act 1973 (Cth) in 2008 allows same-sex couples and their children to register as a
family for Medicare and have the same entitlements initiated through the Hope/Brown v NIB Health
 Fund
 same Sex Relationship (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008:
Eliminate discrimination in areas of medicine, social security, child support, etc.
- 2013 changes where lesbian parent have been given right to have their names on adoption birth
certificate – ‘Australian FIRST: Both Lesbian Parents Named on Birth Certificate’- Pink News 2013
 Toonen v Australia
- In 1991, a homosexual man from Tasmania, sent a communication to the Human Rights Committee.
- At that time homosexual sex was criminalized in Tas.
- Toonen argues that this violated his right to privacy under Article 17 of the ICCPR.
- He also argued that because the law discriminated against homosexuals on the basis of their
sexuality, it violated Article 26.
- In response to the Human Rights commissions view, the Commonwealth government passed a law
overring Tasmania’s criminalization of homosexual sex
PARA 4: RELATIONSHIP BREAKDOWNS
 Law reform has also played a vital role in achieving just outcomes for families when considering
relationship breakdowns and its consequences.
 Law reform such as Family Law amendment (Defacto and Financial Measures) 2007 not only provided
equity for these types of relationships in front of the law but also provided protections for these types of
relationships in terms of breakdowns.
- Under these amendments children are treated differently to ensure their safety as to not exploit their
age and limited understanding and comprehension of the
- The laws in the principle of the Family Law Act 1975 from enforcement to compliance, as a result of
various law reforms has had a major impact on achieving just outcomes for society and family
members.
- the methods of dispute resolution such as arbitration and counselling has resulted in 97% of
relationship breakdowns (according to the Australian Institute of Family Studies 2015) being solved
amicably with only 3% proceeding to court.
- This indicates the effectiveness of law reform in achieving just outcomes for family members and
society as the interests of both parties are taken into account.
- Including alternative forms of dispute resolution, meaning both parties are likely to feel satisfied with
the outcome of the relationship breakdown.
 Furthermore, with the Family Law amendment Act (Shared responsibility) Act 2008 the notion that the
child should have access and spend time with both its father and mother (or both parents) has been
recognised in Australian Law resulting in 76% of children being involved in some form of shared
parenting agreement (AIFS 2015).
PARA 5: non legal response
 Additionally, various non-legal responses in the form of both government and non-governmental
organisations, programs, and services such as family dispute resolution (FDR) is somewhat effective due
to its ability be accessible and reflect society’s values and meet its needs but ineffective in protecting
individual rights.
 The Australian Institute of Family Studies (AIFS) published a report in 2014, “Keeping Kids in Mind: An
integrated post-separation services”, outlining the effectiveness of an example of FDR.
- The report found that over 75% of parents who participated in the program were better at dealing
with conflict with the other parent and protecting their child.
 This shows how FDR as a non-legal response are effective in achieving just outcomes as it reflects
society’s value to be in the ‘best interests of the child’.
 However, the AFIS published a research paper in 2015, “Relationship Education Counselling”, outlining
the ineffectiveness of relationship counselling as a form of FDR when a child is involved. It found that
relationship counselling does not work for approximately 30% of those who attend, regardless of
approach.
- Additionally, families facing the most relationship difficulties and the highest levels of distress tend
to have worse outcomes in counselling thus having a more negative effects on the child and their
rights and needs are subsequently abandoned.
 Overall, FDR can be observed to be somewhat effective as a non-legal response in the care and protection
of children.