Legal Studies: Family Law Summary Notes

1. The Nature of Family Law

Concept of family law

o Covered in the ​Family Law Act 1975 (Cth)​ ​ ​ ​legal duties and responsibilities
o Different forms of family arrangements that shape society’s concept of what family is
o Family Law comprises of laws that deal with relationships between family members and rights/responsibilities of people
in families
o Marriage Act 1961 (Cth)​ ​ ​ establishes legal requirements for marriage
o Society protects married couples responsible for children by distributing property according to marital and parental
relationships ​ ​ alternate family relations also governed by law
o Difficult concept as it applies an adversarial system to an area where cooperation and reconciliation are needed

Definition of family
o Difficult to define family ​ ​ many different kinds of relationships regarded as family
o FLA 1975​ defines a family as ​“the natural and fundamental group unit of society, particularly while it is responsible for
the care and education of dependant children”.
o Undergone substantial change over 30 years ​ ​ traditional consists of wife, husband and children less common
o Family Law governs relationships between people in different types of families
o C v D (1979): ​C was hermaphrodite never able to consummate marriage with D – decree of nullity granted

Legal requirements of marriage

Legal Characteristics ​(without this marriage is null and void)

Marriage must be:

1. Union of man and woman; ​same gender is not legally binding in AUS

Hyde v Hyde and Woodmansee (1866): ​union of man and woman, to the exclusion of others, voluntarily entered into for life

2. Voluntarily entered; ​not legally binding if forced or tricked into

a. Arranged marriages may also be classified as voluntary as consenting parties organise marriage to be arranged
however adults and minor is not accepted

Mehta v Mehta (1945): ​Ceremony declared valid however was not aware of the marriage due to foreign language was granted
decree of nullity

3. For Life; ​intention of marriage rather than actuality

4. To the exclusion of all others; ​two people only ​ ​ AUS is monogamous society ​ ​ adultery no longer grounds for divorce
​ evidence of social values changing
a. Polygamy is not legal in Australia however other ‘wives’ considered de facto
b. As seen with ​Marc Glasby ​article on SMH where Mr. Glasby’s second wife (also a twin) was only considered
de facto

5. Specification of man and woman; ​indicates that parties to marriage must be of different sexes

Re Kevin

SYLLABUS – ‘learn to’ ​ ​ distinguish between State and Federal jurisdiction in family law ​
 Legal Studies: Family Law Summary Notes
Federal
o Under Australian Constitution government has power to make laws related to marriage and divorce ​ ​ Federal power
prevails over certain matters
o E.g. 1988 and 1990; states and territories except WA agreed to hand jurisdiction about children of de facto couples to
the Commonwealth
o Children jurisdiction lies under ​Family Law Act 1975 (Cth):
o Marriage
o Divorce
o Matrimonial causes (parental rights, custody and guardianship of infants)
o Property disputes for divorced couples and non-married couples

States
o Residual power to make laws about other family related matters. States have power over:
o Wills, inheritance and succession
o Adoption
o Aspects of domestic violence
o Surrogacy and birth technologies
o Care and protection of children who are at risk of harm
o Registration of births, deaths and marriages

SYLLABUS – ‘learn to’ ​ ​ outline the requirements for a valid marriage

Though the ​Marriage Act 1961 (Cth) ​specifies that marriage have four main elements (between a man and a woman, voluntarily
entered, to the exclusion of all others, and for life), there are three major requirements for it to be legally recognised. The
Marriage Amendment Act 2004 (Cth)​ e​ stablished that same-sex marriages were not recognised and reaffirmed that a marriage
is between man and woman, exclusion of all others, voluntarily entered (factors must NOT be doubted)

1. Marriageable age and parental consent​; males and females over eighteen years of age can marry without parental
consent, however if they are over sixteen but under eighteen, they can marry with the consent of a judge or magistrate
under certain circumstances. Exceptional conditions that can allow such young marriages include impending death,
financial security, and maturity, though pregnancy is not deemed a valid reason under the eyes of the law

Ex parte Willis (1997): ​Magistrate of the Family Court ruled that couple could not marry due to not being ‘exceptional’ and
unusual to justify acceptance of marriage due to being 17 and 9 months old however discovered she was pregnant

2. Notice of marriage​; a couple must complete a Notice of Intended Marriage form and give it to the celebrant who will
conduct the ceremony 1-6 months prior to the ceremony for it to be valid. If one party has had a dissolved marriage, a
death or divorce certificate must prove this ​ ​ must give at least 18 months notice of intention to marry celebrant
through NOM ​ ​ approved celebrants: ​doctors, solicitors, police officers

3. Prohibited relationships​; to marry, the couple must not be too closely related by blood (ancestors, descendants, siblings)
or by marriage (step-siblings, step parents). However, uncles and nieces etc can marry

4. Valid marriage ceremony; ​2 witnesses 18+ ​ ​ parties to marriage reasonably believe witnesses are above 18 ​ ​ official
marriage celebrant to perform ceremony, parties must believe celebrant is authorised
5. Marriage certificate; ​issued by celebrant after ceremony is completed ​ ​ legal proof marriage was conducted according
to law ​ ​ parties + witness must sign marriage certificate and keep copy for official purposes and send to Registrar who
keeps it in the system for minimum of 6 years. This process makes the marriage licensed.
6. Void marriages; ​invalid if: ​bigamy, consanguinity, duress or fraud ​Di mento v Visalli​, not marriageable age, same sex,
ceremony by unauthorised celebrant​ ​ ​court able to null marriage, in the eyes of law is deemed illegal
 Legal Studies: Family Law Summary Notes

Re Kevin (2001): ​The court held that it is the sex of a person on their wedding day that determines whether the requirements
of a valid marriage are met. This allows for those who have gone through sex changes to get married and live life as a gender
of their choice.

Legal Consequences of Marriage

1. Consortium vitae:​ though not legally obligated, it is expected for husband and wife to mutually care and show affection
with one another, which includes sharing household duties ​ ​ law intervenes when spousal rights infringed or both have
not fulfilled responsibilities (sexual relations not automatic right) ​ ​ both remain faithful and emotionally/financially
supportive

2. Maintenance:​ Stipulates duty to support the other after ​Eliades v Eliades​. After divorce, maintenance will be sent to the
parent living with the child ​ ​ under FLA 1975 spouse obligated to provide maintenance if unable to support themselves
e.g. child is under 18 and mother has no job ​ ​ ​not automatic right and considered by the courts depending on financial
assets, property, income, etc.

3. Property rights:​ At divorce, it is usually split 50/50 unless there are children involved ​ ​ marriage does not change
ownership of property however may be altered considering F and NF contrib., property owned prior to marriage remains
in hands of owner

4. Contract/Agency:​ Spouses are generally not responsible for the debts of the other unless one earns much more than the
other ​ ​ only when breakdown occurs that court make orders of altering property interests ​ ​ spouse not usually
authorised as agent in contractual situations

5. Wills: ​Generally entire property goes to remaining spouse or any children ​ ​ other family members may also inherit if no
valid exists such as siblings ​ ​ S
​ uccession Act 2006 ​(now allows de facto spouse, child, grandchild, former spouse or one
of close relation to apply for provision order)​ ​ ​ intestacy: die without valid will (​Succession Amendment (Intestacy) Act
2009 (NSW)​) ​where state given power to govern intestacy. Children may challenge will of parents in ​McCosker v
McCosker

Alternative family relationships (regulated by state legislation however marriage dealt with by federal)

Type Characteristics

Aboriginal and Torres Strait Islander Peoples’ Customary Law ● Entered into according to tribal custom ​ ​ marry
according to kinship, clan and moiety
● Not married according to rules set in ​MA 1961 (Cth)
​ treated as de facto relationships
● Decisions made by Family Court must be based on
lifestyle, culture and traditions of ATSI
● Little acknowledgement of traditional roles of men,
women and children if unions fully recognised/ legal
recognition would mean that ATSI marriages
moulded into European marriage and divorce ideals

Single-parent families ● Many non-legal responses assist single-parent

families such as ​Lone Fathers’ Association
 Legal Studies: Family Law Summary Notes
● 16% of total households in 2006 ​ ​ growth in recent
years
● Married couples dropped from 98% in 1946 to 72%
in 2001
● FLA 1975
- Increased divorce rate/govt. assistance
- Unwed mothers accepted in society
- Financial independence of women
- May face difficulties in accessing legal advice,
pursuing rights in court and obtaining adequate legal
protection

Blended families ● According to ​ABS a​ pprox. 70% of families were

blended
● Married or de facto couple with children from
previous relation whom become stepchildren
● Law treats spouses in blended family according to
marital status
● Stepfather/mother not legally responsible for children
or have same right of discipline as legal/natural
parents
● Step wanting to adopt must apply to Family Court
and must have been living with child at least 5 years
old for 2 years under ​Adoption Act 2000 (NSW)
● No automatic claim to property if step parent dies
intestate and must apply for provision order

Same-sex relationships ● Homosexuals were not recognised by law until 1999

after the amendment of ​De Facto Relationships Act
1984 (NSW) ​ ​ Property (Relationships) Act 1984
● Undergone various reforms where in 2003, NSW,
QLD, VIC, WA, Tasmania and ACT recognise
same-sex couples in superannuation, hospital rights,
property settlement, taxation
● Majority of states commenced the ​Family Law
Amendment (De Facto Financial Matters and other
Measures) Act 2008 (Cth)
● Shepherd v Shepherd: ​difficulty in applying statute
law written with heterosexual couples

Polygamous relationships ● Determined by ​Hyde v Hyde and Woodmansee

● Recognised in Muslim countries however not
permitted in Australia as it is a monogamous society
● Party to marriage in another country can apply for
divorce, property settlement, parenting others, etc.
● Any other wife/husband is treated as de facto
 Legal Studies: Family Law Summary Notes
● Other wives treated as de facto or mistresses

De Facto relationships ● Were previously not given any rights due to being
seen as immoral ​ ​ man and woman live together as a
bona fide domestic relationship ​without being legally
married
● Based on various factors as categorised by the ​Roy v
Sturgeon (1986) ​ ​ ​duration of relation, property
ownership and use, existence of sexual relationship,
F/NF contributions, etc.
● 1971 – 0.6% couples grew to 15% in 2006
● State and federal law relevant to de facto
● Family Law Amendment (De Facto Financial Matters
and other Measures) Act 2008 (Cth) – ​helps in
dealing with separation and division of property and
children
● Status of Children Act ​children applies to children
from de facto
● Professor Parkinson of USYD – ​claims that de facto
relationship boundaries are expanding and this is
paving the way for a redefinition of marriage

Legal rights and obligations of parents and children

o Rights of child are paramount in any decision regarding family law ​ ​ most governing children are at state and territory
level only
o Byron’s Law 2001 ​includes if a foetus is killed in car accident – can be presumed guilty of murdering child that is not
born
o Important legislation: ​Children and Young Persons (Care and Protection) Act 1998 (NSW); ​responsibility of DoCS and
others to protect and care for those at risk of harm or abuse
o CP (OR) A 2000 (NSW); ​Release of sexual offenders of children to police to protect
o Status of Children Act 1996 (NSW); ​rights of ex-nuptial children treated same as within marriage including property

There are five legal responsibilities of a parent:

1. Providing food and shelter
2. Access to education: Education Act 1900
3. Medical treatment
4. Providing discipline: Must use reasonable force, and disallows striking the head or neck or a closed fist
5. Protecting children from harm and exposure to illegal activities

Re Marion (1991): ​Marion was 13 years old and had intellectual and physical disabilities. Her parents applied to the Family
Court for her to have a hysterectomy in the hope that this would relieve the stress of menstruation. It eventually made its way
up to the High Court, which held that the parents would not authorise it without a court order.

If a parent fails to provide these basic necessities, it may result in criminal prosecution. DoCS will investigate and remove
parental responsibility, enforce parenting classes, or enforce orders.
 Legal Studies: Family Law Summary Notes

SYLLABUS – ‘learn to’ ​ ​ explain the legal rights and responsibilities including those derived from​ ​Int. Law
o Articulated and protected by The ​Children and Young Persons (Care and Protection) Act 1998 (NSW)​ ​and international
UN document ​CROC ​(Convention of the Rights of a Child) 1989 (ratified 1990) aim to consider the best interests of
the child to prevent violence, discrimination, exploitation and neglect
o As a result the ​Human Rights Equal Opportunity Act 1986 (Cth) ​(Seen and Heard report)​ ​and AHRC can hear
complaints regarding child abuse
o Implementation of CROC principles are left to jurisdiction of state government e.g. ​Article 12: ​right to express opinions
and for these to be heard, ​Article 2: ​enjoins state to prevent discrimination or punishment for beliefs
o Includes: ​non-discrimination; right to life, survival and development; right to views expresses and respected, etc. ​
arrest is last resort substituted by diversionary programs recognised in state and federal jurisdictions
o Not binding to courts and commonwealth has left implementation of CROC up to discretion of state governments

Rights and Obligations

o Name and nationality: ​child born in AUS must be registered with ​Registrar of Births, Deaths and Marriages ​ ​ ​may
result in imprisonment or fine
o Gives child legal name or hyphenated surname containing both surnames
o Under ​Australian Citizenship Act 1948 (Cth) ​ ​ child born in Australia is automatically an Australian citizen if one
parent is citizen or PR
o Care and control: ​children have right to know and be cared for by both parents, regular contact with both parents and
other significant people ​ ​rights apply unless contrary to best interests ​ ​ failure may lead to children being taken away
by ​DoCS, etc.
o Parents have responsibility to control child and responsible for child’s behaviour under ‘duty of care’ principle for
biological, ex-nuptial and adopted children ​ ​ parents pay for damages or harm
o Under ​Children (Protection and Parental Responsibility) Act 1997 (NSW) ​ ​ ​police have power to take children under
15 if at risk of criminal behaviour; courts also have power to bring parents of child found guilty of an offence and must
take part in the court process to ensure their child will meet the sentencing requirements
o Education: ​Parents obliged under ​Education Act 1990 (NSW) ​to send children to registered school or other approved
home education arrangements for their children from 6 until leaving age
o Child may be schooled at home upon exemption from BOS grant and according to syllabus ​ ​ parents expected to
encourage participation in school but have right to choose where education is completed
o Amendments to EA 1990 made in 2010 where NSW students required to complete school to year 10 and continue
fulltime education, training, paid employment, or combination​ until 17
o Medical treatment: ​Parents wholly responsible for medical needs under 14 regardless of religious obligations ​ ​ parents
must supply appropriate medical supervision and cannot refuse operation if in the best interests of child ​ ​ after 14
doctors expected to disclose info from parents if child wishes to conceal medical attention
o Children and Young Persons (Care and Protection) Act 1998 (NSW) ​ ​ ​gives doctors power to carry necessary medical
treatment without parental consent through approval of FC for various treatments such as ​sterilisation, termination of
life, organ donation, etc.
 Legal Studies: Family Law Summary Notes
Adoption
o Process of transferring parental R&R ​ ​ ​prospective father 18 years older, prospective mother 16 years older
o Adoption Act 2000 (NSW)- ​represents substantial reforms to law where adopted children have same status and legal
rights as child born into marriage
o Adoption Amendment Act 2010 (NSW)- ​allows for same-sex parents to adopt children
o Requirements and process: ​people over 21 (couple or single person) can adopt child; married/ de facto at least 3 years
of relationship ​ ​ must be fit and proper parent, able to fulfil responsibilities through caring
o Biological parents must give consent – parents of newborn child cannot consent to child’s adoption until 30 days after
the birth ​ ​ child must consent to his or her own adoption if over 12 ​ ​ child’s culture, religion, race also considered as
well as given name, identity etc,
o Relinquishing parents may also nominate relative to adopt their child but criteria must be met ​ ​ prospective parent
must be of good repute, fit and proper
o Registrar of Births, Deaths and Marriages ​issue new birth certificate with adopted name as well as family details, once
this process is complete bio have no legal rights over child
o Adoption Information Act 1990 (NSW)- ​possible for adopted people over 18 and biological parents to contact one
another
o Biological parents and adopted child can lodge a contact veto with DoCS ​(fine/ imprisonment)
o Adoption Act 2000 (NSW) ​also allows adoption plan (open adoption) dealing with issues such as exchange of
information, contact, financial, cultural upbringing, etc. ​ ​ Must be approved by SC
o Fewer people adopt due to advanced technologies such as IVF ​ ​ placed on waiting list
o Overseas adoption ​ ​ ​complex and tightly controlled ​ ​ ​Hague Convention on Protection of Children and Co-operation
in respect of Intercountry Adoption 1993 ​ ​ ​adoption formally recognised in any country which has signed the
convention
o In NSW must apply with ​DoCS ​for Intercountry adoption, child subject to migration medical checks and granted PR in
AUS if everything okay
o Adoptive children may apply for supply authority containing info on birth parents over 18

News article:
o SMH (November 2013) – ​‘History must not repeat in adoption laws’
o Kristy Needham says legislation introduced in parliament last week to make it easier and faster for foster parents to
adopt children as a way to bring stability to the lives of children at risk
o Open adoption also enshrined where child could maintain contact with birth parent
o For the first time under reforms, govt. can demand women to go into rehab programs or leave an abusive relation or
court may remove baby at birth
 Legal Studies: Family Law Summary Notes
2. Responses to Problems in Family Relationships
Divorce
o Legal dissolution of marriage governed by ​Family Law Act 1975 (Cth)​ ​ ​ one ground for divorce to prove there has been
an irretrievable breakdown of marriage to extent where no possibility of reconciling ​ ​ must live separately and apart
for period of 12 months before applying
o Is a legal process where parents must decide where and with whom child (ren) will live thus these are two separate
elements

No fault concept:
o Before FLA 1975 spouse who committed adultery, desertion, violence, insanity, etc. was seen as party at fault ​
decision of property division and care of children should take into account who was to blame for failure of marriage ​
seen recent changes with amendments and reforms in FLA where concept of fault is returning to divorce proceedings
relating to consideration of family violence for property and care of children
o This concept was taken away to encourage couple reaching amicable resolution

Separately and apart: ​three issues in proving irretrievable breakdown of marriage

Intention: m
​ ust be intention to end marriage to live separately and apart for 12 months​ ​ purpose of divorce

Separation under one roof: ​Couple may be living separately while still occupying house together so long as they have formed
intention to separate ​ ​ may be sufficient proof of irretrievable breakdown of marriage ​ ​ court will look at evidence such as
separate social lives and bedrooms

Kiss and make-up clause: ​may try living together again for one period up to 3 months under FLA ​ ​ if this does not work out, no
need for twelve-month separation period to restart ​ ​ chance to get back together

Marriage of less than 2 years: ​married for less than two years receive ​compulsory ​counselling before divorce is granted

Divorce orders: ​court decides marriage is unsuccessful and grants divorce order where an interim order occurs ​ ​ couple is
divorced but each party may not remarry until order is made final one month later ​ ​ one month period gives parties last-minute
chance to change minds

Divorce cases:

Kane v Kane (2009)

SMH article: ‘2010 most expensive divorce: Adelaide woman spent $10mil and husband spent $26mil overall for the case

Legal Consequences of Separation

Children (last resort only)

o Decree nisi: ​Family Court Order signalling termination of marriage
o Decree absolute:​ ​final decree of the dissolution of marriage
o Laws regarding children maintained in FLA however changed in the ​FLA Reform Act 1995 (NSW)
o Under FLA parents have long term responsibility for care and welfare of children regardless of being married or not ​
emphasis on child wellbeing
● Section 60CC outlines the two primary considerations when determining ‘best interests’ ​(paramount consideration)​: the
child’s right to maintain a meaningful relationship with both parents; need to protect them from physical and
psychological harm such as FV; parents’ willingness and ability to continue relationship; maturity, age, gender, lifestyle
of child and parents
● Separating parents are required to attend family dispute resolutions, and follow a ​parenting plan​. It is normally a
voluntary agreement and parents are compliant, though if they cannot reach an agreement, the court will enforce a
 Legal Studies: Family Law Summary Notes
parenting order​ that deals with matters including the child’s living arrangements, parental responsibility until adulthood
(CROC), maintenance and communication with each parent (only made if parents cannot agree about care
● Usually arrangements may be: one week on, one week off; weekends with one, weekdays with one; every second
weekend with one parent and rest of time with the other
● ​Since 1988 any person with interest in child including grandparents may apply for court order

CASE: ​Shakir v Shakir (2014)

● Two week cycle parenting plan
● Liberal telephone communication
Article:
- According to LivFamilyLaw, changes to the Child Support regime are based on research on costs of children and
intended to reflect community values
- New child support formula reflects costs of children and importance of balancing family needs
- More fair, transparent and focused on best interests of children
- Reduce conflict between parents about arrangements, encourage SPR and ensure child support paid in full and on time

Ex- nuptial children

o Were previously considered inferior and equated with ‘illegitimacy’
o Status of Children Act 1996 (NSW) ​gives equal status to children born in and out of marriage extending to rights of
property upon death of parent. Example of the way law is reformed in order to reflect society’s changing moral and
ethical standards

Equal Shared Responsibility

o In accordance to CROC, law focuses on shared parental respons. Rather than parental rights and also emphasise child
residence rather than ownership or rights
● Presumption of child’s best interest since 2006 for parents to have shared responsibility by consulting one another for
issues such as child’s ​religion, education, name and cultural upbringing ​ ​ ​presumption can be rebutted where
responsibility may not be in child’s best interest – FV
● Judge decides whether to grant equal respons. Or substantial and significant time with child
● Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ​ ​ ​criticised for not dealing adequately with
family violence, exposing child victims of abuse
● Provisions in act: ​orders of costs against anyone making false allegations suggest that allegations regarded with
suspicion, does not make distinction between shared care/responsibility

Child maintenance
● Parents have duty to maintain children until 18 ​ ​ m
​ aintenance = payment made by person to help contribute to care
and welfare
● Child Support Scheme 1988 ​collected by ​Child Support Agency (Act 1989) ​developed to prevent poverty with adults in
paying M
● CSA ​responsible for determining M is paid by the l​ iable parent
● Factors taken into account: ​income, age and number of children, whether LP has care of children at least one night a
week

CASE: ​Smiths v Fields (2012)

● 60-40 property division

Property
● If the separating couple reach an agreement to the allocation of their property, bank accounts, companies, partnerships,
shares, etc., they can apply to the family court for a consent order
● Usually decided within year after divorce is formalised to allow matters to be settled
 Legal Studies: Family Law Summary Notes
● When deciding how to divide property court looks at individual factors – ​4 step process​:
o Whether each party has care and control of child under 18
o Financial and non-financial contributions to the property (domestic duties are viewed as equal as established
by the ​[​Marriage of Kemp​ (1976)]
o Present and future needs of each party including income, earning capacity and care of children
o Proposed division is just and equitable in all circumstances
o Other contributions such as inheritance, family home or working for family business
● Courts aim to be as fair as possible, and have this power under sections 75 and 79 in the Family Law Act
● Court may also order to attend conference to reach fair and equitable decision

The ​Hague Convention on the Civil Aspects of International Child Abduction (1980)​ aims to discourage international parental
child abduction. Some parents, unwilling to share their child, flee to another country with them. Though the convention is not
always effective (non-Convention countries/difficult to locate), it allows families to seek the return of the child and encourages
the relevant country’s courts to resolve disputes regarding the child.

Superannuation
● Superannuation difficult due to financial and non-financial contributions both parties have made to superannuation
entitlements
● Coghlan v Coghlan (2005) ​Family Court decided superannuation be treated separately to other property and courts
must deal with two separate pools by applying four step process to both

Property division and the no-fault concept

● NFC part of property division in that court may decide whether party has made negative contributions to the marriage
​ ​Kowaliw v Kowaliw ​– financial losses to property caused by negligence, alcoholism and gambling of one party did not
have to be shared by other
● Parties obliged to attend conciliation conference with ​Family Court Registrar (lawyer specialised in property and
maintenance playing the role of mediator) ​ ​ ​help them come to an agreement of consent order separating individuals
as well as property allocation
● Family Law Amendment Act 2000 (Cth) ​helps make binding decisions and can be entered ​before, during or after
marriage ​ ​ ​must be in writing and signed, certificates confirming independent legal advice received by both parties ​
can be terminated or varied ​ ​ decide on settlement, how property is divided after marriage is ended and establish who
owns what property

Financial Agreements
● Arise to protect property rights and include guidelines for division of property, debt and other financial concerns in the
event that relationships end ​ ​ can be made as pre-nuptial agreements, during or at the end of marriage
● Includes prescribing property that is and is not included in settlement, relating to how property is to be divided and who
owns what
● FLA Amendments 2000 allow Family Court to recognise them as binding financial agreements with de facto also having
binding settlements for property in separation

In the article “Signed, sealed and delivered” (Courier Mail, 01/06/2001), the couple signing a pre-nuptial agreement
comment that “what they bring to the marriage should be protected for their children from previous marriages”, and Robyn
Lister says, “We’re not naive about what can happen and having both had very unfortunate experiences with the Family
Law Court... we want to avoid that at all costs.”

Dealing with Domestic Violence

 Legal Studies: Family Law Summary Notes
Domestic violence is any act, whether verbal or physical, of a violent or abusive nature that takes place within a domestic
relationship. It can be caused by ​cycle of violence theories ​(occurs if witnessed as a child and can tolerate violence, thus the cycle
is perpetuated)​, structural theories ​(response to external pressures such as poverty and alcoholism) ​and
manifestation-of-male-supremacy theory​ (men raised to be aggressive and dominating and use violence as a response to anger or
threat) ​ ​ can be physically, verbally, emotionally, financially, psychologically

65% separated mothers reported physical/emotional abuse; 17% of fathers reported concern for safety of child – Australian
Institute of Family Studies (AIFS)

o Attitudes to Violence Against Women Survey 2006 s​ howed yelling, repeated criticism, denial of money and control of
partner’s social life were seen as less serious ​ ​ DV excusable if temp. Anger ​ ​ women make up claims to improve case
however women and children are victims
o Female percentage: ​rose from 236 in 1995 to 607 per 100 000 in 2007 according to ABS
o Children:​ CROC emphasises that no violence should be done against children, neglect or maltreatment

Main legal responses to DV:

o Apprehended Violence Orders and Apprehended Domestic Violence Order
o Criminal charges
o Family court injunctions and other orders

o AVO​’s imposed by Local Court through ​Crimes Amendment (Domestic Violence) Act 2007 (NSW)​ restricting behaviour
of defendant for period of time and are the most commonly used legal weapon against DV ​ ​ can be obtained if victim
can prove on balance of probabilities that he or she on reasonable grounds believes they are in fear ​ ​ over 16/ whole
families may be protected with one order
o Takes effect after court hearing and approval and remains in force for 12 months ​ ​ not charged with criminal offence
unless breached
o Interim AVO​ obtained over telephone from magistrate up to 28 days and issued if police are satisfied that person
seeking order is at immediate risk of harm
o Provisional AVO ​remains in force until court hearing and is served on defendant through means such as detaining the
accused
o Restrictions: ​assaulting/threatening the victim or any person who has domestic relation with victim,
approaching home, possessing firearms, stalking/intimidating
o Police power:​ search and seize firearms, suspend firearm licence and seize from one subject to AVO ​ ​ apply
regardless of which state jurisdiction the victim is under

ADVO​ ​ ​ protect against behaviour from those in or have been in domestic relation​ ​and​ ​Apprehended Personal Violence Orders
(APVO)​ ​ ​ protected person and defended are not or have not been in personal relationship

o Introduced by the ​Crimes (Domestic Violence) Amendment Act 1982 (NSW) ​ ​ O ​ riginally this was limited to married or
de facto spouses, though in 1988 it was amended to include ex-partners, family members, boyfriends, and persons
living in the same household
o Victims can apply to the Local Court for an ​ADVO
o The government has introduced a program that requires police to take photos of the victim’s injuries to add weight to
ADVO applications
o Under the ​Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)​ the definition of family was
modified to include extended families, to improve coverage of potentially violent domestic relationships
o Police officer has duty to make application for ADVO if regarded as domestic offence on suspicion however
not for AVPO
o Chamber magistrate cannot refuse ADVO but can for AVPO
o Protected person’s home address must not be included in ADVO
 Legal Studies: Family Law Summary Notes
o If ADVO & AVPO breached ​ ​ can be arrested immediately and found guilty of criminal offence ​ ​ maximum
penalty is $5500 and/or 2 years imprisonment
o No presumption in favour of bail where an AVO has been breached by an act of violence under amendment to
Bail Act 1978 (NSW) in 2013 ​ ​ Bail Amendment Act 2013 (NSW)

Main legal responses to DV ​ ​ effectiveness

o Educational campaigns raise community awareness of domestic violence and society has understood that it is no longer
a private issue
o ADVO’s are important means of reducing incidence of domestic violence and accessible form of protection supported
by criminal law if they are breaches
o Crimes (Domestic and Personal Violence) Amendment (Info and Sharing) Bill 2013 – ​sharing between public sect or
agencies and non-government agencies to facilitate access by victims to support services
o ARTICLE: SMH: ​‘Domestic Violence Scheme expected to reduce threats to women’ (June 2014)
o National Domestic Violence Order Scheme ​provides automatic nationwide recognition of court orders that try
to keep victims of violence safe from further harm

Legal Response Characteristics Advantages Disadvantages

Apprehended Violence Orders - Already discussed Flexible, quick and Breach hard to prove
- In 2007, 23,000 inexpensive Police reluctant to institute
ADVO’s were issued Protect victim in the future proceedings for AVO even
in NSW courts Proceedings instituted by when required
police or victim through Piece of paper insufficient to
however 10 000
chamber magistrate eliminate strong mens rea
breaches Proof is on civil SOP ​ ​ easier Lead to increased violence
to prove than criminal case, due to resentment
perpetrator is guilty only if
breaching order
Criminal charges Crimes (Domestic and Acknowledges assailant Focuses on 1 incident without
Personal Violence) Act 2007 committed criminal offence looking at history
​ crimes between people in Victim can lay charges if Standard of proof is beyond
domestic relationship and are police will not do so reasonable doubt and harder
made illegal Can lead to police applying to prove than an AVO
Common: ​assault, malicious for AVO if offence recognised Some police and victims
damage, stalking and as dvo reluctant to pursue charges
intimidation resulting in criminal
Assault: ​charge perpetrator - ​Nannette May​ case in 2009 conviction
under CA 1900 if taken place brought about NSW head of
​ must be proven beyond Domestic Violence to
reasonable doubt does not encourage women to open up
include harassment about domestic violence to
Stalking/Intimidation: encourage them to lay
separate offence under criminal charges according to
Crimes (Domestic and ABC News
Personal Violence) Act 2007
​ ​stalking ​includes following,
spying, frequenting place
where person lives and works
​ ​intimidation ​is telephone
calls, harassment or threat
Considered offence if
intention to incite fear or
threat safety
 Legal Studies: Family Law Summary Notes
Maximum penalty: ​50 penalty
units + 5 years I

Family Court Orders Under FLA and ​Property Injunctions restrict wide range Injunctions harder to enforce
(Relationships) Act 1984 of behaviours as does AVO than an AVO

Injunctions: ​prevents someone Deal with violence as part of Not immediately obtainable
from doing something or larger problem Women reluctant due to fear
orders them to do something Parenting orders recognize of viewed unfavorably by
Obtained through Family effects of family violence on court
Court and operate as AVO children
more difficult to enforce Only effective if they are
Similar penalty for breaches policed
​ sought when couple is
already before the court ABC News: ‘Breach on
because of divorce Restraining order, orders
proceedings, etc. rethink’ – ​inadequacy of law
Family Violence and parenting in protecting victims such as
orders: ​Under ​Family Law Nannette May from harm
Amendment (Shared Parental
Responsibility) Act 2006
(Cth) ​ ​ must consider family
violence when considering
parenting order ​ ​ refers to
AVO or similar order where
Family Court must ensure
future of child is consistent
with family violence orders
--> may be changed to
parenting plan

In 2003, family court orders

were questioned for
effectiveness due to man
killing two children and de
facto wife’s father in
Wilberforce NSW – ​ABC
News

SYLLABUS – ‘learn to’ ​ ​ effectiveness of law in protecting victims of DV

o Ensure: ​ADVO’s are quick, easily accessible, inexpensive, and fully supported by criminal law. However, it has also been
argues that they do little to deter persistent offenders, and they are only effective if policed. Laws have slowly evolved
in response to circumstances not considered before
o Fact that 22 000 AVO’s issued annually shows victims willing to prevent recurrence
o Classification of some offences as ‘dvo’ means women may be protected
o 2010 establishment of ​Domestic Violence Death Review ​may reduce murders stemming from domestic violence
o Family Law Legislation Amendment (Family Violence + Other Measures) Act 2011: ​changed definition; added assault,
stalking, derogatory taunts, death/injury to an animal, threat of death as an effective means to tighten control on level
of violence in Australia
 Legal Studies: Family Law Summary Notes
o Crimes (Domestic and Personal Violence) Amendment Bill 2013 – ​gives police power to issue on the spot AVO’s

o Limit: ​extent of DV shows legal measures do not prevent

o Attitudes minimise seriousness of DV making difficult to prevent DV from occurring
o Fear of negative responses from Family Court when applying for parent orders make some women reluctant to raise
issues of family violence
o DV related homicides have increased and legal responses have been inadequate
o Laws for domestic violence have slowly evolved such as B
​ attered Women’s Syndrome w ​ as only applied to heterosexual
couples however now extended to de facto and homosexuals
o States have introduced mandatory counselling for domestic violence perpetrators with penalties
o According to ​Don Weatherburn, director of BOCSAR states ​“AVO’s are not a magic wand”

The roles of:

Courts and Dispute resolution

Courts
o The Family Court of Australia was established under FLA 1975
o Deals with complex issues regarding marriage, divorce and children (inc. child abuse), financial matters ​ ​ provides and
legally binding resolution to such matters
o However the adversarial nature of courts intensifies the conflict, and thus mediation aims to reduce litigation to resolve
such disputes ​ ​ determine parenting plans

CASE: ​B v B (1997)
o Decided that access to child would depend on which parent was the primary caregiver
o Court used discretion to decide that child’s best interests would be to go with mother interstate and allow father
non-custodial rights
o Evidence of dispute resolution by Family Law Courts

CASE: ​Wylie v Wylie (2014)

o Father had rights to child residence due to suspicion of mother having mental illness

o SMH article: ‘Father’s agony at 15-month wait for family court judgement
o Father waits 15 months to hear whether Family Court accepted ex-partner’s false allegations of physically and sexually
abused 10-year-old son
o Judge David Collier says animosity between couples that enter system was more intense than ever
o Presiding judge’s sense of urgency was evaporated

o ABC ARTICLE: ‘Family Court Chief Justice laments system failures’ (March 2014)
o Cuts to legal aid are causing individuals to represent themselves – may be complicated in domestic violence case where
cross-examination may be too confronting
o Luke Batty case: ​mother represented herself and claimed husband had mental health issues however did not have
capacity to bring the right evidence, thus putting child at risk

Federal Magistrates Court: ​(NOW CALLED THE FEDERAL CIRCUIT COURT)

o Federal Circuit Court of Australia Act 2001 – ​rules on fair work and resolving disputes through financial and
non-financial contributions, court proceedings aiming for equality and protection of human rights through consideration
of children
o Hears matters relating to divorce, division of property and children
o Refer issues to counselling services and also file divorce ​ ​ does not hear nullity issues or adoption
 Legal Studies: Family Law Summary Notes
o Reconciliation is the priority and paramount recommendation before any decisions and deal with less complex issues
o The ​Family Law Act 2000 (NSW) a​ lso encouraged the court to create orders with children as the paramount
consideration
o Skynews Article (21​st​ Oct. 2014): ​11 month-old Feyrouz determined unauthorised maritime arrival and taken back to
Nauru as a decision of the Court

CASE: ​Pitman v Bond (2014)

o Family violence resulting in children placed in the mothers’ residence

CASE: ​Symons v Symons (2014)

o Children split due to conflict as well as a 50-50 property split

Children’s Court:
o Children and Young People (Care and Protection) Act 1998
o Hears cases relating to child care and protection brought by Community Services
o Determines issues in the best interest of the child and provide support services for parents and children to resolve
disputes

Dispute Resolution
o Family Law Courts provide dispute resolution ​ ​ ​counselling, mediation and conciliation ​to help find suitable agreements
for care of children, maintenance and property division
o DRM provided by Family Relationship Centres and other community-based dispute organisations
o Most issues settled through mediation
o Post-separation parenting programs: ​couples whose issues affect parenting responsibilities and helps in identifying
issue, formulating options and considering alternatives
o Mediation: ​mediator listens to dispute and helps to minimise differences and reach agreement
o Reconciliation counselling:​ healing focus ​ ​ F​ amily Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ​
Family Relationship Centre ​provide services for issues such as care of children ​ ​ parents must attempt to resolve
conflict before applying to court

Advantages of dispute resolution mechanisms Disadvantages of dispute resolution mechanisms

Cheaper Depends on equal bargaining power between parties and
limited due to imbalance because of uneven economic
circumstances to access effective legal assistance or due to
family violence
FLA (SPR) A 2006 (Cth) ​dispenses with requirement for
dispute resolution if risk of violence
Power imbalance hidden making mediation process less likely
to result in fair solution
Quicker Mechanisms result in lack of court scrutiny and parties’ rights
are not safeguarded to same degree as court hearing
Solution reached is best for all parties concerned due to mutual People use dispute resolution in inappropriate circumstances
agreements to prevent further disputes due to being cheaper

Non-government organisations
o NGOs often provide support for families such as provide mentoring, support, counselling, relationship advice, assistance
in managing conflict and emotional support for children as their parents separate
o Many of these organisations are dependent on donations and goodwill of volunteers
o Charitable: ​Wesley Mission ​and ​Salvation Army ​ ​ ​provide physical support, emergency accommodation, food and
household goods, as well as emotional support
 Legal Studies: Family Law Summary Notes
o Community-based: ​non-profit including ​Relationships Australia ​ ​ ​provide relation support services, family dispute
resolution and early intervention services funded by government
o Women’s refuge and others: ​Assist women experiencing domestic violence by providing emergency accommodation and
advice
o Legal Assistance: L​ egal Aid NSW

Lobby Groups
o Pressure governments to reform the law ​ ​ voice people’s concerns ​ ​ representations to governments
o Stage rallies and protests and respond to govt. inquiries into operations of law
o Domestic Violence Committee Coalition: ​formed in 2006 with aim of drawing attention to increased domestic violence
cases and deaths in NSW ​ ​ advocate change
o Australian Marriage Equality: ​Pressure governments for same-sex couples to have same rights as heterosexual couples
​ recognise gay relationships
o Religious organisations: ​Australian Federation of Islamic Councils and Anglicare ​ ​ oppose same-sex on religious
grounds and represent values of community ​ ​ evidence at the NSW Legislative Council’s Inquiry into adoption by
same-sex couples

The media
o Draw attention of the public to perceived injustices in the system
o Publish views of particular lobby groups and criticises government policies to encourage reform
o Highlighting abuse women go through has led to changed in social attitudes against violence in the home
o Technologies such as websites and brochures used by courts to inform about rights and obligations
o Family Law Courts embrace new media technologies by providing information about rights and obligations, self-help
guides, brochures and forms
o It Stops Here Campaign ​began campaign using media to urge women being abused to report crime to the police ASAP
after ​R v Gittany (2013) (NSW)
o May also exaggerate issues and cause compassion fatigue

Domestic Violence Homicide Review

o SMH ran several pages of articles with pictures and stories of domestic violence homicide victims and emotive
headlines such as “​ Shameful secret of our family murder epidemic”
o Media campaign combined with renewed calls for establishment of DVHR Panel arising as result of death of ​Melissa
Cook ​ ​ shot fatally by estranged husband in 2008
o Media’s frequent and high coverage of domestic violence deaths has major impact in making the ​NSW Domestic
Violence Death Review Team in 2009

Family Court and Domestic Violence

o Family Courts Violence Review: ​report by Prof. Chisholm commissioned in 2006 to review reforms to FLA 1975 after
death of ​4-year-old Darcey Freeman thrown off West Gate Bridge 2009
o Media coverage of event assisted in the government decision to review legislation

SYLLABUS – ‘learn to’ ​ ​ examine the role of non-government organisations and the media in relation to family law

o Roles of non-government organisations: ​to provide advice and assistance to families experiencing problems such as
victims of domestic violence and to lobby for reforms. Many of these use media to great effect and focus on vulnerable
parties to raise issues

o Roles of the media:​ to publicise public events and issues, which can have effect of pressuring the government to change
the law ​ ​ play significant role in encouraging informed debate about need for legal changes such as the A
​ ustralian
 Legal Studies: Family Law Summary Notes
institute of Family Studies (AIFS), ​highlighting need for change in particular areas of family law. Also, G
​ ay and Lesbian
Right Lobby (GLRL) ​is aired through the media to raise issues with same-sex marriages
o Mardi Gras Sydney ​uses SBS News and 2DayFM

SYLLABUS – ‘learn to’ ​ ​ evaluate the effectiveness of the law in achieving justice for parties involved in relationship breakdowns
o Identify parties involved, discuss factors which enhance and limit, effectiveness of the law achieving justice

Parties involved Factors that enhance Factors that lessen

Parties to marriage Divorce easily obtained Some argue divorce is too easy to obtain
No one is to blame however FV taken and there should be other means to
into account for separation resolve the issue
Agreement about divorce encouraged to Sometimes one party is to blame causing
reduce costs bias as argument
Introduction of non-financial Women and children still treated
contributions led to greater equality for unequally after dissolution of marriages
women due to FLA not addressing contentious
issues relating to breakdown of marriage
Parties to de facto marriage Since 2009 property division rules apply Some feel de facto are immoral and
to de facto as well to make status and should not have same level of protection
effectiveness equal from law (property)
Some argue that if heterosexual want
same level, should get married
Parents 2006 amendments cause parents to have 2006 amendments used by some to
equal shared respons. lessen child maintenance payments
Family violence provisions protect FV detrimental to women causing fear to
victims report
Children More likely to have meaningful relations Allegations that FV insufficiently catered
with parents and others under 2006 for and children spend substantial time
amendments with violent parents
Rights favoured and emphasised 30% of children of separated parents do
Special courts for children with same not receive maintenance despite CSS
rights as adults however less severe

3. Contemporary issues of concerning family law

Recognition of same-sex relationships

Homosexual couples have only recently gained legal recognition; though face many other problems such as being
discriminated by insurance companies, and being denied the right to marriage, however are a state responsibility. Do not
have same protection because legal marital status remains single

Recognised as a fundamental human right in modern times and has led to social reforms. Largely have heterosexual rights
other than ​marriage and surrogacy. ​Some just want the removal of institutionalised discrimination and provision of legal
protections

Unlikely that the government will pass any same-sex laws in the near future therefore same-sex marriages remain void
research shows that majority of Australians would not have a problem with allowing same-sex to marry
 Legal Studies: Family Law Summary Notes
South Australian parliament due to debate and vote on issue of same-sex marriages in 2013 concern about where
Australian constitution will allow states power ​problem: ​Commonwealth Senate refuses to pass motion that would stop
Commonwealth from challenging states that pass same-sex relations

Legal Responses Non-legal responses

● In the ​Family Law Amendment (De Facto Financial
Matters and Other Measures) Act 2008 (Cth),
separating de facto homosexual couples are able to
bring property and maintenance matters to the Family
Court or Federal Magistrates’ Court
● Groups such as the Australian Marriage Equality and
● Changes to the ​Health Insurance Act 1973 (Cth)​ in 2008 Gay and Lesbian Rights Lobby have lobby the
allows same-sex couples and their children to register as government and media to address discrimination, legal
a family for Medicare and have the same entitlements rights and social equality
initiated through the ​Hope/Brown v NIB Health Fund ● Alex Greenwich ​president of the AUS Marriage Equality
organisation advocates for same-sex marriages and
● The Australian Human Rights Commission holds scrutinises Australian legislation in failing to adapt to
inquiries and gives recommendations to the changing values ​e.g. conducted poll to investigate
government regarding legislation that does not comply public opinion and over 50% had agreed to same-sex
with UN human rights treaties. In the report ​Same-Sex: marriage being legalised in Australia
Same Entitlements,​ they had recommended amending ● LGBT
federal laws to remove discrimination ● Remedies are never enforceable however place
pressure to make changes
● Assist in lobbying for law reform and enunciating case
● The federal government passed ​Marriage Amendment for reform thus leading to change through media
Act 2004 (Cth)​ reaffirming that marriage is between a ● No enforcement mechanism
man and a woman, reinforcing their opposition to
same-sex marriages
● The law has gradually been changing, though is hindered
by religious beliefs as seen when the government had
come close to fully allowing same-sex adoption in the
Adoption Amendment (Same Sex Couples) Act 2010
(NSW)
● Altered drastically in hetero and homosexual quality
however little prospect of same-sex in next 3 years
● Same Sex Relationship (Equal Treatment in
Commonwealth Laws – General Law Reform) Act 2008:
Eliminate discrimination in areas of medicine, social
security, child support, etc.

● T​ his is shown through the recent 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
● ‘NSW moves to legalise same-sex marriages’ SMH 2012
–N ​ SW suggested and applied the same-sex marriage bill
in NSW however was overturned by the Federal
 Legal Studies: Family Law Summary Notes
parliament stating that such changes may only be made
through the Federal Parliament
● ‘Gay couple Gordon Stevenson and Peter Fraser marry in
Australia under British Law’ –​ News Corp Australia June
2014 – tied marriage at a British consulate in Sydney;
nuptials however are meaningless upon leaving
consulate; considered pivotal step towards marriage
equality

Changing nature of parental responsibility

Previously, the law had focused on parental rights in a separation i.e. custody and control over their children, though this has
shifted to highlight parental responsibilities more than anything else. It focuses on shared parental responsibility, family
dispute resolutions, and toughening the definition of family violence.
 Legal Studies: Family Law Summary Notes
Parental responsibility in the ​Family Law Act 1975 ​in relation to child means duties; powers, responsibilities and authority are
shared. Reforms to family law focus on maintaining positive and supportive family structures even when parents separate, as
parents need to have access to their children in order to foster and maintain relationships

Legal Responses Non-legal responses

● Over time there has been enunciated expectations and

● Community institutions and nationwide organisations
legal duties of parents both on Commonwealth and
such as ​Relationships Australia​ can help separating
State level
parents negotiate their own parenting agreements
● The ​Family Law Amendment (Shared Parental
● Done through counselling, education and skills training
Responsibility) Act 1995 & 2006​ ​makes courts take
help parenting skills and assist in recognising negative
primary and additional considerations. Primary are the
gender issues
two main rights, whereas additional include the child’s
● Community-based reconciliation service promotes idea
wishes, parental financial abilities, nature of
of resolving conflict in family cases
relationship, etc.
● May be used to promote awareness of best interests of
● Such laws have equalised mothers and fathers and
child such as the case ​B v J (1997) ​where child residence
emphasised children’s rights to echo CROC
with mother resolved through healthy communication

● Children (Care and Protection) Act 1987 (NSW) ​ ​ ​help

● DadsLink ​is a group that focuses on fathers and their
protect children’s rights at state level and impose
relationships with their children
obligations
● Actions of NGO and media organisations raising
● Change to Child Support Agency rules encouraged more
awareness of respecting parental responsibility
equal shared parental responsibility but may not be in
child’s best interest to coincide with legislation
● Terminology changes in the legislation from ​‘custody’​ to ● Lone Fathers Association ​responsible for reforms in FLA
‘residency’​ to ​‘living with’ ​are intended to remove any in 2006 encouraging shared parental responsibility
notion of parents owning and totally controlling their ● Influential and persuasive used to inform and guide the
children ​ ​ ​‘contact’ ​replaced ​‘access’ ​(timing, duration law reform agenda ​ ​ not binding and cannot compel
and nature of contract by non-residential parent)​ ​ change however effective in the shared responsibility
‘best interests’ ​replaced with ​‘welfare’ ​ ​ THIS FORMS issue
PARENTING PLAN ● Use media to increase significance of parental
responsibility, which in turn may assist in dealing with
● Much of CROC agreements reflect values embedded in domestic violence issues through emphasis on
parents and children ​ ​ must ensure welfare and monitoring
development of children is guaranteed
● E.g. ​Status of Children Act 1996 (NSW) ​imposes
responsibilities on parents having difficulties

● Crimes Amendment (Child Protection – Physical

Mistreatment) Act 2002 (NSW) ​established importance
of parental responsibility to prevent use of corporal
punishment as a means of discipline
● Was effectively used when father in WoyWoy was
charged for using leather belt to disciple 5 year-old in
2010 causing bruising and injuries and placed on one
year good behaviour bond to implement legislation
 Legal Studies: Family Law Summary Notes

Surrogacy and birth technologies

Birth technologies
Birth technologies such as IVF and GIFT raise questions about paternity and the rights of inheritance. Laws relating to
surrogacy differ from state to state, creating consistency. Grey area in NSW as birth technology advancement may mean it is
no longer possible to presume identity of biological parents. Has many legal issues such as rights of inheritance and who has
control over the child.
Surrogacy
According to the law, woman who gives birth to the child is the mother and is still considered the legal and natural mother.
Note: The surrogate mother has exclusive custody rights; she cannot be forced to give up the child and also has a period of
reconsideration of initial intentions and natural father has no claim to the child

Legal Responses Non-legal responses

● Commercial surrogacy is illegal in NSW under the ● Surrogacy Australia – ​advocates; support surrogacy as
Assisted Reproductive Technology Act 2007 (NSW) an effective means for infertile adults to have children
though altruistic surrogacy (no reward payments) is and raise family; supports idea that surrogacy does not
largely unregulated. necessarily have any long lasting effects on the
● Costs of ART are quite high and law does not allow surrogate mother and child
equity and access ● Media –​ Article on ‘OnlineOpinion’ states there is no
● Inconsistencies between jurisdictions in Australia reduce absolute barrier to conception, which can be proved;
effectiveness of law and create inequalities between concerns about long term health risks for children of IVF
states for example NT does not have any laws regarding as a foundation of reason for strict laws pertaining to
surrogacy whilst commercial surrogacy is illegal in NSW surrogacy

● Various organisations and lobby groups have opposed

● The ​Status of Children Act 1996 (NSW)​ c​ reated the
surrogacy as it gives a means of same-sex couples
‘presumption of paternity’, which states that when a
raising children (they have desired surrogacy be
woman becomes pregnant by using donor sperm from
restricted to infertile heterosexual couples)
someone other than her husband, the man is presumed
● Express desire that surrogacy be restricted to infertile
not the father of the child born.
heterosexual couples ​ ​ argue that parents of the same
sex face difficulties ranging from problems
● B v J (1996) ​ ​ ​father refused to pay maintenance
accompanying small child of the opposite sex to a public
arguing that child was not his and that maintenance was
toilet to social stigma
sperm donor’s responsibility however court rejected this
● Conservative religious organisations use media to
argument under ‘presumption of paternity’ clause ​
oppose surrogacy and birth technologies and express
this may be altered through application to the courts
concerns of dehumanisation

● Re Evelyn (1998)​ ​ ​7 months after birth surrogate ● Less effective than legal responses as they have no
mother removed baby from prospective parents; law capacity for enforcement
could not do anything due to lack of enforcement ● Organisations and lobby groups utilise media to raise
mechanisms and lack of binding legislation issues of inequity and injustice
● Lack of organisations to support
● The law has been ineffective in clarifying the rights and
responsibilities of commissioning parents and birth
parents, the rights of the child, and removing
inconsistencies between states
 Legal Studies: Family Law Summary Notes
● There is much need for law reform as these
technologies challenge long-standing views on families
and parents
● Need to clarify legal rights and responsibilities of
commissioning parents and birth parents

Care and protection of children

All of Australia has passed laws regarding family violence (specifically the ​Children and Young Persons (Care and Protection)
Act 1998 (NSW)​ for NSW) in order to address child abuse and neglect. According to the NSW Ombudsman to the Wood
Enquiry, number of “at risk of harm” reports have been steadily increasing since 2006.

Understanding of protecting children has increased requiring guidance, shielding and gradual increases in autonomy, which
increases the onus on parents

Legal Responses Non-legal responses

● Certain professionals are required to report to ​Family
and Community Services ​if they suspect child abuse, ● Organisations such as the ​Salvation Army​ provide
and a caseworker will make an assessment to determine extensive support and educational services to children
the extent of risk. Police and representatives from the in need e.g. child care centres, counselling services,
NSW D Health will protect the child emergency housing
● Police have power to decide that there is evidence of a ● Utilise media to raise issues of inequity and injustice
crime and may arrest suspect accordingly ​ ​ child ● Bodies listed may also make suggestions for law reform
assigned to caseworker and receives medical attention and can act to inform law reform debate nationally
● In 2007, more than 150 children who has previous been
reported to Community Service died at the hands of ● Kids Helpline​ – counselling service for young people
their abusive parent or carer between 5-25 years offered by phone, email and over
● Dwindling financial resources and staff cuts have left the the web ​ ​ help with relationship, drug and alcohol
Department of Community Services unable to abuse, depression, etc.
adequately protect and support families of victims of ● ‘​Big Rise in child abuse reports’ – Yahoo News
child abuse September 2012; 5 ​ 0% increase in reports of child abuse
● Approx. 150 children have been reported to DoCS and neglect to the Department of Child Protection
(FACS) as being at the risk of harm have died at the ● Child Protection Minister ​Robyn McSweeney ​says this
hands of abusive parent or carer most aged less than 4 may be due to lack of moral force in non-government
years organisations
● Criticism against child protection services in NSW, which
began in 2006 ● Parenting NSW​ – aims to make parenting easier by
● Children’s Commissioner e​ stablished to monitor state helping to become better parents
programs to eradicate child abuse and strengthen ● Less effective than legal responses as they have no
existing child protection – proposed national framework capacity for enforcement
for child protection

● Child Protection (Working with Children) Act 2012

places child protection in respect of people who work
with children and does background police check to
assess whether person is unable to care and protect
child whilst employed through the ​Working With
Children Check
 Legal Studies: Family Law Summary Notes
● ‘Vulnerable children getting lost in NSW child protection
system’ – ABC News April 2014; r​ eport by ombudsman
declares that 21% of children at risk of severe harm had
face-to-face contact with a case worker in 2011
compared to 29% in 2014
● Regardless, more than 2/3 did not have chance for
face-to-face assessment thus continue to get lost in the
system

● ‘Case workers unable to cope with workers’ – SMH 2013;

failure to protect vulnerable children amplified where
Donna Deaves pleaded guilty to manslaughter of 2
year-old Tanilla Warrick-Deaves