family law

• Themes and challenges in family law

  • The role of the law in encouraging cooperation and resolving conflict in regard to family
  • Issues of compliance and non-compliance
  • Changes to family law as a response to changing values in the community
  • The role of law reform in achieving just outcomes for family members and society
  • The effectiveness of legal and non-legal responses in achieving just outcomes for family members
• Family


  Historically defined as a "nuclear family" (mum, dad, 2 kids), but changing societal and cultural values have led to more contemporary versions of this definition
• Due to the increase of divorce in 1981 one-person households are not as common sitting at 18% however in 2016 it has increased to 24.4% as is widely accepted
• The average amount of members in families have decreased to 2.6 people per family
• Same sex couples have had an uprising
• Immigration families have many family members
• Definition of family


  A family is to be considered 2 or more people with either children or no children who are biologically related, de facto, fostered, adopted and or are a sole parent and or extended family
• Marriage laws in Australia

  The federal government has the power and authority to make laws governing marriage and divorce. Most state governments have now referred their powers to the commonwealth with respect to both parenting disputes and property disputes
• Section 51 (xxi) and (xxii) of the Australian Constitution


  XXI = outlines the legislative powers of the parliament of marriage

  XXII = outlines the concept of divorce and matrimonial causes and in relation, thereto, parental rights and the custody and guardianship of infants
• The Marriage Act 1961 (Cth)

  Provides a legal framework to allow civil celebrants to solemnise marriage, understood as the union of 2 people, ministers of religion to solemnise marriage, and ensuring equal access to marriage while protecting religious freedom in relation to marriage
• The Family Law Act 1975 (Cth) Part IV


  Deals with matrimonial causes and the jurisdiction of courts in reference to divorce
• Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)


  Legalised same sex marriage in Australia by amending the marriage act 1961 to allow marriage between two-persons of marriageable age
• Same-Sex Relationship (Equal Treatment in Commonwealth laws - General Law Reform) Act 2008 (Cth)

  Adjusts any discrimination against same-sex couples/people
• Alternative family relationships


  • Aboriginal and torres strait Islander peoples customary law marriages
  • De facto relationships
  • Single parents and blended families
  • Same sex marriages
• Legal rights and obligations of parents in NSW

  Parents are responsible for providing adequate food, shelter, protecting their child from abuse or neglect, and providing access to education
• CRoC (1989)


  Has been signed and ratified by 194 UN member states, declares that people under 18 must be protected from violence, discrimination, exploitation and neglect. Australia ratified this convention in 1990 and is bound in international law and its terms.
• Children (Protection and Parental Responsibility) Act 1997 (NSW)


  Parents are responsible for the behaviour and any damage caused by their children
• Children and Young Persons (Care and Protection) Act 1998 (NSW)

  Neglect is a criminal offence under both section 228 which carries fines of up to $22000 and section 43A provides a jail term of up to 5 years
• Responsibilities of parents


  Housing, clothing, food, medical care, emotional security, financial, controlling children's development of appropriate social skills and monitoring of social behaviours
• Education laws in NSW

  Parents cannot refuse their child an education but can choose where they are educated. Amendments made in 2009 to the Education Act 1990 (NSW) makes it compulsory for a child to attend an educational facility from the age of 6-17. The failure to enrol a child in a school or to give offence and carried fines up to $5500.
• Discipline laws in NSW

  Parents have the right to discipline their child by using physical force in order to correct their behaviour, but the physical force must be 'reasonable' having regard to age, health, maturity etc. The alleged misbehaviour or other circumstances (Crimes Act 1900 s61AA (NSW)). NSW is the only state in Australia that has stipulated what is deemed 'unreasonable' corporal punishment.
• Medical treatment laws in NSW

  Parents are responsible for ensuring that appropriate medical and dental care are available for their child. Consent must be given before a doctor can give treatment. Children and Young Persons (Care and Protection) Act 1998 (NSW) defines a child as a person under 16.
• Separation parental obligations


  Family law reform act 1995 (Cth) and Family Law (Shared responsibility) Act 2006 (Cth) puts emphasis on that parental responsibilities should be shared. Monetary support is to be provided by the parent where the child does not reside and is calculated through the Child Support (Assessment) Act 1989 (Cth).
• Family Law Amendment Act 2024


  Changes to the consideration of 'best interests of the child' - safety of the child, opinion of the child, future development of the child, capacity of the parent, benefits of the relationship with the child, good repute, and other considerations (Indigenous) are all weighed equally. Removal of the presumption of shared responsibility - parental responsibility can be either joint or sole. Decision made by a judge is solely discretionary and based on individual circumstances.
• There is no assumptive provision for domestic violence prioritising safety in the Family Law Amendment Act 2024, and the decision based heavily of judges discretion make appeal difficult
• Adoption laws in NSW


  Governed under the Adoption Act 2000 (NSW). The aim of the law is to ensure the best and most appropriate parents are found for a child. Consent must be given by both biological parents, with the father given 14 days from notification to respond. Biological parents can change their minds about adoption up to 30 days after. Children over the age of 12 must consent to their own adoption. Adoptive parents must be married or in a long term de facto relationship, over the age of 21 and under the age of 51, at least 18 years older than the child (for a male) or 16 years older than the child (for a female), and of 'good repute'.
• Adoption rates have declined significantly, with a drop of 98% since 1971 to only 201 adoptions per year (2022-2023)
• Overseas adoption laws


  Governed by the Hague Convention on Protection of Children and Co-operation in respect of Intercountry adoption (1993) and other bilateral agreements. International adoption rates have declined by 76% since 1980 to only 16 adoptions per year (2021-2022). The intercountry adoption process involves making an initial enquiry, attending education seminars, undergoing assessments, getting approval from the overseas country, and completing the legal process.
• Divorce pre-1975


  Had to find grounds of fault, one person was deemed at fault including adultery, insanity, desertion, family violence and chronic alcoholism
• Divorce post-1975


  Removed the grounds of finding fault, established the family court, and introduced the "kiss and make up" clause under section 50 of the Family Law Act 1975 (Cth)
• Separation


  Refers to the breakdown of a marriage or a de facto relationship, with legal consequences for property and children
• Decree Nisi


  A family court order that signals the intended termination of a marriage
• Decree Absolute


  The final order that legally terminates a marriage
• Divorce


  The legal termination of a marriage by an official court decision
• Divorce before 1975


  • Had to find grounds of fault, one person was deemed at fault including adultery, insanity, desertion, family violence and chronic alcoholism
• Divorce after 1975


  • Removed the grounds of finding fault
  • The kiss and make up clause under section 50
  • The family court was established
• Separation


  Refers to the breakdown of a marriage or a de facto relationship. In both cases there are legal consequences with respect to the interests of any children from the relationship and in terms of property settlements between all parties.
• Decree Nisi


  A family court that is made to signal the intended termination of a marriage
• Decree Absolute


  A final decree of the dissolution of marriage
• Divorce Order


  A final divorce certificate that is proof of the dissolution of marriage