Family Law Notes

Legal Studies: Family Law Summary Notes 2015
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 societys 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. Glasbys 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
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)
established 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
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 Succession 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 Entered into according to tribal custom
Customary Law 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
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 approx. 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
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 Byrons 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
Thereare 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.
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 childs 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.
Gillick v West Norfolk and Wisbech Area Health Authority (1985): WAHA
giving contraceptive advice to daughters under 16 without awareness or consent
took matter to court seeking declaration that actions were unlawful and interfered
with parents rights and duties
court decided children with maturity to give informed consent should be legally able
to do so decision based on idea that parental powers over children change as their
autonomy increases
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 childs
adoption until 30 days after the birth child must consent to his or her own adoption if over
12 childs 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
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: must 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 childs 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 parenting order that deals with matters
including the childs 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 societys 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 childs best interest since 2006 for parents to have shared responsibility by
consulting one another for issues such as childs religion, education, name and cultural
upbringing presumption can be rebutted where responsibility may not be in childs 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 maintenance = 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 liable 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
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 countrys 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, Were 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

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 showed yelling, repeated criticism, denial
of money and control of partners 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 AVOs 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)

Originally 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 victims
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 persons home address must not be included in ADVO
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 ADVOs 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 - Already Flexible, quick and Breach hard to prove
Orders discussed inexpensive Police reluctant to
- In 2007, 23,000 Protect victim in the institute proceedings
ADVOs were future Proceedings for AVO even when
issued in NSW instituted by police or required
courts however victim through Piece of paper
10 000 chamber magistrate insufficient to eliminate
breaches Proof is on civil SOP strong mens rea
easier to prove than Lead to increased
criminal case, violence due to
perpetrator is guilty resentment
only if breaching order
Criminal charges Crimes (Domestic Acknowledges assailant Focuses on 1 incident
and Personal committed criminal without looking at
Violence) Act 2007 offence history
crimes between people Victim can lay charges Standard of proof is
in domestic if police will not do so beyond reasonable
relationship and are Can lead to police doubt and harder to
made illegal applying for AVO if prove than an AVO
Common: assault, offence recognised as Some police and
malicious damage, dvo victims reluctant to
stalking and pursue charges
intimidation - Nannette May case resulting in criminal
Assault: charge in 2009 brought about conviction
perpetrator under CA NSW head of Domestic
1900 if taken place Violence to encourage
must be proven beyond women to open up
reasonable doubt does about domestic
not include harassment violence to encourage
Stalking/Intimidation them to lay criminal
: separate offence charges according to
under Crimes ABC News
(Domestic and
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
Maximum penalty:
50 penalty units + 5
years I
Family Court Orders Under FLA and Injunctions restrict Injunctions harder to
Property wide range of enforce than an AVO
(Relationships) Act behaviours as does
1984 AVO Not immediately
obtainable
Injunctions: prevents Deal with violence as Women reluctant due
someone from doing part of larger problem to fear of viewed
something or orders Parenting orders unfavorably by court
them to do something recognize effects of
Obtained through family violence on Only effective if they
Family Court and children are policed
operate as AVO more
difficult to enforce ABC News: Breach
Similar penalty for on Restraining order,
breaches sought orders rethink
when couple is already inadequacy of law in
before the court protecting victims such
because of divorce as Nannette May from
proceedings, etc. harm
Family Violence and
parenting orders:
Under Family Law
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 wifes
father in Wilberforce
NSW ABC News
SYLLABUS learn to effectiveness of law in protecting victims of DV

o Ensure: ADVOs 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 AVOs 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
o Crimes (Domestic and Personal Violence) Amendment Bill 2013 gives police power
to issue on the spot AVOs
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 Battered Womens Syndrome was
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 AVOs 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 childs 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: Fathers agony at 15-month wait for family court judgement
o Father waits 15 months to hear whether Family Court accepted ex-partners 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 judges 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
o Reconciliation is the priority and paramount recommendation before any decisions and deal
with less complex issues
o The Family Law Act 2000 (NSW) also encouraged the court to create orders with children as
the paramount consideration
o Skynews Article (21st 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
Childrens 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 Family 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 People use dispute resolution in inappropriate
due to mutual agreements to prevent further circumstances due to being cheaper
disputes
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
o Community-based: non-profit including Relationships Australia provide relation support
services, family dispute resolution and early intervention services funded by government
o Womens refuge and others: Assist women experiencing domestic violence by providing
emergency accommodation and advice
o Legal Assistance: Legal Aid NSW
Lobby Groups
o Pressure governments to reform the law voice peoples 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 Councils 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 Medias 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 Australian institute of Family Studies (AIFS),
highlighting need for change in particular areas of family law. Also, Gay 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
No one is to blame however FV to obtain and there should be
taken into account for other means to resolve the
separation issue
Agreement about divorce Sometimes one party is to
encouraged to reduce costs blame causing bias as
Introduction of non-financial argument
contributions led to greater Women and children still
equality for women treated unequally after
dissolution of marriages due to
FLA not addressing contentious
issues relating to breakdown of
marriage
Parties to de facto marriage Since 2009 property division Some feel de facto are immoral
rules apply to de facto as well and should not have same level
to make status and of protection from law
effectiveness equal (property)
Some argue that if heterosexual
want same level, should get
married
Parents 2006 amendments cause 2006 amendments used by
parents to have equal shared some to lessen child
respons. maintenance payments
Family violence provisions FV detrimental to women
protect victims causing fear to report
Children More likely to have meaningful Allegations that FV insufficiently
relations with parents and catered for and children spend
others under 2006 amendments substantial time with violent
Rights favoured and parents
emphasised 30% of children of separated
Special courts for children with parents do not receive
same rights as adults however maintenance despite CSS
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
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 Groups such as the Australian Marriage
Financial Matters and Other Measures) Equality and Gay and Lesbian Rights Lobby
Act 2008 (Cth), separating de facto have lobby the government and media to
homosexual couples are able to bring address discrimination, legal rights and social
property and maintenance matters to the equality
Family Court or Federal Magistrates Court Alex Greenwich president of the AUS
Marriage Equality organisation advocates for
Changes to the Health Insurance Act 1973 same-sex marriages and scrutinises
(Cth) in 2008 allows same-sex couples and Australian legislation in failing to adapt to
their children to register as a family for changing values e.g. conducted poll to
Medicare and have the same entitlements investigate public opinion and over 50%
initiated through the Hope/Brown v NIB had agreed to same-sex marriage being
Health Fund legalised in Australia
LGBT
The Australian Human Rights Commission Remedies are never enforceable however
holds inquiries and gives recommendations place pressure to make changes
to the government regarding legislation that Assist in lobbying for law reform and
does not comply with UN human rights enunciating case for reform thus leading to
treaties. In the report Same-Sex: Same change through media
Entitlements, they had recommended No enforcement mechanism
amending federal laws to remove
discrimination
The federal government passed Marriage

Amendment Act 2004 (Cth) reaffirming
that marriage is between a 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.
This 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 NSW suggested and applied the
same-sex marriage bill in NSW however was
overturned by the Federal 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.
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

Community institutions and nationwide
Over time there has been enunciated organisations such as Relationships
expectations and legal duties of parents both Australia can help separating parents
on Commonwealth and State level negotiate their own parenting agreements
The Family Law Amendment (Shared Done through counselling, education and
Parental Responsibility) Act 1995 & skills training help parenting skills and assist
2006 makes courts take primary and in recognising negative gender issues
additional considerations. Primary are the Community-based reconciliation service
two main rights, whereas additional include promotes idea of resolving conflict in family
the childs wishes, parental financial abilities, cases
nature of relationship, etc. May be used to promote awareness of best
Such laws have equalised mothers and interests of child such as the case B v J
fathers and emphasised childrens rights to (1997) where child residence with mother
echo CROC resolved through healthy communication
Children (Care and Protection) Act 1987 DadsLink is a group that focuses on fathers
(NSW) help protect childrens rights at and their relationships with their children
state level and impose obligations Actions of NGO and media organisations
Change to Child Support Agency rules raising awareness of respecting parental
encouraged more equal shared parental responsibility
responsibility but may not be in childs best
interest to coincide with legislation Lone Fathers Association responsible for
Terminology changes in the legislation from reforms in FLA in 2006 encouraging shared
custody to residency to living with parental responsibility
are intended to remove any notion of parents Influential and persuasive used to inform and
owning and totally controlling their children guide the law reform agenda not binding
contact replaced access (timing, and cannot compel change however effective
duration and nature of contract by non- in the shared responsibility issue
residential parent) best interests Use media to increase significance of
replaced with welfare THIS FORMS parental responsibility, which in turn may
PARENTING PLAN assist in dealing with domestic violence
Much of CROC agreements reflect values

embedded in parents and children must
ensure welfare and development of children issues through emphasis on monitoring
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
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
Commercial surrogacy is illegal in NSW under Surrogacy Australia advocates; support

the Assisted Reproductive Technology surrogacy as an effective means for infertile
Act 2007 (NSW) though altruistic surrogacy adults to have children and raise family;
(no reward payments) is largely unregulated. supports idea that surrogacy does not
Costs of ART are quite high and law does not necessarily have any long lasting effects on
allow equity and access the surrogate mother and child
Inconsistencies between jurisdictions in Media Article on OnlineOpinion states
Australia reduce effectiveness of law and there is no absolute barrier to conception,
create inequalities between states for which can be proved; concerns about long
example NT does not have any laws term health risks for children of IVF as a
regarding surrogacy whilst commercial foundation of reason for strict laws pertaining
surrogacy is illegal in NSW
The Status of Children Act 1996 (NSW) to surrogacy

created the presumption of paternity, which
states that when a woman becomes Various organisations and lobby groups have
pregnant by using donor sperm from opposed surrogacy as it gives a means of
someone other than her husband, the man is same-sex couples raising children (they have
presumed not the father of the child born. desired surrogacy be restricted to infertile
heterosexual couples)
B v J (1996) father refused to pay Express desire that surrogacy be restricted to
maintenance arguing that child was not his infertile heterosexual couples argue that
and that maintenance was sperm donors parents of the same sex face difficulties
responsibility however court rejected this ranging from problems accompanying small
argument under presumption of paternity child of the opposite sex to a public toilet to
clause this may be altered through social stigma
application to the courts Conservative religious organisations use
media to oppose surrogacy and birth
Re Evelyn (1998) 7 months after birth technologies and express concerns of
surrogate mother removed baby from dehumanisation
prospective parents; law could not do
anything due to lack of enforcement Less effective than legal responses as they
mechanisms and lack of binding legislation have no capacity for enforcement
Organisations and lobby groups utilise media
The law has been ineffective in clarifying the to raise issues of inequity and injustice
rights and responsibilities of commissioning Lack of organisations to support
parents and birth parents, the rights of the
child, and removing inconsistencies between
states
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

Certain professionals are required to report
to Family and Community Services if they Organisations such as the Salvation Army
suspect child abuse, and a caseworker will provide extensive support and educational
make an assessment to determine the extent services to children in need e.g. child care
of risk. Police and representatives from the centres, counselling services, emergency
NSW D Health will protect the child housing
Police have power to decide that there is Utilise media to raise issues of inequity and
evidence of a crime and may arrest suspect injustice
accordingly child assigned to caseworker Bodies listed may also make suggestions for
and receives medical attention law reform and can act to inform law reform
In 2007, more than 150 children who has debate nationally
previous been reported to Community
Service died at the hands of their abusive Kids Helpline counselling service for
parent or carer young people between 5-25 years offered by
Dwindling financial resources and staff cuts phone, email and over the web help with
have left the Department of Community relationship, drug and alcohol abuse,
Services unable to adequately protect and depression, etc.
support families of victims of child abuse Big Rise in child abuse reports Yahoo
Approx. 150 children have been reported to News September 2012; 50% increase in
DoCS (FACS) as being at the risk of harm reports of child abuse and neglect to the
have died at the hands of abusive parent or Department of Child Protection
carer most aged less than 4 years Child Protection Minister Robyn
Criticism against child protection services in McSweeney says this may be due to lack of
NSW, which began in 2006 moral force in non-government organisations
Childrens Commissioner established to
Parenting NSW aims to make parenting
monitor state programs to eradicate child
easier by helping to become better parents
abuse and strengthen existing child
Less effective than legal responses as they
protection proposed national framework for
have no capacity for enforcement
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
Vulnerable children getting lost in NSW child

protection system ABC News April 2014;
report 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

Family Law Notes

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Legal Studies: Family Law Summary Notes 2015

1. The Nature of Family Law

Concept of family law

Legal requirements of marriage

Legal Characteristics (without this marriage is null and void)

Marriage must be:

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

3. For Life; intention of marriage rather than actuality

SYLLABUS learn to outline the requirements for a valid marriage

4. Valid marriage ceremony; 2 witnesses 18+ parties to marriage reasonably believe

Legal Consequences of Marriage

Alternative family relationships (regulated by state legislation however marriage dealt

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

Blended families According to ABS approx. 70% of families

Same-sex relationships Homosexuals were not recognised by law

Polygamous relationships Determined by Hyde v Hyde and

De Facto relationships Were previously not given any rights due

Legal rights and obligations of parents and children

Thereare five legal responsibilities of a parent:

Rights and Obligations

2. Responses to Problems in Family Relationships

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

Kane v Kane (2009)

Legal Consequences of Separation

Children (last resort only)

CASE: Shakir v Shakir (2014)

Ex- nuptial children

Equal Shared Responsibility

CASE: Smiths v Fields (2012)

Property division and the no-fault concept

Dealing with Domestic Violence

65% separated mothers reported physical/emotional abuse; 17% of fathers reported

Main legal responses to DV:

o Introduced by the Crimes (Domestic Violence) Amendment Act 1982 (NSW)

Main legal responses to DV effectiveness

Legal Response Characteristics Advantages Disadvantages

In 2003, family court

SYLLABUS learn to effectiveness of law in protecting victims of DV

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

The roles of:

Courts and Dispute resolution

CASE: Wylie v Wylie (2014)

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

CASE: Pitman v Bond (2014)

CASE: Symons v Symons (2014)

Advantages of dispute resolution mechanisms Disadvantages of dispute resolution mechanisms

Domestic Violence Homicide Review

Family Court and Domestic Violence

o Roles of non-government organisations: to provide advice and assistance to families

Parties involved Factors that enhance Factors that lessen

3. Contemporary issues of concerning family law

Recognition of same-sex relationships

Legal Responses Non-legal responses

The federal government passed Marriage

This is shown through the recent 2013

Changing nature of parental responsibility

Legal Responses Non-legal responses

Much of CROC agreements reflect values

Crimes Amendment (Child Protection

Surrogacy and birth technologies

Legal Responses Non-legal responses

Commercial surrogacy is illegal in NSW under Surrogacy Australia advocates; support

The Status of Children Act 1996 (NSW) to surrogacy

Care and protection of children