Family Law Overview- Summary of hot topics (1 Viewer)

[goan_crazy]

hope this helps guys
i copied this from my notes

Overview:
There are laws concerning relationships in Australia which operate at both the state & federal levels, providing mechanisms for resolving disputes in times of crisis or when a relationship breaks down.
In 1999, NSW parliament passed the Property (Relationships) Legislation Amendment Act 1999, which extends the definition of a defacto relationship to include same sex couples & other domestic relationships.

*Who has constitutional jurisdiction over marriage, divorce, alternative family arrangements (AFA)?
Commonwealth-marriage, divorce
State-alternative family arrangements (AFAs)-same sex couples, De Factos, domestic carers

*Which court deals with marriage/divorce and AFA?
Family court and Federal Magistrates court

By enacting domestic legislation, we have upheld our international obligations E.g. ICCPR-International Covenant on Civil and Political Rights.

The reforms are the result of years of lobbying to remove the barriers to equality & the struggle for recognition of legal rights.
E.g. Toonen Case
It has involved the right to have relationships & given legal status, including family relationships of partnerships & parenting.

What laws cover relationships?
The legislation which recognises relationships includes the rights & obligations of partners on the breakdown of a relationship, property division, maintenance & responsibility of children. There are also laws concerning inheritance, decision-making in incapacity, bail & stamp duty.

Family Law Act 1975 is a Federal Act which provides a framework for the settlement of property & maintenance disputes on the breakdown of a marriage & for the care & responsibility of all children, whether born of a marriage or not- nuptial/ex nuptial

In NSW, the Defacto Relationships Act provided a framework for setting property & maintenance disputes between heterosexual partners. It gave de facto couples property rights which were similar to those of a married couple & the right to maintenance in limited circumstances

The New Legislation:
The Property (Relationships) Legislation Amendment Act 1999 amends the Defacto Relationships Act 1984 & renames it the Property (Relationships) Act 1984.
It provides for division of property for same sex defacto couples & others in close personal relationships & also amends a wide range of other acts to include recognition of same sex relationships & issues such as inheritance, incapacity after death etc.

Of 21 statutes which were amended by the Property Relationships Legislation Amendment Act 1999 to include recognition of same sex couples, a few include:
Family Provision Act 1982-wills/death
Mental Health Act 1990
Wills Probate & Administration Act 1898

Who is covered by the new legislation?
The Property (Relationships) Act 1984-introduces a new definition of a de facto relationship which is include same sex cohabiting couples in the same way as de facto heterosexual couples are covered.
The legislation covers cohabiting defacto couples & domestic relationships. It does not cover relationships in which 2 people do not live together.

Definition of defacto:
Two adult people who live together as a couple & are not married.
There are 9 issues court can take into consideration:
o Duration
o Common residence
o Sexual relationship
o Financial dependence/interdependence
o Ownership/acquisition of property
o Degree of mutual commitment
o Care & support of children
o Performance of household duties
o Reputation

*There is a requirement that the couple have lived together for 2 years in order to qualify as a de facto relationship.

Definition of domestic relationships:
A de facto relationship or a close personal relationship, where one or each of them provides the other with domestic care & personal care.
*This excludes relationships where care is provided for a fee or reward of by an organisation

Gay and Lesbian Relationships in Australia:
It is estimated that at least 10% of the adult population is gay or lesbian
Homophobia & violence against gay men & lesbians continues to exist in Australia
It was not until 1996 that the Australian census recorded info. concerning same sex partnerships.

What areas have not been changed: [Evaluation]
Although the Property (Relationships) Act 1984 introduces significant reform in NSW, inequality continues to exist. Same sex couples remain excluded from a number of acts.
The main areas of NSW laws which have been identified by the Gay & Lesbian rights Lobby group as still requiring amendment are in the areas of anti-discrimination, employment & adoption law.

The Child Abduction Convention & the Intercountry Adoption Convention have been incorporated into Australian Law through regulations to the Family Act 1995.
These conventions set out principles & practical steps for protecting children across international boarders.

The Convention on the Rights of the Child (CROC) sets out general principles regarding general principles regarding the legal rights of children.

While CROC is not legally biding on Australian courts, in a case in 1995, the High Court of Australia stated that, where Australia has ratified a treaty or convention, there is a legitimate expectation that administrative decision makers will take the provisions of a treaty or convention into consideration when making a decision.

 

[goan_crazy]

Overview-[Summary of hot topics 2]
 The Family Law Act 1975, a commonwealth Act deals with divorce, property disputes, breakdown of marriage & parental responsibility for children.
 There is also Care & Protection legislation in all states for a child considered to be at risk of abuse or neglect.
 At the international level, conventions such as Convention of the Rights of the Child (CROC)

The Family Unit:
 The family unit is traditionally viewed as a nuclear family. However, families do not fit into this limited definition. Single parent families, step families, same sex parent families are becoming more familiar, & many children have ties to non biological parents.
 Debates about privacy within the family, family’s right to be free from interference of govt.
 Law recognises parents have the primary responsibility for children & govt. intervention is reserved for circumstances when a child is “at risk”.
 Parents make many decisions on behalf of their children-where they live, education & religion. They can get assistance from court-specific issues orders E.g. Family Court or Federal Magistrates Court.
 Parental rights & responsibilities decrease as children become more mature.

Role of Govt.:
 The family unit has significant autonomy (independence)
 Law recognises that there are circumstances for govt. to intervene.
o Care & support through social security payments
o Housing, family counseling & assistance E.g. Family mediation centres, Counselling within family court, legal aid advice, helplines, DOCS etc.
o Protection Orders E.g. AVOs, assault charges
o Protection orders when children are at risk of abuse/neglect
 When a child at risk of abuse/neglect, a court can make orders for the protection of the child even if either or both parents oppose the order.
 Family might require parents counseling or therapeutic or treatment programs such as anger management or drug counseling.
 The child may be removed from the family and placed in alternative care E.g. foster care.
 When parental responsibility is granted to the relevant govt. minister-wardship.
 While the new Children and Young Persons Care and Protection Act 1998 (NSW) has removed these terms from the legislation, the children’s court still has the ability to give the Minister partial, joint or sole parental responsibility.

State or Federal Government?
 Family Law Act 1975 (Cth) created Family Court-deals with family matters.
 Family Law Act brought a change in terms-
Custody=residence
Access=Contact
Under the Australian Constitution, the states & the Federal Govt. have diff. areas of responsibility for making laws in relation to divorce & social warfare.
The Family Law Act (Cth) provides for divorce, resolution of disputes arising from the breakdown of a marriage, disputes over division of property & parental responsibility for children of a marriage.
The family Court of Australia was established to deal with legal issues resulting from a breakdown of marriage.
The family court is a specialised court-provides expert care & knowledge & equal, consistent-its effective, offers protection, equal, resource efficient-resources are all put into family Court-effectiveness 
The state has responsibility of making laws concerning disputes between unmarried persons over property & children’s issues.
In 1998 the state handed over its powers to federal govts. to deal with breakdown in marriage.

 

[goan_crazy]

more...

Children:
o The family Law Act 1975 (Cth) provides the framework for law concerning responsibility for children in Australia.
o Parental responsibility can only be taken away from a parent by court order from the Family Court. The Family Court can also grant parental responsibility to anyone who it considers important to the care, welfare or development of the child.
o All decisions concerning children made under the Family Law Act must be in the best interests of the child
o The Property (Relationships) Act 1984, it may be possible for non-biological lesbian & gay co-parents who have the care of responsibility of children after the breakdown of a relationship to apply for child maintenance from the biological parent.

o Under the Status of Children Act 1996, men who have assisted women to conceive a child through sperm donation are not legally considered the father of the child.

o It is possible for gay & lesbian couples to foster a child by providing residential care for children. Supervised by the Department of Community Services (DOCS)

Age Of Consent:
There are no laws in Australia which restrict lesbian behaviour, apart from laws applying to heterosexual sex with women under the age of consent.
There have been a number of recommendations regarding the need to reduce the age of consent to a national consistent age.

 

[bEAbEA]

You are way too dedicated! Thanks

 

[goan_crazy]

You are way too dedicated! Thanks

thanks bEAbEA
i try 2 help my fellow BOS ppl as much as possible!
hope u got somethin out of it

 

[goan_crazy]

theres also one on convention on the rights of the child [CROC] but...
i didnt get this as i am not goin to skool coz im not fit enough yet due 2 my op

 

[SiReN]

yupp, the covention on the rights of the child, 1989
rights of the child include:
- the right to a name a nationality
- the right not to be abused
- the right to be free from discrimination and to be treated equally
- the right to be adequately maintained
- the right to an eduacation between the ages of 6 and 15

rights and obligations b/w parents and children.
--> until a child is 14yrs, parents must seek medical treatment for their child when necessary

--> parents have the right to choose their child's religion

and ermm yaah....

 

[Huratio]

my definition:

Convention on the Rights of the Child (CROC- 1989): children should not be subject to discrimination; able to grow in a normal manner; have adequate housing, nutrition, recreation and medical services; not to be separated from mother (only exceptional circumstances), free elementary education and free from exploitation.

 

[babi_girl]

Thank you, thank you & thank you again. Awsome info