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Nature of family Law 2






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Nature of family Law 2 Nature of family Law 2 Presentation Transcript

  • Family Law
    Nature of Family Law 2
  • Aboriginal and Torres Strait Islander peoples’ customary law marriages
    Children can be betrothed and elders can arrange marriages
    Generally, ATSI marriages are not recognised under the Marriage Act 1961 (Cth)
    However, protection is given to ATSI children under certain arrangements
    Alternative Family Relationships
  • Single-parent families
    15% of families are single parent in Australia
    Increasing due to high rates of divorce, changes in social attitudes and greater financial dependency of women
  • Blended Families
    Created when a parent remarries
    1/3 of all marriages in 2008 were marrying for the second time
    Many divorced couples choose to cohabit
    (live together) rather then remarry
    Step parents are not responsible for the maintenance of a partners child. They can adopt a step child overtime
  • De Facto Relationships
    Defined in the Family Law Act 1975 (Cth) as:
    Partners who are not legally married to each other
    Have a relationship living on a genuine domestic basis
    A relationship that is generally 2 years, unless there is children involved
  • Same-Sex Relationships
    Recognised under the Property (relationships) Act 1984. giving same legal standing as de facto relationships
    Currently, Same-sex marriages are not allowed in Australia, but pressure on federal government may change this overtime
  • Polygamous Marriage
    Illegal in Australia
    Overseas polygamous marriage may be deemed legal in the best interests of the child
  • Theme: changes to family law as a response to changing values in the community
    Views on different family arrangements
    Society views towards same-sex marriages
    Increase in women’s financial dependency and supporting children
    Children are not owned but cared and protected by both parents
    Theme and Challenge Time
  • The rights of the child are paramount as they are considered most vulnerable
    Most laws relating to care and protection of children are at a state level
    Page 321 in txtbook for complete legislation concerning children in NSW
    Legal Rights and Obligations of Parents and Children
  • Derived from International Law
    Protection of children under CROC
    CROC is used by courts to develop common law regarding protection of children
    Many principles of CROC are embedded into state legislation
    Article 3 – children’s best interest should be primary consideration
    Article 12 – child has a right to express opinions and be heard in legal proceedings
    Preamble – importance of child’s cultural background
    Article 2 – protected against discrimination
    Parental Care
  • Part VII section 60b ‘ best interests of the child are taken into consideration for children’s orders’:
    Involvement of both parents
    Protection from physical and psychological harm
    Adequate and proper parenting
    Parents share responsibility for the child’s care and welfare
    Parental Care and the Family Law Act 1975 (Cth)
  • Development of the Family Law Act 1975 (cth) and parental care
  • providing adequate food and shelter
    Providing access to education
    Consenting to medical treatment
    Providing discipline
    Protecting children from harm and not be exposed to illegal activities
    Ensuring others are not harmed by their child
    Responsibilities of parents
  • Under State Law parents may be criminally charged for neglect
    Children and Young Persons (Care and Protection) Act 1998 (NSW), carries fines up to $22000
    Department of Community Services intervenes which sends a caseworker and can move the matter to the children’s court of NSW for an order
    Parents can be held liable in tort for damage or injury that their child cause
    Parental Neglect – State Law
  • Education
    Protected under Education Act 1900 (NSW) and CROC
    Failure to provide the child access to an education is a criminal offence
    Parents have the right to discipline their child by using physical force but it must be reasonable
    What is reasonable may vary from culture to culture
    Assault includes striking the head or neck, shaking and striking with a closed fist
  • Discussion Point:
    Can we define reasonable physical discipline?
  • Medical Treatment
    Under 14yrs consent of a parent is required
    14-16 child’s or parent’s consent required
    If the parents refuse treatment a court can authorise the treatment
  • Autonomy of Children
    Children are considered as not having developed cognitive abilities to make informed decisions
    Development of law regarding children and young persons has increased some freedoms and improved rights
    Ex-nuptial Children (outside marriage)
    In the past had no legal status
    Status of Children Act 1996 (NSW)
  • Process of transferring parent rights and responsibilities from biological parents to adoptive parents
    State Responsibility – Adoption Act 2000 (NSW)
    Both parents must give consent to give up child (If single parent, mother gives consent while notifying father having 14 days to respond)
    Children aged over 12 yrs must consent to their own adoption
    Birth mother cannot consent within 3 days from birth
    If birth parents give consent, a 30 day cooling off period will apply
  • Who can Adopt?
    Married couples and de facto relationships of more than 3 years
    Individuals who are not in a relationship
    Over 21 years but under 51 years of age
    Males – 18 years older than the child
    Females – 16 years older than the child
    ‘Good Repute’ and be ‘fit and proper’
  • New birth certificate issued
    Adoptive parents now have legal responsibility
    Child has the right to inherit the estate of their adoptive parents
    Adoption Approved
  • Child’s culture need to be preserved
    In NSW, prospective parents apply through DOCS
    Child must meet migration standards otherwise they may be refused
    Adoption Overseas
  • The Adoption Act 2000 (NSW) allows relinquishing parents and adopted children the right to request information from DOCS
    Adopted children over 18 and biological parents may apply for a ‘supply authority’ (find information)
    On the other hand, parents and children who do not want to be contacted can lodge a ‘contact veto’. Fines apply if not followed correctly
    Accessing information about biological parents