1. Family Law
Part three, option 1 - issues in family law
Term 1 2016

2. 1. Same-sex
relationships
• The Marriage Act 1961 (Cth)
excludes same-sex couples.
Marital legal status remains
‘single’
• Other countries have recognised
same-sex relationships e.g.
Belgium, Spain, New Zealand
• The Marriage Amendment Act
2004 (Cth) reaffirmed the
definition of marriage ‘ the union
of a man and a woman’

3. Tony abbott on same sex marriage

4. International
recognition of
Gay Marriage

5. • There have been many law
reforms recognising SSR between
2000 – 2009. Definitions have
changed to include ‘de facto
partner’ ‘couple’ ‘parent’
• Changes to Medicare, tax, social
security, superannuation, worker’s
compensation and child support.
• Adoption for SSR has also been
introduced
• Adoption Amendment (Same Sex Couples)
Act 2010
Legal Responses

6. Rudd on gay marriage

7. Kevin Rudd’s view

8. • Specific groups continue to lobby for change
• E.G Australian Marriage Equality and the Gay and
Lesbian Rights Lobby
• Lobby groups apply pressure for marriage equality
and are not satisfied with civil unions and de facto
status
• Some sections of the media have been critical of
these changes
• e.g National Survey Poll by the Australian
Marriage Equality Organisation
Non - Legal Responses

9. Same sex couples and adoption

10. • A significant number of politicians
must support legislative reform in
order to change the law
• The Anti-Discrimination Board of
NSW has made many
recommendations for law reform
• Dec 2013, High Court rules that
any state/territory cannot make
laws regarding same sex marriage,
only federal government
• Commonwealth v ACT 2013
Responsiveness of the Law

11. Marriage equality

12. • A national plebiscite(free non- binding vote) will be
held during the next government term (if re-
elected)
• A Fairfax/Ipsos Poll in 2015 shows 68% of
Australians are in favour of reforming the law
• In 2016 the Federal Election will involved a large
social debate in this issue
2015-2016 Developments

13. Malcom Turnbull 2008

14. Malcom Turnbull 2012

15. The Weekly - Media Opinion Piece

16. 2. The Changing nature of
parental responsibility
• In the past – parents gained
‘custody and control’. The
courts are more concerned
with parental responsibility
today
• The law aims to ensure
positive and supportive
family structures even when
parents separate

17. • The Crimes Amendment (Child Protection–
Physical Mistreatment) Act 2002 (NSW) further
restricts the ability of parents to use corporal
punishment
• Section 63F(1) of the Family Law Act, each parent
of a child has equal parental responsibility
• Section 5 of the Status of Children Act 1996
(NSW) provides that all children are of equal
status. This means those born within and also
outside of wedlock.

19. • In more than 60% of parenting plans and orders,
children spend more time with their mother
• Reforms in 2006 aimed at shared parental
responsibility but unfortunately have produced the
idea of 50-50 shared care for their children
• Major change (2006) ‘substantial and significant
time’. This has caused disputes between parents
• There still remains the issue of domestic violence
involved in parenting plan disputes
Legal Responses

20. • Many institutions can help separating parents
negotiate parenting plans. examples:
• Dadlink/Lone Father’s Association
• National Council of Women Australia
Non - Legal Responses

21. Father’s rights

22. • The law has changed due
to social attitudes (father’s
roles)
• Responsibility is no longer
the mother’s role – care
and protection
• The most obvious legal
response has been to equal
responsibility and
substantial time
Responsiveness of the Law

23. 3. Surrogacy and
birth technologies
• Which include:
• Artificial Insemination – donated
sperm artificially introduced to the
vagina
• IVF (in-vitro fertilisation) –
Resulting embryo is implanted into
the uterus
• Genetic manipulation
• Gene sharing

24. • Many legal issues arise
from this form of
technology
• Paternity rights of the
father
• Case B v J (1996) –
father refused paying
maintenance, arguing
that the sperm donor
should pay. Court
rejected this claim.

25. • Couple and a woman agree to bear a child
together where the couple looks after newborn
• Mother who conceived the child is still the natural
mother
• Laws differ from state to state which has created
inconsistencies, uncertainty and conflict
Surrogacy

26. Overseas surrogacy

27. • State based law - Surrogacy Act 2010 NSW
• NSW lacks clear state legislation on surrogacy
• The concept of presumption of parentage continues to
expand. It has become easier after the 2010 reforms to
transfer parentage to the commissioning parents
Legal Responses

28. Surrogacy nsw

29. • Various lobby groups have opposed surrogacy on moral
grounds, that it is unnatural
• View that same-sex couples can have children through
this technology
• Other groups have argued that we are denying families
the right to have children without the use of technology
Non - Legal Responses

30. Ivf victory

31. • Federal law has been slow to solve
problems:
• Clarify rights of all parties
involved
• Clarify the rights of the child
born
• Removing inconsistencies
between federal and state
legislation
• This area remains a major focus
of law reform due to rapid
changes in birth technologies
Responsiveness of the Law

32. Sperm donor

33. 4. Care and protection
of children
• All levels of government have passed legislation
regarding domestic violence
• The Children and Young Persons (care and
protection) Act 1998 (NSW)
• Amendments to Family Law Act in 2006 (Shared
Responsibility) section 60cc
• Reports of domestic violence continue to increase
steadily

34. • Entered into force 2003, limited agreement 39
ratifications globally
• Aims to eliminate delays in communication between
relevant authorities
• emphasis is on protecting the ‘person and the property
of children’ during separation
Hague Protection Convention 1996
Hint: This can be used as another International document for parental
responsibility and care and protection issues

35. Hague Protection Convention
1996

36. Children’s lawyer

37. • Courts have the power to restrict visiting rights to a
parent who are violent (Children’s Court)
• Children Legislation Amendment (Wood Inquiry
recommendations) Act 2009 NSW - to improve
inadequate existing law of children at risk of harm
Legal Responses

38. • Many organisations concerning
protection of children are involved
to improve family issues
• Child Abuse Prevention Service
(CAPS)
• Child Protection and Family Crisis
Service
• The Benevolent Society
• Parenting NSW
Non - Legal Responses
Hint: Using news articles for this issue
is a great way of integrating non-legal
responses into a paragraph

39. • Review undertaken in 2006 about the NSW child
protection system
• The legal system accused of acting too slow
• In 2007, more than 150 children who had been
reported to children services died while still
involved with an abusive parent or carer
Responsiveness of the Law