Presentation done by Mr Shipp NHSPA

1. Family Law
Part one, option 1 - nature of family law
Term 1 2016

2. Family law: themes
and challenges
• 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.
Very important when developing essay questions

3. Assessment tasks and
examinations
2011
2012

4. 2013
2014
2015

5. Main issues in family
law
These need to be integrated into essays where they
are appropriate

6. The concept of family
law
• Wide ranging area of law which
covers care of children, property
allocation when a marriage breaks
down and domestic violence etc
• Main Function of the Family: Care
and Protection of its members -
Parental Responsibility
• Family Law Act 1975 (Cth) -
defines a family as ‘the natural and
fundamental group unit of society’

7. Hint: Great to use
this in the intro of
an essay
Main Syllabus Points

8. Traditional views Modern society
Nuclear Married Family ( Mother,
Father & Children)
Single-Parent Family
Blended Family
‘Children should be seen but not
heard’
De Facto Relationship
Couple should not live
together unless married
Same-Sex Relationship
Extended family
Aboriginal and Torres Strait
Islander Customary Marriage
Hint: These family arrangements are linked to Family Law
Reform

9. Traditional family

10. • Why is it difficult to
define a family?
• In your opinion, what
are the reasons for
alternative family
arrangements in
modern day Australia?
Discussion Time:
Hint: Families include Father, Mother and Children according to
the law. However, due to changes of the modern family, this
includes other members who live together

11. Legal requirements of
marriage
• Marriage is ‘the union of a man and a
woman to the exclusion of all others’
Marriage Act 1961 (Cth)
• Based on the English Case of Lord
Penzance: Hyde V Hyde and Woodmansee
(1866) ‘voluntary union for life of one man
and one woman, to the exclusion of all
others’
• Marriage is voluntary, is for life (however
having legal right to divorce), must be
different sexes and polygamy is illegal.

12. • Gender
• States that marriage involves only the union of man and
woman (s5)
• Marriageable age
• May marry at 18, if between 16 to 18 you must apply to
a judge or magistrate (s12) for marriage authorisation.
Only exceptional cases will be approved
• Prohibited Relationships (consanguinity)
• Cannot marry a blood relative (ancestor, descendant,
sibling) including adopted persons
• Used to include Affinity Relationships (Through
Marriage – Uncle, Niece etc) however in 1975 this was
abolished
The Marriage Act (Cth) 1961

13. • Notice of Marriage
• Couples must complete a notice of intended
marriage form authorised by a marriage
celebrant. Must include proof of age and
whether they have been married previously
• Requirements of a valid marriage ceremony
• Authorised Marriage celebrant must
perform the ceremony and there must be
two over 18 witnesses
• Issue of a marriage certificate which is
signed by the husband, wife and two
witnesses
• One copy of the certificate must be lodged
within 14 days

14. • Same- sex
• Consent was not given by
one individual
• One or both of the
individuals was married
previously
• One or both of the
individuals were too young
• Too closely related
• If the court decides the
marriage to be invalid, in the
eyes of the law it is nullified (s21)
Void Marriages

15. • In the Marriage of S
• 15yr old that didn’t give consent for marriage
• Corbett v Corbett 1970 and Re Kevin (2001)
• Marriage between two women declared valid
• Di Mento v Visalli (1973)
• Forced into Marriage. Consent was not given
Case Law:
Hint: You only need to use a small amount of information
from the cases you use in Extended Responses. Use them to
build your argument, not dominate it

16. • Mutual duties of husband and Wife
• The law does not set out partners duties and responsibilities. It
does intervene where the marriage breaks down.
• Consortium – care and affection for each other
• Traditional belief – Unito Caro ‘the man and wife are one
and that one is the husband’
• Maintenance
• Financial payment made by one spouse to contribute to the care
and welfare of other spouse and/or children
• Spousal Maintenance is not automatic and may only be granted
for a limited period
Legal Consequences and Responsibilities of
Marriage

17. • Property Rights
• Marital home – can be
purchased in equal or unequal
shares
• Ownership is based upon who
paid for it
• Contracts
• Contracts are not altered by
marriage
• Spouses cannot be held
responsible for each others debts
Hint: Generally the law doesn’t intervene in
marriage life

18. • Wills
• A document that states how a person intends to
have his/her property distributed after death
• Intestate – Person who does not leave a will
• Executor – person who administers the
estate(property)
• Family members can apply for a family provision
order to be included in the Will

19. • Ex Parte Willis (1997)
• Marriage under the age of 18 case
• Eliades v. Eliades (1981)
• Couples are expected to help maintain each other
Case Law:
Hint: You only need to use a small amount of information
from the cases you use in Extended Responses. Use them to
build your argument, not dominate it

20. Alternative family
relationships

21. • 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
1. Aboriginal and Torres Strait
Islander Customary Law
Marriage

22. • 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
2. Single-Parent Family

23. • 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 over time
3. Blended Family

24. • 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
4. De-Facto Relationships

25. • 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
5. Same-Sex Relationships

26. • Illegal in Australia
• Overseas polygamous marriage may be deemed legal
in the best interests of the child
6. Polygamous Marriage

27. Polygamy Around the
World

28. • Views on different family arrangements
• Society views towards same-sex marriages
• Increase in women’s financial independency and
supporting children
• Children are not owned but cared and protected by both
parents
• Responses to the way domestic violence is treated
• Birth technologies becoming popular
Theme and Challenge Time:
Changes to family law as a response to changing values in
the community

29. Legal rights and
obligations of parents
and children
• 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

30. • Protection of children under CROC
• CROC is used by courts to develop common law regarding
protection of children
• Many principles of CROC are embedded/reinforced into
federal/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
Derived from International Law

31. • Paramountcy of the Child
• 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
Family Law Act 1975 (Cth)

32. • 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

33. Parents responsible
for truancy

34. • 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
• Family and Community Services (FACS) 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 causes
Parental Neglect - NSW

35. Smacking children

36. • 1. Evaluate the influence of the UN CROC on
Family Law
• 2. Explain the concept of ‘best interests of the child’
as elaborated by the Family Law Act 1975 (Cth)
• 3. Explain the concept of ‘Parental Responsibility’
giving examples
Question Time:
Hint: These 3 questions are important to major
themes in family law

37. Adoption
• Process of transferring parent rights and
responsibilities from biological parents to adoptive
parents

38. • 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
Adoption Act 2000 (NSW)

39. Adoption law

40. • 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’
Who can Adopt?

41. Adoption in australia

42. • New birth certificate issued
• Adoptive parents now have legal responsibility
• Child has the right to inherit the estate of their
adoptive parents
Adoption Approved

43. • Child’s culture needs to be preserved
• In NSW, prospective parents apply through FACS
• Child must meet migration standards otherwise
department of immigration and citizenship may be
refused
Adoption Overseas

44. • The Adoption Act 2000 (NSW) allows relinquishing
parents and adopted children the right to request
information from FACS
• 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 on Biological Parents