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Family Law Study Sheet

Study Sheet: Family Law Issues
Shift from finding parents for children who need them  children who needs the parents =
benefit and best interest for children
Adoption Act 2000 (NSW): Guidelines on who can adopt  reflects the best interest of the
child e.g. age limits (have to be 16-18 years older than the child), character requirements
Adoption Amendment (Same Sex Couples) Act 2010 (NSW): Now allows same sex couples to
adopt  upholds the idea of the best interests of the child  law reform reflecting the
changing social values of society
Adoption Information Act 1990 (NSW): Prior to this adoption was kept undisclosed (children
didn’t know they were adopted)  allowed children to access birth certificate & contact
biological parents
Child Protection Legislation Amendment Act 2014 (NSW): Allows foster parents to adopt
Adopt Change: Actively trying to speed up process  goal = double number of children
adopted and halve the time it takes to do so
To prove this: “live separately and apart” for 12 months
Intention: must be intention form both parties to end marriage and live separately and apart
for the 12 months
Kiss & Makeup Clause: allows for reconciliation for up to 3 months without requiring restart of
12 month separation period. If after 3 months, the 12 months would have to resume for the
makeup clause to be started again
Matrimonial Causes Act 1959 (Cth): Gave the power of divorce to the Commonwealth, not
the states anymore  fault-based except for insanity, presumption of death or if separated
for 5 years (Divorce having to be someone’s fault)
Family Law Act 1975 (Cth): Regulates divorce processes and introduced ‘no fault divorce’ 
Couples married less than 2 years must undergo compulsory counselling
Marriage Act 1961 (Cth): Same-sex couples can now access the Australian divorce system
49,404 divorces granted in Australia in 2018 (ABS)
“Divorce rate has decreased over time” (2018 ABS)  Difficulty in getting a divorce
Study Sheet: Family Law Issues
Legal Consequences of Separation: Children
Agreement  Parenting Plan  Consent Order  Court Order  FDR  Parenting Order
Parenting plans: Written agreement between the parents  Not legally enforceable until it
becomes a court order
FDR: Before they go to court  EFFECTIVE  If you reach your own agreement, more likely to
follow it  Parents know their kids, its better if they decide rather than a judge
Family Law Act 1975 (Cth): The benefit to the child of having a meaningful relationship with
both parents  The need to protect the child from physical or psychological harm became
the most important consideration S60B  “parents should agree about the future parenting
of their child
Family Law Reform Act 1995 (Cth): ^ Best interests of the child are paramount ^  further
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): Best interests of the
child that both parents have equal shared parental responsibility  Parents must undergo
compulsory family dispute resolution before applying for a parenting order (except for cases
involving violence)
Child Support Scheme (Child Support (Assessment) Act 1989 (Cth)): if one parent has the
child more than the other, the one with less time usually pays more child support  CHILD
SUPPORT AGENCY can arrange for payments to be deducted by an employer and sent to
the agency  powers to recover the money such as intercepting tax returns and selling
MRR v GR ('MRR') HCA 2010 (Rosa V Rosa): Orders should not be made for equal or significant
time with both parents unless the arrangement is ''reasonably practicable''
"Shared Babies at Risk of Anxiety" SMH 2010
Legal Consequences of Separation: Property
Preferred option is parties reach their own agreement  if not mediation is compulsory (FDR)
 if mediation unsuccessful court makes financial orders
Family Law Act 1975 (Cth): Sets out the general principles the court considers when deciding
on property disputes
Property (Relationships) Act 1984 (NSW): Included De-facto relationships
Kennon v Kennon (1997): Fault was considered in this case Wife received additional
percentage of the property settlement due to the violence she endured during the marriage
Study Sheet: Family Law Issues
Domestic Violence
Legal System is reactive rather than preventative
Criminal Procedure Amendment (Domestic Violence Complaints) Act 2014 (NSW): Allows for
admission of police recordings into evidence in court  reduces trauma for victims having to
retell events
Crimes (Domestic and Personal Violence) Act 2013 (NSW): Enables senior police to issue
provisional ADVO’s and thus provide immediate protection for victims, can also remove
offenders from the scene
Crimes (Domestic and Personal Violence) Amendment Act 2016 (NSW): Implements the
National Domestic Violence Order Scheme  will recognise DV orders made in other states
and NZ
Bail Act 2013 (NSW): Repeat offenders with a history of serious personal violence offences are
prevented from being granted bail
White Ribbon: Aims to end men’s violence against women  PREVENTATIVE
Ingrid Pulson (2003): Her husband in 2003 killed her children, father and then himself, despite
having an AVO against him
“More than 40 per cent of NSW murders now family violence related” (SMH 2018)
"Domestic violence does not stop at the court room door. There is a risk of re-traumatisation
of victims" (Hon. John Ajaka (2014))
1 in 5 women experience DV by a partner (ABS 2017)
Study Sheet: Family Law Issues
Recognition of same-sex relationships
Anti-Discrimination Amendment Act 1982 (NSW): Prohibit discrimination on the grounds of
1984: Homosexuality was decriminalized in NSW
Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth):
Treats same-sex couples in the same way as de facto and married couples in regard to
financial matters e.g. property settlement
Same Sex Adoption Act 2010 (NSW): Allows same-sex couples to adopt
The Marriage Amendment (Definition and Religious Freedoms) Act 2017
The Gay and Lesbian Rights Lobby: Aim to achieve legal equality for lesbians, gay men and
their families at a state and federal level  safety for LGBTI school kids
Hope and Brown v. NIB Health Funds Ltd (1995) EOC: Refused joint health cover at the "family"
rate for a homosexual couple
Surrogacy and birth technologies
The Miscellaneous Amendments (Same Sex Relationships) Act 2008 (NSW): Allowed for both
female parents to be named as co-mothers with equal status on the birth certificate
Surrogacy Act 2010 (NSW): Made it possible to transfer the parentage of the child from the
birth parent to the prospective parents in the surrogacy contract
The Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008:
Removed discrimination against same-sex de facto couples who wish to have children using
artificial conception
Marita v. Richards 2011: (Because of the 2008 NSW law reform) The lesbian partner replaced
the biological fathers name on the birth certificate. The sperm donor was confirmed to not
be a parent, rather the person in relationship with the mother is deemed to be the parent
"the system of altruistic surrogacy offers little protection for the surrogate." SMH 2014
Study Sheet: Family Law Issues
Care and protection of children
Children and Young Persons (Care and Protection) Act 1998 (NSW) : the course to be
followed must be the least intrusive intervention in the life of the child  the younger the age
of the child, the greater the need for early intervention
Children and Young Persons (Care and Protection) Amendment Act 2009 (NSW)  Wood
Royal Commission
Child Protection (Working with Children) Act 2012 (NSW)
NSW Department of Communities and Justice (DCJ)
Child Protection (offenders Registration) Act 2000: Offenders are subjected to regular police
visits  penalties for breaching there obligations are severe
R v BW & SW NSWSC (2009) (Ebony Case): There had been 17 reports but no protection
worker was assigned to her  Wood Royal Commission Enquiry 2009  triggered the 2009
legislative change, including increasing the reporting threshold to 'significant risk of harm'
and greater inter-agency cooperation
“Australia facing an 'epidemic of child abuse and neglect" - ABC News 2018
Non-Indigenous children receive child protection services 8% more than Indigenous children Australian Institute of Health and Welfare 2018 (AIHW)