Year 12 Legal Studies
Marking Criteria- Assessment #3
Question 18 (a)
Evaluate the effectiveness of Family Law in resolving conflict and encouraging cooperation.
Introduction
Sentence 1- broad state about family law- what is it? Importance? Definition of a family.
statisitics
Sentence 2- how has families changed- structure/ issues/ morals-values-ethics and link to how
this change may cause conflict and require law reform to encourage coop
Sentence 3- cite some examples of law change eg Family Law Act 1975- no fault divorcedecreased conflict via improved ease of access and better resource efficiency. Make a
judgment- overall achieves objective of increase coop/resolved conflict.
Sentence 4 however- not all legal responses have been effective- eg status of de facto
relationships not equal- may cause conflict, and future law reform may be necessary given
society’s changing composition (esp de factos), notions of justice and new tech.
Sentence 5 (optional)- purpose of the paper.
Remember- paraphrase question within intro
Main body
P1. Brief background of family law development- historically, no divorce and diverse laws
governing marriage until Constitution s51 exclusive powers- not enacted until late 1950s with
Matrimonial Causes Act 1959 and Marriage Act 1961- uniform laws make consistency,
predictable, access, equality, resource efficiency etc (no need to use all- just some and make a
clear link to either society/individual/or both)- reduces possible conflict. Look at legal
requirements of marriage- age/consent/consanguinity/witnesses/duties and responsibilitiesuse a case to illustrate (eg re Kevin/ Eliades v Eliades)
P2 however- marriage has excluded some alternate family groups esp. since statistical growth
of other family types (de facto 23%) eg / same sex via codification of Hyde v Hyde- issues of
equality and access- increased conflict. Nonetheless, the law surrounding marriage is
consistent and reflects society’s standards and expectations (eg polygamous
relationships/bigamy) and various laws eg Property (Relationships) Amendment Act 1999
(NSW), have eliminated much discrimination in regard to same-sex r-ships/domestic
relationships in regards to property/equality/access/protection of rights - therefore
encouraging cooperation. Use a case to illustrate (Hope and Brown v NIB Health Fund)
(there was no requirement of depth in this section but in HSC a lot more de facto
relationships and the development of law would be expected)
P3/P4- from marriage link to dissolution of marriage. Over time, the ease/accessibility of
divorce has altered according to society’s changing standards and expectations (although
some argue too easy to dissolve), and reduce conflict/encouraged coop. Start with
matrimonial causes act 1959- then Family Law Act 1975- no fault divorce/ specialised court
etc. continue with major amendments BUT esp. Family Law Reform Act 1995 which lead to
‘best interests of the child’ (from CROC 1990) and increased emphasis on cooperation- eg
counselling/mediation as primary dispute resolution/ parenting plans/ custody to residence/
access to contact. Show resource efficiency (only 10% of couples go to full court hearing)/
balance of individual and society- new concepts of justice/ appeals and review- parenting
plans to orders if disputes, etc. use a case to illustrate (Bv B). Show that ex-nuptial children
are treated equally with handing over residual power to Commonwelath; however, maybe
ineffective due to cross-vesting issues/ access/ protection.
P6- From children issues, look at family law’s approach to property division (in the marriage
of Kemp), superannuation (family law legislation amendment (superannuation) act 2001 and
spousal maintenance. Mention financial and non-financial contributions to financial orders as
well as future needs (this is an area of ineffectiveness for de facto couples- no future needs
consideration so unequal recognition/protection). Consider wills and probate (Family
Provision Act 1982) and also show how these court decisions are first encouraged via
cooperation and then adjudicated with as less conflict as possible- again, parenting plans,
financial agreements (pre-nuptials becoming more accepted) and maybe cohabitation
agreements. Link here to Child Support (Assessment) Act 1989 in regards to
enforceable/effectiveness and the non-compliance regime of the Family Court (which may
involve imprisonment for severe violations)
P7 another area of family law is domestic violence between family members. Show changes
to law reflecting society’s changing morals/values and ethics- Crimes (Sexual Assault)
Amendment Act 1983- protection from ‘rape in marriage’. Crimes (Amendment) (Apprended
Violence) Act 1999 (NSW) and the use of ADVOs/APVOs- enforceability/ ease of access/
protection- link to enforceability factors above in parenting plans/orders, and show how the
Family Court must consider issues of alleged domestic violence. Criticism- still higher
incidence of domestic violence (SHOW STATS!) so not preventing undesirable behaviour
(ineffective?/increased conflict?)/ enforceability of family court injunctions difficult (civil
proceedings). Violence against children- child neglect/abuse/uncontrollable children- as a
result of CROC, bolstering of Children (Care and Protection)- Act and mandatory reporting –
effective/increasing cooperation or conflict? Protection versus resource efficiency. Violence
by children- Young Offenders Act 1997 (NSW)- different purposes of punishment/ best
interests of the child/ legal aid/ incarceration as a last reort- effective? Yes- protection/ Nosociety’s expectations to punish offenders esp victm. Perhaps show Children (Protection and
Parental Responsibility) Act 1997- may be a knee-jerk reaction that is ineffective and open to
abuse by authorities (again increased conflict and decreased coop. between certain segments
of community and police) and/or family law has mandated various laws re autonomy
(medical consent, for example), and these may violate the freedom/rights of young persons
and cause conflict/violence
P8- another area is birth technology/ IVF/ surrogacy- link CROC to Status of Children Act
1996 (Cth). Due to residual power, laws involving paternity/surrogacy/etc are inconsistent
and therefore could be ineffective, causing increased conflict between disputing parties (esp
surrogacy). Use case law- (Re Evelyn). Show how Status of Children Act 1996 has reduced
conflict over paternity (male sperm donors- see B v J). Move on to adoption, and show how
the Adoption Act 2000 regulates adoption and reduces conflict (except for perhaps same-sex
couple adoption- issues of inequality balanced with community standards). Other areas of
ineffectivess maybe rights of adopted children to know biological parents and the rights of
those parents to anominity.
Conclusion
Sentence 1- restate the broadness of family law- why it’s important (basic unit of society) and
how the law must respond to ever-changing social values surrounding families. Restate how
some changes (if not most) have encouraged cooperation/reduced conflict and overall, is
effective from both an individual’s (protection/access/resource efficiency) and society’s
(appeals/ community expectations/ resource efficiency) perspective BUT there is still areas of
ineffectiveness (same-sex/de facto relationships esp cross-vesting issues and no future needs
considerations/ domestic violence incidences/ surrogacy) that need future law reform to
achieve law’s objectives of increased coop/reduced conflict
Year 12 Legal Studies
Marking Criteria- Assessment #3
Question 18 (b)
Assess the role of legal processes and institutions in achieving justice for family
members
Introduction
Sentence 1- broad state about family law- what is it? Importance? Definition of a family.
statisitics
Sentence 2- how has families changed- structure/ issues/ morals-values-ethics and link to how
this change has caused and may require law reform to achieve justice.
Sentence 3- cite some examples of positive law change eg Family Law Act 1975- no fault
divorce- decreased conflict via improved justice for family members esp women
Sentence 4 however- not all legal responses have achieved justice- eg status of de facto
relationships not equal- may cause conflict.- and future law reform may be necessary given
society’s changing composition (esp de factos), notions of justice and new tech
Sentence 5 (optional)- purpose of the paper.
Remember- paraphrase question within intro
Main body
P1.what is justice?- access/equality/equity/fairness/human rights. Show Brief background of
family law development- historically, no divorce and diverse laws governing marriage until
Constitution s51 exclusive powers- not enacted until late 1950s with Matrimonial Causes Act
1959 and Marriage Act 1961- uniform laws make consistency, predictable, access, equality,
equity etc (no need to use all- just some and make a clear link question). Look at legal
requirements of marriage- age/consent/consanguinity/witnesses/duties and responsibilitiesuse a case to illustrate (eg re Kevin/ Eliades v Eliades)- also show increased notions of justice
esp. the repudiation of the notion of ‘unito caro’- one body/one flesh for increased equality
for women.
P2 however- marriage has excluded some alternate family groups esp. since statistical growth
of other family types (de facto 23%) eg / same sex via codification of Hyde v Hyde- issues of
equality/ equity/ access- denial of human rights?. Nonetheless, the law surrounding marriage
is consistent and reflects society’s standards and expectations (eg polygamous
relationships/bigamy) and various laws eg Property (Relationships) Amendment Act 1999
(NSW), have eliminated much discrimination in regard to same-sex r-ships/domestic
relationships in regards to property/equality/access/protection of rights - therefore increasing
justice for family members within such alternate family structures. Use a case to illustrate
(Hope and Brown v NIB Health Fund) (there was no requirement of depth in this section but
in HSC a lot more de facto relationships and the development of law would be expected)
P3/P4- from marriage link to dissolution of marriage. Over time, the ease/accessibility of
divorce has altered according to society’s changing standards and expectations (although
some argue too easy to dissolve), Start with matrimonial causes act 1959- then Family Law
Act 1975- no fault divorce/ specialised court etc. (always showing increased
equality/access/fairness) continue with major amendments BUT esp. Family Law Reform Act
1995 which lead to ‘best interests of the child’ (from CROC 1990) and increased emphasis on
justice for children (esp human rights- right to be heard/more input etc) - eg
counselling/mediation as primary dispute resolution/ parenting plans/ custody to residence/
access to contact. Consider resource efficiency (only 10% of couples go to full court
hearing)/ balance of individual and society- new concepts of justice/ appeals and reviewparenting plans to orders if disputes, etc. use a case to illustrate (Bv B). Show that ex-nuptial
children are treated equally with handing over residual power to Commonwelath; however,
maybe ineffective due to cross-vesting issues/ access/ protection- justice?
P6- From children issues, look at family law’s approach to property division (in the marriage
of Kemp), superannuation (family law legislation amendment (superannuation) act 2001 and
spousal maintenance. Mention financial and non-financial contributions to financial orders as
well as future needs (this is an area of injustice for de facto couples- no future needs
consideration so unequal recognition/protection). Consider wills and probate (Family
Provision Act 1982) and also show how these court decisions are first encouraged via
cooperation and then adjudicated with as less conflict as possible- again, parenting plans,
financial agreements (pre-nuptials becoming more accepted) and maybe cohabitation
agreements. Link here to Child Support (Assessment) Act 1989 in regards to
enforceable/effectiveness and the non-compliance regime of the Family Court (which may
involve imprisonment for severe violations- justice for men esp. if they can’t afford
maintenance?)- ALWAYS LINK TO JUSTICE- EITHER IMPROVED OR LACKING!!
P7 another area of family law is domestic violence between family members. Show changes
to law reflecting society’s changing morals/values and ethics- Crimes (Sexual Assault)
Amendment Act 1983- protection from ‘rape in marriage’. Crimes (Amendment) (Apprended
Violence) Act 1999 (NSW) and the use of ADVOs/APVOs- enforceability/ ease of access/
protection- link to enforceability factors above in parenting plans/orders, and show how the
Family Court must consider issues of alleged domestic violence. Criticism- still higher
incidence of domestic violence (SHOW STATS!) so not preventing undesirable behaviour
(unjust?/increased conflict?)/ enforceability of family court injunctions difficult (civil
proceedings). Violence against children- child neglect/abuse/uncontrollable children- as a
result of CROC, bolstering of Children (Care and Protection)- Act and mandatory reporting –
just?/increasing cooperation or conflict? Protection versus resource efficiency. Violence by
children- Young Offenders Act 1997 (NSW)- different purposes of punishment/ best interests
of the child/ legal aid/ incarceration as a last reort- Justice? Yes- individual/ No- society’s
expectations to punish offenders esp victm. Perhaps show Children (Protection and Parental
Responsibility) Act 1997- may be a knee-jerk reaction that is unjust and open to abuse by
authorities (again increased conflict and decreased coop. between certain segments of
community and police) and/or family law has mandated various laws re autonomy (medical
consent, for example), and these may violate the freedom/rights of young persons and cause
conflict/violence (human rights)
P8- another area is birth technology/ IVF/ surrogacy- link CROC to Status of Children Act
1996 (Cth). Due to residual power, laws involving paternity/surrogacy/etc are inconsistent
and therefore could be unjust, causing increased conflict between disputing parties (esp
surrogacy). Use case law- (Re Evelyn). Show how Status of Children Act 1996 has reduced
conflict over paternity (male sperm donors- see B v J) and allowed offspring access to justice.
Move on to adoption, and show how the Adoption Act 2000 regulates adoption and reduces
conflict (except for perhaps same-sex couple adoption- issues of inequality balanced with
community standards). Other areas of injustice maybe rights of adopted children to know
biological parents and the rights of those parents to anominity.
Conclusion
Sentence 1- restate the broadness of family law- why it’s important (basic unit of society) and
how the law must respond to ever-changing social values surrounding families in achieveing
justice. Restate how some changes (if not most) have improved justice for family members
BUT there is still areas of ineffectiveness (same-sex/de facto relationships esp cross-vesting
issues and no future needs considerations/ domestic violence incidences/ surrogacy) that need
future law reform to achieve law’s objectives of equality/access/equity/fairness/human rights.