CHAPTER 12
Option 3: Family
REVIEW 12.1
1 Define ‘family’.
‘Family’ is a broad concept that is not easily defined. The more traditional and
easily recognisable family relationship is one based on marriage. However, as
society has changed, so too has the structure and recognition of families. The
modern family extends far beyond traditional concepts of blood relations and
marriage to include, for example, de facto relationships, same-sex relationships,
single-parent families, adopted families, customary marriages, blended families
and extended families.
2 Explain how families have changed. Provide examples to illustrate your
answer.
Family law has continued to change in order to extend protection to members of
domestic relationships beyond the traditional marriage relationship. Today, many
people in domestic relationships choose not to marry. People who do marry often
get divorced, and may later re-marry or form new domestic relationships.
Domestic relationships between same-sex partners are also common, or at least
more openly practised than law and society had previously allowed. There are also
some marriage-like relationships that are performed outside traditional rites, like
customary marriages.
One of the primary concerns of family law is to protect both the rights and
interests of partners to such relationships, but also the rights of children of the
relationship. Although society and the law have been slow to accept change, in
recent years the law has progressed significantly in extending rights and imposing
corresponding obligations on all members and possible variations of domestic
relationships, so that all legitimate interests are protected and family disputes can
be adequately resolved.
3 Outline the main function of families.
The main function of the family is the care and protection of its members.
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4 Explain the meaning of each part of Lord Penzance’s definition of ‘marriage’
and use examples to illustrate each part.
In the case of Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, Lord Penzance,
in his decision, stated that a marriage was the ‘voluntary union for life of one man
and one woman, to the exclusion of all others’. The definition of marriage adopted
by the Federal Government in the Marriage Act 1961 (Cth), as amended in 2004, is
based on this traditional definition. The meaning of the elements is as follows:
 marriage must be voluntarily entered into — it is not legally binding if, for
example, one of the parties was forced or tricked into the marriage
 marriage is for life — it is intended to be permanent; however, this is not
necessarily permanent because a married couple do have the right to divorce
 the specification of one man and one woman indicates that the parties to the
marriage must be of different sexes — this was added by the Howard federal
government in 2004 to specifically exclude same-sex marriages
 to the exclusion of all others — this means that marriage is the union of two
people only, and so excludes relationships with more than one spouse, even
though this is accepted in some cultures and societies.
5 Define ‘prohibited relationship’, providing examples of whom a person is and
is not permitted to marry.
There are certain relationships that are prohibited for marriage. A person cannot
marry anyone who is closely related to him or her, either by ‘blood’
(consanguinity) or by marriage (affinity). This means that a person cannot marry
his or her descendant, ancestor, brother or sister. This also applies to half-siblings
and to adopted siblings, which includes adopted descendants and ancestors who
are related to the person by marriage. However, a person can marry his or her
uncle or aunt, his or her niece or nephew, or a first cousin.
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REVIEW 12.2
1 Outline the reasons why a marriage may be declared invalid.
A marriage may be declared void if the requirements for a valid marriage are not
met. Examples include:
 consent was not freely given by one of the parties
 one or both parties at the time of the marriage was married to someone else
 the parties were of the same-sex
 one or both parties were too young
 the parties are too closely related, by blood or marriage
 the marriage did not meet the requirements set out in the Marriage Act 1961
(Cth).
2 Explain why a court may order a person to provide financial support to his or
her spouse after the marriage has ended.
The law considers that a husband and wife are mutually responsible to one
another. The law tends to intervene only in cases where the marriage has broken
down, where one or both parties to the marriage have not fulfilled their
responsibilities, or when spousal rights have been infringed.
‘Maintenance’ is a financial payment made by one spouse to contribute to the
care and welfare of the other spouse and/or children of the marriage. Under
section 72 of the Family Law Act 1975 (Cth), if someone is unable to support
himself or herself, his or her spouse is obligated to provide maintenance. Some
examples of situations where this is required are:
 the person has the care and control of a child of the marriage who is under 18
years old
 the person is not able to be employed because of age or physical or mental
incapacity.
3 Explain who owns property purchased:
a by one spouse before marriage.
Any property owned by a person prior to marriage still belongs to that person after
marriage.
b by one person during the marriage.
Any property purchased by one spouse during the marriage remains the property of
the spouse who paid for it.
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c by the couple during the marriage.
Properly bought jointly by the couple during the marriage will also be owned
jointly. However, this will depend on the arrangement under which the property
was bought. For example, when two people buy a house together, they can choose
to own the properly jointly under both names (as joint tenants), or specify
separate ownership in equal or unequal shares (as tenants in common).
4 Outline the factors that are taken into account when deciding ownership of
property in the event the relationship breaks down.
Marriage does not automatically change ownership of property. However, in the
event of a breakdown of the marriage, factors such as the length of time the
parties have been married, or the financial and non-financial contributions,
including any improvements made to the property, can alter ‘ownership’.
5 Explain how marriage affects wills.
Marriage will automatically cancel any pre-existing will a person has made, unless
the person made the will in anticipation of marriage. Generally, with the
exception of some monies that will be deducted for probate, the entire property
will go to the surviving spouse, or the spouse and any children of the marriage.
Divorce or annulment of marriage will cancel any provision in an existing will that
favours the divorced spouse.
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REVIEW 12.3
1 Discuss the status of traditional Aboriginal and Torres Strait Islander
marriages under federal and state law.
Relationships within Aboriginal and Torres Strait Islander (ATSI) communities are
bound by traditions and enforced through customary law. However, typically, ATSI
customary law marriages do not conform to the requirements of a valid marriage
under the Marriage Act 1961 (Cth), as the marriages are generally not recorded or
registered with the necessary authorities.
However, for children of customary marriages, all children from any type of
relationship are protected under relevant state and federal legislation.
Furthermore, courts making decisions about parental responsibility must take
account of kinship obligations and child-rearing practices of the child’s culture. In
addition, the relationship between the couple may still be recognised under de
facto domestic partnership laws.
2 Identify some challenges for single-parent families and ways the federal
government has tried to address these challenges.
According to the recent statistics from the Australian Bureau of Statistics, one in
five children live in single-parent families. Single parents can confront many
issues, socially and legally. They may have difficulty pursuing rights in court and
obtaining adequate legal protection, including the high cost associated with taking
a matter to court. This may discourage single parents from actively pursuing the
protection of their rights through the courts.
One of the ways the government has attempted to assist single parents is
through the Child Support Scheme, which was introduced in 1988 to enforce
maintenance orders on parents who do not reside with their dependent children.
3 Discuss the rights of stepchildren under:
a federal law
Step-parents do not have the same legal responsibilities for the care and control of
their stepchild as they would for their natural child. For example, there is no
automatic right or duty to discipline, or to make decisions regarding the child’s
health or welfare.
Under federal law, in the Family Law Act 1975 (Cth), a step-parent is not
responsible for the maintenance or support of a partner’s child; the financial
obligations towards a child remain with the child’s parents. However, they may be
required to pay support if a court is convinced that they do have a duty to
maintain the child, or if, for example, the family has existed for a long time, or
the natural parent has died.
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b state law.
State laws regarding stepchildren are relevant in the case of adoption, wills and
estates. For example, for a stepchild to claim successfully against the estate of a
step-parent, they must prove that they were financially dependent upon the stepparent.
4 Explain the interaction of state and federal law with respect to adoptions of
stepchildren by a step-parent.
If a step-parent intends to adopt their stepchild, they must first apply to the
Family Court under federal law (Family Law Act 1975 (Cth)). If it is approved, the
step-parent must then apply to the relevant state Supreme Court for an adoption
order.
Under NSW state adoption laws (Adoption Act 2000 (NSW)), the step-parent
must have lived with the child and the child’s natural or adoptive parent for no
less than two years, and the child must be at least five years old.
If a step-parent does adopt his or her partner’s children, these children will
have the same legal rights as children born naturally into the parental relationship.
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REVIEW 12.4
1 Define ‘de facto relationship’.
A de facto relationship is defined in section 4AA of the Family Law Act 1975 (Cth)
as one in which:
 the partners are two adult people who are not legally married to each other
 neither is the parent, child, descendant or sibling of the other, and
 they have a relationship as a couple living together on a genuine domestic basis.
2 Explain the status of same-sex relationships with respect to:
a property settlements
The Property (Relationships) Act 1984 (NSW) recognises same-sex relationships as
having the same legal standing as heterosexual de facto relationships, and provides
the same protection regarding property settlements.
b wills
Similarly, same-sex couples have the same rights as heterosexual de facto couples
regarding wills, and for partners of individuals who die intestate. These
entitlements for de facto couples are also similar to those of married couples.
c giving evidence against one’s partner in a criminal proceeding
Under the Uniform Evidence Acts, a de facto partner in either a same-sex or
opposite-sex relationship cannot be compelled to give evidence against his or her
partner in certain criminal proceedings.
d superannuation and identify whether the matter is governed by state or
federal law.
The federal government amended superannuation laws in 2008, together with
many other areas of federal law, to remove previous discriminations against
people in same-sex relationships, and to ensure they were entitled to the same
rights under federal law as heterosexual couples.
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REVIEW 12.5
1 Evaluate the influence of the UN Convention on the Rights of the Child on
family law in Australia.
The UN Convention on the Rights of the Child (CROC) was adopted in 1989 and
obliges states to protect persons under 18 years of age from violence,
discrimination, exploitation and neglect. Australia ratified CROC in 1990.
Australia has not passed legislation directly incorporating CROC into domestic
law, and the implementation of obligations has been left up to state governments,
who have embedded many of the principles in state legislation. Some examples
include the primary consideration of the ‘best interests of the child’, or the right
of children to express opinions about and be heard in proceedings that affect
them.
International instruments can also, in some limited circumstances, be used by
courts in interpreting statutes or developing the common law. In addition, the
Australian Human Rights Commission can refer to it when hearing complaints of
discrimination.
2 Explain the concept of ‘best interests of the child’ as elaborated by the
Family Law Act 1975 (Cth).
Part VII of the Family Law Act 1975 (Cth) makes clear that the chief factor that
courts must take into consideration when making children’s orders is the best
interests of the child. ‘Best interests’, as listed in section 60B of the Act, include:
 the benefits of a meaningful involvement in their lives by both parents
 protection from physical or psychological harm from abuse, neglect or violence
 adequate and proper parenting to help the children achieve their full potential.
Other relevant factors include:
 children have the right to know and be cared for by both their parents
 children have the right to spend time and communicate regularly with their
parents, and others significant to their welfare, care and development
 parents share responsibilities for their children’s care and welfare
 parents should agree about parenting matters
 children have the right to enjoy their culture, including the right to enjoy it
with other people who share it.
3 Explain the concept of parents’ responsibility to their children, giving
examples.
The law allows parents to raise their children as they see fit, within general
guidelines. Parental responsibilities to a child are not specifically defined in the
legislation, but some examples include:
 providing adequate food and shelter
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



providing access to education
consenting to medical treatment
providing discipline
protecting the child from harm and ensuring that he or she is not exposed to
illegal activities
 ensuring that others are not harmed by their child.
4 Identify the requirements that must be satisfied before a person can leave
school.
In NSW, it is compulsory for a child to attend an educational facility from the age
of six until the minimum school-leaving age, which is 17 years, or the completion
of Year 10. Changes to the Education Act 1900 (NSW) in 2009 now require every
young person who has completed Year 10 to be in some form of education, training
or employment until he or she reaches the age of 17.
5 Explain the requirement that physical punishment of children must be
‘reasonable’, identifying what must be considered. Justify this requirement.
Parents have the right to discipline their child by using physical force in order to
correct their child’s behaviour, but the physical force must be “reasonable, having
regard to the age, health, maturity or other characteristics of the child, the nature
of the alleged misbehaviour or other circumstances” (Crimes Act 1900 (NSW), s
61AA).
What is considered to be reasonable and acceptable discipline can vary from
culture to culture, but the range of punishment that will not be considered
reasonable by a court in Australia includes striking the head or neck of a child,
causing pain lasting for more than a short period, shaking a young child and
striking a child with a closed fist.
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REVIEW 12.6
1 Explain why consent to medical treatment is necessary, and why age
determines legal capacity to give consent.
Consent is necessary before a doctor can carry out any treatment. As with any
decision carrying risk, a person’s consent implies an understanding of what is
involved, and agreement or acceptance of the procedure and the risks.
For children under 14, the consent of a parent (or guardian) is required, and
parents have the right to authorise any such treatment considered in the child’s
best interests.
For those between 14 and 16, either the child’s consent or a parent’s consent
is required. Medical or dental treatment of young persons aged 16 to 17 requires
the consent of the young person. However, if the parents refuse medical or dental
treatment, a court can still authorise the treatment.
2 Explain the term ‘autonomy’ and how it is relevant to minors.
A child’s ability to make his or her own decisions changes as he or she reaches
maturity, and this is reflected in the law regarding children’s autonomy and rights.
Children are generally regarded as not yet having developed the cognitive abilities
and the capacity to understand the consequences of their actions, and are
considered unable to make fully informed decisions. In an effort to protect
children, the law does not allow children to make certain decisions if they do not
have sufficient capacity to understand what is occurring.
3 Explain the term ‘presumption of parentage’.
The presumption of parentage removes older, discriminatory provisions of the law
regarding parents born outside of marriage. In older times, such children may have
had no legal status or rights regarding issues like inheritance or maintenance.
However, as society and the law modernised, the rights of all children to be cared
for by their parents was recognised. The law allows presumptions to be made
about a child’s parentage, unless evidence can be shown to disprove it, for
example DNA evidence or voluntary recognition.
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REVIEW 12.7
1 Explain the concept of adoption and discuss how adoption changes the
relationship between the child and the relinquishing parents.
Adoption is the process of transferring parental rights and responsibilities from the
biological parents (or relinquishing parents), to the new, adoptive parents. It recreates the legal relationship between the child and his or her parents.
2 List the conditions that must be met by prospective adoptive parents.
Evaluate these requirements.
Because adoption laws are primarily concerned with the rights of the child, the
law has established strict guidelines as to who can adopt. The following
restrictions must be met by prospective adoptive parents in NSW:
 applicants must be over 21 years of age, but under 51 years of age
 the prospective male parent must be at least 18 years older than the child, and
the female parent must be at least 16 years older than the child
 individuals who are not in a relationship can apply as single applicants
 couples can be either married or de facto, but together for no less than two
years; legislative amendments passed in 2010 removed any distinction between
heterosexual or same-sex couples
 the applicant must be a person of good repute, be a fit and proper parent, and
be able to fulfil the responsibilities of a good and caring parent
 where applicable, the child’s culture, language and religion will be taken into
account when determining an adoption order, as well as the principle that the
child’s given name, identity, language and cultural and religious ties should, as
far as possible, be preserved.
3 Explain why adopted children may want their birth parents’ personal
information. Critically analyse whether they should have complete access to all
information regarding their parents and possible siblings.
Responses to this question will differ between students. For the second part of
the question, some possible arguments include:
 respecting wishes of parents not to be contacted
 respecting wishes of children not to be contacted
 emotional need for the child to know of hos or her own biological parents
 emotional need of biological parents who later wish to track down the child
 possibility of medical need to know of biological parent or child
 possibility of disruption to original or adoptive family if contact is made
 need for proper processes to be in place
 need for processes to allow for contact where deemed necessary.
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REVIEW 12.8
1 Identify the sole ground for divorce in Australia, and the consequences of
there being only one ground.
Under section 48 of the Family Law Act 1975 (Cth), the only ground for divorce is
the irretrievable breakdown of the marriage. The single ground removes the need
for either party to find fault. This helps to make the divorce process faster, less
costly and less emotionally difficult for the parties involved.
2 Describe what it means for a couple to be living separately and apart.
The parties can be held to be living separately and apart even if they are still
sharing the same house. They will need to show that they are leading separate
lives, even if still living in the same house: for example, they sleep separately, do
not socialise with friends together, do not share meals, and no longer share
finances.
3 Contrast ‘shared parental responsibility’ and ‘shared parental care’.
The focus of the law is not on ‘parental rights’, but rather on ‘parental
responsibility’. Parents are responsible for the long-term care of their child and
the presumption is that it is in the best interests of the child for both parents to
share this responsibility equally. Therefore, irrespective of where the child
resides, both parents are still responsible.
Parents are encouraged to make and voluntarily agree to their own
arrangements in relation to the care and responsibility of their children, rather
than asking the court to do so. As part of the ‘best interests’ consideration,
however, children have the right to know and be cared for by both their parents,
and have the right to spend time and communicate regularly with their parents.
For this reason, shared parental care is usually considered in the child’s interests,
despite the wishes of one or other parent, unless there is a reason to prove
otherwise.
4 Identify the considerations the court must take into account when
determining the best interests of the child.
The two primary considerations include the child’s right to maintain a meaningful
relationship with both parents, and the need to protect the child from harm.
Additional considerations include factors that may modify the ability of parents to
share the parenting of the child equally, such as the views of the child, the nature
of the child’s relationship with each parent, and where the parent lives.
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REVIEW 12.9
1 The following tasks relate to the Case Space box on the left.
a Assess whether a ‘just and equitable outcome’ for all parties was achieved in
this case. Why or why not?
Student responses will differ depending on opinion, but some of the following
points may be relevant:
 the court takes into account many factors to arrive at a just conclusion
 even though the property is owned in the ex-husband’s name, the court found
that he may still be liable for the value due to his ex-wif
 this includes calculation of contributions by both the parties during the relevant
time they were together, including calculation of the debt and the assets
 there were no children of the marriage to consider, and both were deemed
mature and independent enough not to be restricted in earning capacity in the
relationship; so differences in earnings were not taken into account
 the outcome appears to be a just reflection for both parties of the true financial
contributions made toward the assets, balanced by the financial debts jointly
acquired.
b Describe the factors that are taken into account when deciding the allocation
of property after a marriage or de facto relationship has broken down.
The court will consider certain factors when determining property allocation under
the Family Law Act, including:
 the financial and non-financial contributions to the property by both parties
(including contributions made as homemaker or carer for any children)
 the effect of the subsequent property allocation order on the earning capacity
of either party
 the age of both parties and the income, property and financial resources of both
parties
 whether either party has the care and control of a child of the marriage
 other contributions, such as any inheritance and the acquisition, conservation
and improvement of any assets, including maintenance of the family home or
working for the family business.
2 Outline the major changes that have been made in family law regarding
property allocation.
Some of the major changes include:
 broadening of the definition of property to include homes, bank accounts,
companies and partnerships, shares, superannuation and household goods
 ability to apply for consent orders if the couple can agree on allocation
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 application of the Family Law Act to de facto couples (heterosexual and samesex) for property divisions, which was formerly a state responsibility.
3 Identify and explain the various orders that the Family Court can make.
Some of the orders include:
 order for the disputing couple to attend a conference between the parties to
have them determine a fair and equitable settlement
 order by the Family Court about the allocation of matrimonial property, which
includes all property purchased or acquired during the marriage.
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REVIEW 12.10
1 Identify and explain the various factors that may cause problems within a
family.
Some of the potential problems are listed in Table 12.3 on page 333 of the
textbook. In brief, the three main categories of these include:
 psychological problems
 social problems
 financial problems.
2 Explain what an ADVO is.
An Apprehended Domestic Violence Order (ADVO) is a court order that aims to
protect the applicant from violence and other forms of intimidation or abuse
perpetrated by a family member.
3 Outline the legal remedies that are available to victims of domestic violence.
Victims of domestic violence can press criminal charges, or can apply to the Local
Court for an Apprehended Domestic Violence Order (ADVO). The Family Court may
also award an injunction for personal protection.
4 Explain how the law deals with juvenile offenders.
The law deals with child offenders differently, under the basic philosophy that all
decisions relating to children should be in the best interests of the child. In NSW,
children under the age of 10 cannot be guilty of a criminal offence, as the law
considers a child under 10 as being unable to understand the consequences of their
actions. Children aged between 10 and 14 years are presumed incapable of
committing a crime, but the prosecution may rebut the presumption by proving
that the child knew that the act was wrong.
Children charged with a criminal offence face proceedings in the Children’s
Court, rather than in adult courts. However, the Young Offenders Act 1997 (NSW)
provides alternative options to court for young offenders, including warnings,
cautions and youth conferencing. The long-term goal is to prevent the child from
becoming an offender as an adult.
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REVIEW 12.11
Read the Media Clip and answer the following questions.
1 Given that both parents are equally responsible for the care of their child,
suggest reasons why the father of the child was charged with manslaughter
rather than murder.
Student responses will differ, but some possible factors are:
 murder requires clear intent to cause death, or committing an act with reckless
indifference to another human life; the level of intent for murder is difficult to
prove
 this case appears to relate to extreme, criminal neglect of the child, resulting
from the omission by both parents to adequately care for and feed the child
 this comes under the category of ‘involuntary manslaughter’, as it lacks the
higher level of intent required for murder
 with a lower level of intent required, involuntary manslaughter is significantly
easier to prove in court than murder.
2 Explain what the relevant authorities could have done to prevent the child’s
death.
As mentioned in the article, the NSW Department of Community Services released
a statement saying that, following the case, the child protection system
underwent an extensive, independent review. Changes were implemented to
respond to some of the issues that this case highlighted. This included
strengthening the role of government and non-government agencies to work with
families in crisis and children at risk of harm.
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REVIEW 12.12
1 Explain the concept and purposes of ‘family dispute resolution’. Give
examples of types of family dispute resolution.
Family dispute resolution is defined in the Family Law Act 1975 (Cth) as a nonjudicial process in which an independent practitioner helps people affected by a
separation or divorce to resolve some of their disputes with each other. Types of
dispute resolution services include:
 reconciliation counselling for separating couples who are attempting to
reconcile
 post-separation parenting programs
 mediation.
2 Explain the difference between adjudication and other methods of dispute
resolution.
Adjudication is the determination of a matter by a court judgment or ruling, such
as a decision by the Federal Magistrates’ Court or Family Court. Other methods of
dispute resolution, such as mediation, are not legally binding but rely on discussion
between the parties to try to reach a mutually agreeable solution, to avoid the
matter having to be referred for adjudication by a court.
3 Outline and contrast the tasks of the Family Court and the family law
jurisdiction of the Federal Magistrates’ Court.
The Family Court is a specialised court that hears matters relating to separation,
divorce, and other disputes related to marriage. Its jurisdiction is limited to those
areas controlled by the Family Law Act 1975 (Cth), which include property and
financial matters, maintenance and parenting arrangements.
The Federal Magistrates’ Court was established in 1999 to relieve some of the
case load of the Federal Court and the Family Court, and to reduce the cost and
time required to deal with some federal matters. In its family law jurisdiction, the
court has a similar jurisdiction to the Family Court, in that it can hear matters
relating to divorce, the division of property, and children. However, it cannot hear
any matters related to adoption, or applications concerning nullity or validity of a
marriage. The majority of divorce applications are now heard in the Federal
Magistrates’ Court.
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REVIEW 12.13
1 Explain how and why children are treated differently within the legal system.
The law deals with child offenders differently, under the basic philosophy that all
decisions relating to children should be in the best interests of the child. In NSW,
children under the age of 10 cannot be guilty of a criminal offence, as the law
considers a child under 10 as being unable to understand the consequences of their
actions. Children aged between 10 and 14 years are presumed incapable of
committing a crime, but the prosecution may rebut the presumption by proving
that the child knew that the act was wrong.
Children charged with a criminal offence face proceedings in the Children’s
Court, rather than in adult courts. However, the Young Offenders Act 1997 (NSW)
provides alternative options to court for young offenders, including warnings,
cautions and youth conferencing. The long-term goal is to prevent the child from
becoming an offender as an adult.
2 Explain the two roles of the Children’s Court.
The NSW Children’s Court has two main roles:
 to hear criminal proceedings against persons who were under 18 years of age at
the time the alleged offence was committed
 to hear cases relating to the care and protection of children under the Children
and Young Persons (Care and Protection) Act 1998 (NSW).
3 The emphasis of the Young Offenders Act 1997 (NSW) is to provide
sentencing alternatives other than detention. Outline the types of alternative
orders the Children’s Court can make.
Apart from sentencing options in criminal matters, which are outlined in Chapter 5
of Cambridge Legal Studies — HSC, if the Children’s Court finds that a child is in
need of care, it can make a variety of orders, short-term or long-term, for
example:
 Community Services may be required to supervise the parents to ensure that
they fulfil their parental responsibility
 the court may decide to place the child with a relative, foster family or other
appropriate adult
 contact visits may be permitted to allow the parent(s) and child to maintain a
personal relationship, but such visits are closely supervised and regulated
 a variety of support services may be provided to both parents and children,
including educational, psychological and welfare services.
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4 Explain how non-government organisations support families.
There are a number of non-government organisations that provide support for
families and individuals who may be struggling with personal relationships and
other family issues.
Services provided by these organisations include mentoring, support for new
parents, counselling and relationship advice, assistance with managing conflict and
dealing with violence in the family, emotional support to children of separating
parents, mediation, and advice on creating parenting plans.
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REVIEW 12.14
1 List the issues surrounding same-sex relationships and discuss the
effectiveness of legal and non-legal responses in addressing these issues.
Some of the issues include:
 the Marriage Act 1961 (Cth) and various state legislation, gives heterosexual
couples a number of rights and obligations from which same-sex couples are
excluded
 although the Sex Discrimination Act 1984 (Cth) and state anti-discrimination
Acts protect heterosexual de facto couples against discrimination on the basis of
marital status, same-sex couples do not enjoy the same protection
 in 2001, the Netherlands became the first country to recognise same-sex
marriages
 since then, many countries worldwide have followed; for example, Belgium,
Spain, Canada, South Africa, Argentina or some states in the United States
 some countries and states of Australia have passed other laws to allow
relationship recognition similar to marriage, but under a different name and
with differing degrees of official recognition or rights, for example ‘civil unions’
(UK), ‘civil partnership ceremonies’ (ACT) or a ‘relationship register’ (NSW)
 for some same-sex couples, the desire for legal recognition of their relationship
does not necessarily mean that they want the right to be married; the removal
of institutionalised discrimination and the provision of adequate legal
protections may be a more pressing concern
 in 2004, the Commonwealth Government amended the Marriage Act to expressly
exclude same-sex couples from marriage, after legal challenges began in
Australia to secure recognition of same-sex marriages through the courts
 by amending the definition of marriage, the government specified that marriage
must be between one man and one woman, meaning that any same-sex
marriage is automatically void in Australia, even if performed in a country that
grants same-sex marriages legal status.
With regard to legal and non-legal responses to the issue:
 the Australian Human Rights Commission has held a number of inquiries into
discrimination and human rights violations, making various recommendations on
removing institutionalised discrimination
 in 2007, the Commission recommended amending numerous federal laws that
discriminated against same-sex couples and their children in the area of
financial and work-related entitlements and benefits
 the Rudd federal government adopted these amendments in 2008 to remove
discrimination in most areas of federal entitlements, but refused to alter the
definition of marriage
 the Anti-Discrimination Board of NSW has made a number of submissions to both
the state and federal governments concerning changes to current legislation to
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provide same-sex couples the same legal rights and protections enjoyed by
married couples
 in NSW, amendments have been made in recent decades to state legislation
removing nearly all remaining areas of discrimination, including in September
2009 the removal of the exclusion against same-sex couples adopting
 NSW also introduced a relationship register, which offers token recognition of
relationships, but without legal benefits of marriage
 there are many non-government groups acting to campaign on behalf of samesex couples, including Australian Marriage Equality or the Gay and Lesbian
Rights Lobby.
2 Compare and contrast arguments for changes to practical entitlements only,
and arguments for full recognition of same-sex relationships by means of a
change to the definition of marriage.
Some of the possible arguments include:
 the federal and state government have acted in recent years to remove most of
the remaining areas of discrimination against same-sex couples, especially in
relation to rights, benefits and entitlements, to equate same-sex couples with
the status of heterosexual de facto couples
 however, apart from differing levels of state recognition, there is still no
national institution for recognising same-sex partnerships
 Australian Marriage Equality argues that the legally recognised institution of
marriage should not exclude these couples
 a different classification sends the message that their relationships are of a
lesser standard or character, or that of second-class citizens
 justice may require changing the law to make marriage available to all
Australians who choose it, rather than restricting some citizens to mere civil
unions
 society is constantly changing, as are the traditional concepts of family,
partnership, domestic relationship
 many governments and courts around the world have recognised rights to samesex marriage, including Canada, Norway, Spain, Sweden, Iceland, South Africa,
Argentina or some jurisdictions of the US and Mexico
 those in favour of same-sex marriage argue that it is a matter of social equality
and that human rights and not allowing marriage entrenches both legal and
social discrimination
 non-recognition can negatively affect the children of same-sex relationships
 the restriction does not serve a social purpose, but may discourage stable
relationships between same-sex couples
 those who argue against same-sex marriage argue that same-sex marriage
threatens the traditional concept of marriage
 opponents of same-sex marriage often associate the word marriage with religion
and often believe that state-sanctioned same-sex marriage could threaten those
traditional concepts.
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REVIEW 12.15
1 List the issues surrounding parental responsibility and discuss the
effectiveness of legal and non-legal responses in addressing these issues.
Some of the issues include:
 the concept of parental responsibility has changed over time: in the past,
parents sought ‘custody and control’ over their children, enforcing their
parental rights; now, courts are more concerned with parental responsibility
than rights, and ensuring parents fulfil their legal obligations towards their
children
 parents have joint responsibility for their children, and this responsibility is not
altered if the parents separate, marry or remarry, unless there is a court order
requiring otherwise
 reforms to family law have tended to focus on maintaining positive and
supportive family structures even when parents separate, but also ensuring that
parents meet their responsibilities.
Some of the legal and non-legal responses include:
 in 2006, reforms were introduced to the Family Law Act 1975 (Cth) for the court
to take into account ‘primary’ and ‘additional’ considerations:
o ‘primary’ includes the benefit to the child of having a positive and
meaningful relationship with both parents, and the need to protect the
child from abuse and family violence
o ‘additional’ includes the child’s wishes, the nature of the relationship
between the child and the parent, the financial ability of the parent to
care for the child, and the ability of the parent to provide for the
intellectual and emotional needs of the child
 another change was the notion of ‘substantial and significant time’ to be shared
by each parent if equal time is not considered in the child’s best interests
 however, some argue that this still does not address the misperception that
both parents are ‘entitled’ to time, even if there are other factors to the
contrary
 also, if more time means reduced child support payments, motivations for
seeking shared time are less clear, and may be more difficult to reconcile
 community groups and national organisations like Relationships Australia have
assisted separating parents in negotiating arrangements, and can also provide a
range of information and referrals
 women’s resource centres and parenting networks for mothers, fathers (such as
‘DadsLink’), or both are also valuable.
2 Consider and discuss whether further legislative reforms would be useful to
address the problems raised by parents’ misunderstanding the idea of shared
parental responsibility.
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Some of the possible issues to discuss include:
 in order to ensure that parents meet their responsibilities, the government has
enacted a number of laws
 some of the trends that have arisen since the 2006 reforms to the Family Law
Act suggest that courts and society need to distinguish between families in
which shared care is desirable, and those in which there are concerns that
override this aim
 one possible legal response may be to change the law to distinguish between
equal responsibility and equal time.
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REVIEW 12.16
1 List the issues surrounding surrogacy and discuss the effectiveness of legal
and non-legal responses in addressing these issues.
Some of the issues surrounding surrogacy include:
 under the law, the woman who gives birth to the child is the mother, even if she
uses donated sperm, ova or an embryo
 surrogacy involves an agreement between a commissioning couple and a woman,
where the woman agrees to bear a child for the commissioning couple, and then
gives the baby to the couple when the child is born
 the status of the natural mother as the birth mother can be found in the Status
of Children Act 1996 (NSW), the Family Law Act 1975 (Cth) and the Marriage Act
1961 (Cth), and under common law
 because the child was not conceived within a domestic relationship, the
surrogate mother has exclusive custody rights and she cannot be forced to give
up the child
 the commissioning couple may not have any rights to the child, and the natural
father may have no claim to the child; the Family Court will not enforce a
surrogacy contract
 surrogacy laws differ from state to state, which creates inconsistency,
uncertainty and conflict
 in NSW, there is a distinction between commercial surrogacy (for a fee), which
is illegal, and altruistic surrogacy (for no fee, except expenses), which is largely
unregulated
 some states have enacted laws to clarify issues of parentage
In November 2010, the NSW Parliament passed the Surrogacy Act 2010 (NSW),
which introduces statutory provisions on the transferral of parentage status for
altruistic surrogacies, but makes clear that commercial surrogacies are prohibited
in both within NSW and for NSW residents seeking commercial surrogacies
overseas.
2 Identify the jurisdictional problems in the area of surrogacy and discuss how
the Family Court met these challenges in Re Michael.
Update to the law in Re Michael:
In November 2010, the NSW Parliament passed the Surrogacy Act 2010 (NSW).
Commencing early in 2011, this Act introduces statutory provisions on the
transferral of parentage status for altruistic surrogacies. It also makes clear that
commercial surrogacies are prohibited both within NSW and for NSW residents
seeking commercial surrogacies overseas. NSW residents who procure commercial
surrogacies now risk a fine of over $100 000 and/or imprisonment of up to two
years. The introduction of the legislation is likely to make the outcome of the case
in Re Michael redundant.
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Re Michael:
The case Re Michael: Surrogacy Arrangements [2009] FamCA 691 was heard under
the Family Law Act because NSW lacked clear state legislation relating to
surrogacy at the time. The issue in question was who the parents of a child were if
the child was born as a result of a surrogacy agreement. The case was brought
before the Family Court as an adoption application for the surrogate child.
However, the court found that the adopting parents were barred by the
presumption that, in the absence of other state orders, the child was deemed to
be that of the natural mother. However, the couple were still able to apply to the
NSW Supreme Court for an adoption order under the Adoption Act 2000 (NSW),
which was not bound by the same presumption.
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REVIEW 12.17
1 List the issues surrounding the care and protection of children and discuss
the effectiveness of legal and non-legal responses in addressing these issues.
Some of the issues surrounding the care and protection of children include:
 ‘family violence’ is defined in the Family Law Act as any action or threat of
violence by one family member against another, that causes fear or
apprehension about personal safety, including witnessing that action or threat
 2006 amendments to the Act attempted to ensure children were protected from
both direct harm and harm resulting from exposure to family violence
 the presumption of equal shared parental responsibility does not apply if there
is a risk of child abuse or family violence
 the number of ‘at risk of harm’ reports made to Community Services has
increased steadily and continues to grow; in 2006, 241 003 reports were made
about concerns for a child or young person’s safety, and in the following year,
the number increased by 19 per cent to 286 022
 the legal system has been accused of acting too slowly to protect child victims
of abuse, and that existing mechanisms to protect children are inadequate. An
increasing number of persons under 18 have been placed on care and protection
orders.
Legal responses:
 where there is evidence that family violence has occurred, family dispute
resolution may be inappropriate, and the court will hear cases that raise family
violence issues quickly so that it can take appropriate action to protect
vulnerable family members
 the court may order that the child’s contact with the offending parent is
restricted, or that the contact takes place within a controlled environment
 the federal government has recognised child abuse and neglect as a major issue,
and is seeking to create a national framework for protecting children
 some of the non-legal responses include initiatives to provide support for
families and children in crisis, such as the Child Abuse Prevention Service (CAPS)
or the Child Protection and Family Crisis Service.
2 Consider the question of coordination between government and nongovernment bodies, and discuss how this could best be accomplished to provide
protection for children.
The Commonwealth Government has recognised child abuse and neglect as a major
issue and is seeking to create a national framework for protecting children. This
will require the creation of uniform child protection laws, and a focus on early
intervention and prevention strategies to protect children from abuse and reduce
the harmful effects that abuse has on children. Criticisms of child protection in
NSW have been made against Community Services, the police, the courts and
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community groups. Part of the framework is likely to be the coordination of
government and non-government organisations, to ensure adequate and timely
intervention in all cases can be achieved. Non-government organisations also assist
in education of the community, providing preventative services and well as
counselling services, and providing ongoing support for children, as well as
offendors.
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Chapter summary tasks
1 If a marriage breaks down, should the dependent spouse be entitled to
maintenance? Outline and explain the various factors that should be taken into
account when determining maintenance issues.
The law considers that a husband and wife are mutually responsible to one
another. The law tends to intervene only in cases where the marriage has broken
down, where one or both parties to the marriage have not fulfilled their
responsibilities, or when spousal rights have been infringed.
‘Maintenance’ is a financial payment made by one spouse to contribute to the
care and welfare of the other spouse and/or children of the marriage. Under
section 72 of the Family Law Act 1975 (Cth), if someone is unable to support
himself or herself, his or her spouse is obligated to provide maintenance. Some
examples of instances where this is required are:
 the person has the care and control of a child of the marriage who is under 18
years old
 the person is not able to be employed because of age or physical or mental
incapacity.
2 Discuss the issues surrounding blended families and explain why a stepparent is not financially responsible for the children of their spouse.
Step-parents do not have the same legal responsibilities for the care and control of
their stepchild as they would their natural child. For example, there is no
automatic right or duty to discipline the child, or to make decisions regarding the
child’s health or welfare.
Under the Family Law Act 1975 (Cth), a step-parent is not responsible for the
maintenance or support of a partner’s child. Rather, the financial obligations
towards a child remain with the child’s parents. However, they may be required to
pay support if a court is convinced that they do have a duty to maintain the child,
or if, for example, the family has existed for a long time or the natural parent has
died.
For a stepchild to claim successfully against the estate of a step-parent, they
must prove that they were financially dependent upon the step-parent. However,
step-parents may apply for adoption of stepchildren, and so adopt the
responsibilities and obligations of a natural parent toward the stepchild.
3 Briefly explain how family law has responded to changing social values, such
as increased incidence of divorce and the acceptance of de facto and same-sex
relationships.
Some of the issues students could mention include:
 expanding definition of family to include all types of modern families
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








change to a system of no fault divorce
changes to allocation of property in event of relationship breakdown
changes to legal recognition and entitlements regarding de facto couples
changes to the concept of parental responsibility, as well as the concepts of
equal time and equal responsibility
changes to methods of dispute resolution, including counselling, conciliation and
mediation
changes to legal recognition and entitlements regarding same-sex relationships
changes in birth technology and surrogacy laws
issues regarding Aboriginal and Torres Strait Islander customary marriages
issues regarding blended families.
4 Create a table listing in chronological order the legislative and common law
changes in family law and their effects.
Some examples of the major changes that students could mention include:
 the Marriage Act 1961 (Cth)
 the Family Law Act 1975 (Cth)
 the Property (Relationships) Act 1984 (NSW)
 United Nations Convention on the Rights of the Child (CROC), adopted in 1989
 Young Offenders Act 1997 (NSW)
 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
 Crimes (Domestic and Personal Violence) Act 2007 (NSW)
 Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cth)
 Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General
Law Reform) Act 2008 (Cth)
 Adoption Act 2000 (NSW)
 Surrogacy Act 2010 (NSW).
5 Outline the legal issues surrounding family violence, and evaluate the
effectiveness of current family law remedies in achieving just outcomes for all
family members.
Some of the issues students could discuss include:
 ‘family violence’ is defined in the Family Law Act as any action or threat of
violence by one family member against another, that causes fear or
apprehension about personal safety, including witnessing that action or threat
 2006 amendments to the Act attempted to ensure children were protected from
both direct harm and harm resulting from exposure to family violence
 the presumption of equal shared parental responsibility does not apply if there
is a risk of child abuse or family violence
 where there is evidence that family violence has occurred, family dispute
resolution may be inappropriate, and the court will hear cases that raise family
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





violence issues quickly so that it can take appropriate action to protect
vulnerable family members
the court may order that the child’s contact with the offending parent is
restricted, or that the contact takes place within a controlled environment
in NSW, victims of domestic violence can press criminal charges or can apply to
the Local Court for an Apprehended Domestic Violence Order (ADVO);
alternatively, it may be possible to apply to the Family Court for an injunction
for personal protection
the federal government has recognised child abuse and neglect as a major issue
and is seeking to create a national framework for protecting children
some of the non-legal responses include initiatives to provide support for
families and children in crisis, such as the Child Abuse Prevention Service (CAPS)
or the Child Protection and Family Crisis Service
the number of ‘at risk of harm’ reports made to Community Services has
increased steadily and continues to grow; in 2006, 241 003 reports were made
about concerns for a child or young person’s safety, and in the following year,
the number increased by 19 per cent to 286 022
the legal system has been accused of acting too slowly to protect child victims
of abuse and that existing mechanisms to protect children are inadequate. An
increasing number of persons under 18 have been placed on care and protection
orders.
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