Family Law Nature of Family Law 2

Aboriginal and Torres Strait Islander peoples’ customary law marriages◦ 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

Alternative Family Relationships

Single-parent families◦ 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

Blended Families◦ 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 overtime

De Facto Relationships◦ 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

Same-Sex Relationships 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

http://www.youtube.com/watch?v=z1Vbz4Tg3PM&feature=related

http://www.youtube.com/watch?v=HSWlyhfvWUQ&feature=related

Polygamous Marriage◦ Illegal in Australia◦ Overseas polygamous marriage may be deemed

legal in the best interests of the child

Theme: changes to family law as a response to changing values in the community◦ Views on different family arrangements◦ Society views towards same-sex marriages◦ Increase in women’s financial dependency and

supporting children◦ Children are not owned but cared and protected

by both parents

Theme and Challenge Time

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

Page 321 in txtbook for complete legislation concerning children in NSW

Legal Rights and Obligations of Parents and Children

Derived from International Law◦ Protection of children under CROC◦ CROC is used by courts to develop common law

regarding protection of children◦ Many principles of CROC are embedded into 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

Parental Care

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◦ Parents share responsibility for the child’s care

and welfare

Parental Care and the Family Law Act 1975 (Cth)

Legislation Changes

Family Law Act 1975 (Cth) Custody of children – ownership/guardianship

Family Law Reform Act 1995 (Cth) Shared Responsibility of children – no agreement, parenting orders given

Family Law Amendment (Shared parenting responsibility) Act 2006 (Cth)

Substantial time by both parents to care and protected the child

Development of the Family Law Act 1975 (cth) and parental care

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

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 Department of Community Services

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 cause

Parental Neglect – State Law

Education ◦ Protected under Education Act 1900 (NSW) and CROC◦ Failure to provide the child access to an education is

a criminal offence

Discipline ◦ Parents have the right to discipline their child by

using physical force but it must be reasonable◦ What is reasonable may vary from culture to culture◦ Assault includes striking the head or neck, shaking

and striking with a closed fist

Discussion Point:Can we define reasonable physical discipline?

Video:http://www.youtube.com/watch?v=

gHzTUYAOkPM

Medical Treatment ◦ Under 14yrs consent of a parent is required◦ 14-16 child’s or parent’s consent required

If the parents refuse treatment a court can authorise the treatment

Autonomy of Children◦ Children are considered as not having developed

cognitive abilities to make informed decisions◦ Development of law regarding children and young

persons has increased some freedoms and improved rights

Ex-nuptial Children (outside marriage)◦ In the past had no legal status◦ Status of Children Act 1996 (NSW)

Process of transferring parent rights and responsibilities from biological parents to adoptive parents

State Responsibility – Adoption Act 2000 (NSW)◦ 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

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?

New birth certificate issued Adoptive parents now have legal

responsibility Child has the right to inherit the estate of

their adoptive parents

Video:http://www.youtube.com/watch?v=

8eKciR4gcxo

Adoption Approved

Child’s culture need to be preserved In NSW, prospective parents apply through

DOCS Child must meet migration standards

otherwise they may be refused

Adoption Overseas

The Adoption Act 2000 (NSW) allows relinquishing parents and adopted children the right to request information from DOCS

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 about biological parents