Family Law

Options

Legal Studies HSC

ISSUES:
Same Sex Relationships
IN AUSTRALIA, same sex couples do not receive the same legal
protection as heterosexual couples, because their marriage status is
forced to remain single. A growing number of countries, including
Norway, Canada, Belgium and Sweden, recognize same-sex marriage,
but Australia is definitely not one of them. Recent census data
revealed that less than 0.5% of Australian couples are same-sex, yet
despite the issue only affecting a small minority it is one that receives
large media publicity and incites passionate debate and conflicting
opinions.
At state level, law reform has given increased recognition and
protection to same sex relationships in the eyes of the law. In 1984,
the De Facto Relationships Act 1984 (NSW) gave same-sex couples in
NSW the same legal standing as heterosexual de facto couples in areas
of inheritance, property division, and decision making in illness and
death. Amendments in 1996 extended the definition of close family
to include same sex partners, and thee changes provided important
protections to same sex couples who were victims of crime, and their
families. In 1999 and 2002, 20 amendments were made respectively
to promote broad-based equality and continue to recognize same sex
couples as having the same legal status as heterosexual de facto
couples. In 2008, amendments to the Same Sex Relationships Act
(NSW) gave lesbian mothers the right to have both names on their
childs birth certificate, and also contained provisions to afford
children born into same sex families the same rights (legally) as
children born to heterosexual parents. IN NSW in 2010, amendments
were implemented to legalize adoption for same sex couples wishing
to start a family. This brought NSW into line with the ACT and WA, and
become one of the most important milestones for granting same-sex
couples equal rights.
In terms of federal legislation, in 2004 the government amended the
common law definition of marriage to state that it was between a man
and a woman. This step was to prevent courts redefining marriage as
defined by Lord Penzance in the case of Hyde v. Hyde 1866, and sent
the message that Australian governments would not be legalizing
same sex marriage any time soon. Also in 2004, changes were made
to a number of laws, which resulted in same sex couples gaining
inheritance rights in relation to superannuation, and amended the
Anti-Terrorism Act to include same sex partners in the definition of
immediate family. In 208, the government amended 84
commonwealth Acts as a result of the Australian Law Reform
Commissions report Same Sex: Same Entitlements, to remove
entrenched discrimination in areas such as tax, super, Medicare,
veterans benefits, workers compensation and child support. At the
same time, the Family Law Act 1975 (Cth) was amended to extend the
1

Family Law

Options

Legal Studies HSC

definition of de facto under federal law to include same sex couples

since it doesn't distinguish between couples of same or opposite sex.
This was essential in providing equal rights in super and property
division at the commonwealth level.
A number of non-legal responses exist to same-sex couples. The
Australian Human Rights Commission investigates areas of
discrimination, and as previously stated it was a result of a report
funded by them that 84 Commonwealth Acts were amended in 2008.
A number of lobby groups exist, both supporting and opposing gay
marriage, The Australian Marriage Equality group campaigns and
advocates for the legalization of same sex marriage. Similarly, the Gay
& Lesbian Rights Lobby advocates, educates and consults with same
sex couples to promote their rights. On the other hand, the Australian
Christian Lobby opposes equality for same sex relationships, and can
legally withhold services on the basis of sex, race, etc. Their
opposition is based on traditional religious concepts of marriage and
family. However, polls show that 53% of Australian Christians support
same sex marriage suggesting that the groups views may not
necessarily be reflective of all Christians values. Finally, the media has
a large influence over public opinion, and regularly reports issues
surrounding same sex relationships and the law. The media is able to
inform the community of changing laws, but it can also promote
particular political ideologies in attempts to sway public sentiment.
This can be clearly seen in the medias coverage a few months back of
Penny Wongs announcement that her partner would be giving birth to
the couples first child. Their high political profile sparked a fierce
debate over gay marriage, with independent MP Bob Katter announcing
at a rally in August that gay marriage deserves to be laughed at and
ridiculed. Both Abbott and Gillard made public comments
condemning Katters views, despite not necessarily supporting the
cause themselves. Recent polls conducted by the Sydney Morning
Herald indicate that 65% of Australians support gay marriage;
suggesting that Katters comments may be out of touch with the
Australian electorate.
The legal system has, overall, been slow to respond to addressing
same sex relationships, and the changes that have occurred have been
incremental and haphazard. For laws to change courts must be willing
to act and politicians must support legislative reform; this can only
occur when societys views and values shift also. However, given high
community support for gay marriage, it appears the law may be
limping behind in this area. The anti discrimination board has made a
number of submissions to both state and federal governments
concerning changes that are still necessary to ensure rights for all
Australians. Increasing exposure to high-profile same sex couples
such as Penny Wong will help to normalize the concept of gay
marriage, however comments by Katter and recent articles by Miranda
Devine in the Sydney Morning Herald indicate that a number of facets

Micaela Bassford

Family Law

Options

Legal Studies HSC

of society remain strongly opposed to the concept and it is unlikely to

change anytime soon.
Although less than half a percent of Australian couples are same sex,
their right to marry is an issue that incites conflict and anger among
many groups in society. Given that heterosexual divorce rates are
approaching fifty percent, many have argued that legalizing same sex
marriage, and allowing couples that genuinely want to legalize their
love to do so, will strengthen what many consider to be a weakening
institution. Until such law reform occurs, the needs of a small but
passionate minority will continue to fail to be met.

Family Law

Options

Legal Studies HSC

ISSUES:
Surrogacy & Birth Technologies
THE RAPID increase in technological advancements has, in recent years,
challenged traditional legal concepts of family and parents. With
birth technologies (such as IVF and insemination) has come the
possibility of surrogacy, where genetic material from another couple
can be implanted into the uterus of another woman. Despite some
concrete progress in recent years, further reform is desperately
needed so that the law may keep up with such changing notions of
family.
Birth technologies are largely addressed in the Status of Children Act
1996, which specifies the rights of children born via artificial birth
technologies. The act stipulates that children born through IVF or
insemination are entitled to the same legal protections as children
conceived naturally. It also addresses the issue of genetic donation,
and states that a man who donates sperm for either process will not
be recognized on the birth certificate and has no claim on the child.
However, such birth technologies have enabled surrogacy to occur,
which is the process of a commissioning couple using their genetic
material (or perhaps donated genetic material) to implant into the
uterus of another woman who will carry the baby to term for them.
This process was recently brought to light by Nicole Kidmans use of a
surrogate mother, termed by the media as a gestational carrier.
Legislation in this area is inconsistent and confusing, leaving many
Australian family members left in the dark about their rights. The
Status of Children Act 1996 (NSW)Status of Children Act 1996 (NSW),
the Family Law Act 1975 (Cth) and the Marriage Act 1961 (Cth) all set
out that in the case of surrogacy, the birth mother is the natural
mother. What this means, is that the woman who physically gives birth
to the child is considered the parent regardless of genetic material.
Furthermore, the Children (Care & Protection) Act 1987 criminalizes
placing a child with someone other than their parents for more than
28 days, so until recent law reform, surrogates and commissioning
parents were forced to undergo adoption proceedings under the
Adoption Act to transfer parentage. The result was that parents
(unless they underwent adoption) faced challenges with tasks as
simple as enrolling their child for school or applying for a passport.
The Family Law Act 1975 contains very limited provisions for
surrogacy, and certainly not enough to del with all the ethical and
legal issues raised by the process. For example, in 2003, the Family
Court off Australia heard the case of R v Michael, where a
commissioning couple was attempting to gain parentage of their
surrogates child. The case had to be heard in the Federal Family Court
under the Family Law Act, because NSW laws were at the time so

Micaela Bassford

Family Law

Options

Legal Studies HSC

inadequate. Although the parties were not in dispute, the Family Court
held that a parenting order could not be granted to the commissioning
couple because under the Family Law Act, the surrogate mother had
exclusive rights to the baby and could not just give it away. The
court instructed the couples to return to the Supreme Court of NSW
and apply for adoption under the Adoption Act 2000; a long and costly
process. This case clearly shows the way in which the law has
struggled to keep up with changing family needs.
In attempts to address these issues, in 2010 the NSW government
passed the Surrogacy Act 2010 (NSW) which provided important
reform for surrogate arrangements. The act legalized altruistic
surrogacy, where only medical costs are paid, and introduced
streamlines procedures for applying for parenting rights once
surrogate mothers give birth. The commissioning mother can now
apply for an order between one and six months after birth. However,
the act criminalizes commercial surrogacy, both here and overseas.
This occurs when women are paid a fee to carry anothers baby. If
caught, NSW residents can face fines of up to $10 000 and
imprisonment of up to two years. The criminalization of this process
means that surrogacy is restricted to couples that have friends or
family willing to carry the baby pro-bono and fails to acknowledge the
reality of such an arrangement for a growing number of Australians.
The ABCs Four Corners program demonstrated the way that this law
discriminates against those with no one willing to be an altruistic
surrogate not necessarily responding to the needs of Australian
families.
A number of groups, particularly the Australian Christian Lobby,
oppose surrogacy due to the potential it offers for same-sex couples
to give birth. They want surrogacy restricted to only heterosexual
infertile couples, however there re no indications the government will
head down this path.
The NSW law in 2010 is an important reform in clarifying legislation in
the area of surrogacy and birth technologies, however it is evident that
more reform is needed. The rapid rate of technological change means
the law struggles to adequately respond to the needs of family
members in this area, since their needs are rapidly changing also.
Reform is necessary to ensure the law is able to clearly, concisely and
effectively meet the needs of the dynamic notion of family in the
twenty first century, and bring Australia into line with international
standards.

Family Law

Options

Legal Studies HSC

ISSUES:
The Changing Nature of Parental Responsibility
Recent years have seen a shift in the focus of courts when considering
family matters involving children, from parental rights to parental
responsibilities. Parental responsibility refers to the duties, powers,
responsibilities and authorities that parents have in relation to a child.
In the eyes of the law, shared parental responsibility refers to shared
responsibility of long-term care of a child (decisions about education,
religion, naming, health and living arrangements) and is not to be
confused with shared parental care (fifty fifty access time).
Some of the most significant changes to family law came in 2006 with
the Family Law (Shared Parental Responsibility) Amendment Act 2006.
This law has significant implications for separated families, as it shifts
the focus of separation to the child, and requires parents to share
responsibility equally. However, this law has been a backward step on
existing laws, raising serious questions from legal professionals.
The act does not distinguish between shared responsibility and shared
parental care, resulting in many parents now wrongly believing they
are entitled to fifty fifty access time with their child. The amendment
also now requires the court to always consider equal shared time
between parents, as children have a right to a meaningful relationship
with both parents. This section has been widely criticized for
potentially exposing children to abusive parents, when shared time is
not necessarily in the best interests of the child. Furthermore, the act
includes provisions for orders of costs against any party who is found
to have made false allegations of violence. Many feel that this
provision suggests that allegations of domestic violence will be
regarded with suspicion, and fear that it has discouraged parties
(namely, mothers) from reporting violence. In this case, courts will be
unaware of potentially abusive home environments, and children may
be exposed to physical and/or emotional abuse.
A government review board was established to review the reform in
2009, and expressed in their findings that amendment had led to
confusion among judges and legal professionals alike, and has
resulted in too much weight being placed on the childs right to have
significant time with both parents rather than their right to be
protected from harm.
The shortcomings of the amendment are painfully evident in the high
court case of Rosa v Rosa, where the High Court overruled the Family
Courts decision to force a mother to reside in a caravan in Mt Isa
living off welfare payments, so that a fifty fifty time-share
arrangement could take place. The court deemed such a ruling was
unreasonable, and not in the long term, or short-term, interests of the

Micaela Bassford

Family Law

Options

Legal Studies HSC

mother or the child. This highlights the problematic nature of the

2006 reforms.
At state level, the Crimes Amendment (Child Protection Physical
Mistreatment) Act 2002 (NSW) restricts the ability of parents to use
corporal punishment on their children. It specifically prohibits the use
of physical force on the head/neck, and specifies that punishment may
cause only fleeting pain. If this law is broken, parents may be liable
to be charged with a criminal charge of assault, or a civil charge of
negligence, depending on the situation and severity.
A number of groups and organizations exist that advocate the rights
of children, and promote the enforcement of parental responsibilities.
Relationships Australia is one such group, and they provide
information, education and counseling to families Australia wide. They
also help families negotiate parenting agreements out of court. The
National Council of Women of Australia aims to eradicate
discrimination against women, and provide a link for networking and
coordination between state councils of the same objective. They
develop national policies on parental responsibilities that reflect the
needs and wants of women domestically, and provide a voice of
communication at both a national and international level. To cater for
the men, Dadslink provides assistance for fathers in the form of
information, support and activities that enhance the relationship
between fathers and their children. Finally, the Shared Parenting
Council of Australia was established in 2002 as a representative body
for all organizations with a common purpose. As a group, they
support every childs right to have an equal relationship with both
mother and father.

Family Law

Options

Legal Studies HSC

ISSUES:
Care & Protection of Children
The UN Convention on the Rights of the Child (CROC) specifies that
children need special care and protection due to their vulnerability.
Nationally, Australia is a party to The Protection Convention, which
aims to eliminate delays in communication between relevant
authorities. It places emphasis on protecting both the persona and
property of children, and reflects an attempt to gain greater
international consistency with parenting orders.
At a state level, the Children & Young Persons (Care and Protection)
Act 1998 (NSW) focuses on safeguarding the health and wellbeing of
children born in NSW. It includes provisions for mandatory reporting to
DOCs when a risk of harm is suspected in a child. It also empowers the
NSW Childrens court to make an order for a child to be cared for or
controlled by someone else. This allows children to be placed in state
care in severe circumstances. It also puts DOCs and JIRTS (joint
community response teams, including police and health) into practice.
At a Commonwealth level, the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth) covers the care and protection of
children, placing an emphasis on the best interests of the child,
including their right to have a relationship with both parents and their
right to be protected from harm. It places heavy importance on a child
spending equal time with parents in cases of separation, and
subsequently substantial and significant time share must be
considered by the court in all cases. A presumption of equal care time
does not apply in cases of violence, in an effort to protect children,
however a 2009 review board established to review the reform was
largely critical of the changes. Although the law did have aims of
protecting children, it was found that they placed too much emphasis
on a child being with both parents, and claims against false violence
allegations had led to a decrease number of accusations, suggesting
they were going unreported and children were potentially placed in
harm.
The family court is arguably the most important source of legal
protection for children. It can order state or territory agencies provide
information about allegations of violence, and can make legally
binding disputes on issues involving children.
There are a variety of non-government organizations that promote the
care and protection of children. They often provide services or
education, such as childcare, counseling, or emergency housing for
women and children. Examples include the Child Abuse Prevention
Service (CAPS), and the Benevolent Society.A number of religious
institutions have been criticized for their lack of action in dealing with
child abuse against members. Recently, the Anglican Church publicly

Micaela Bassford

Family Law

Options

Legal Studies HSC

apologized for abuses against children, and all major religious

institutions that work with children now have established counseling
services for victims and compensation funds.
The responsiveness of the law in protecting children has at times been
criticized for failing. This is particularly true in NSW, where DOCs has
often appeared in the media for failing children in their duty to protect
them from neglect and harm. The case of Ebony is one example where
DOCs came under serious fire, and was blamed largely on
underfunding and staff cuts within DOCs. There have also been large
criticisms of the legal system in general, with some considering it too
slow to respond and mechanisms inadequate to deal with the special
needs of young people. Furthermore, recent emphasis on support to
perpetrators has been less successful than hoped in encouraging
behaivoural change, suggesting this is not necessarily the solution.
In order to address this, the federal government is looking to
implement reform in the form of a national framework for protecting
children. The framework includes uniform child protection laws, and a
focus on early intervention and prevention strategies to protect
children from abuse before it occurs, and reduce the effetcts if it does.

Family Law

Options

Legal Studies HSC

CORE:
Alternative Family Arrangements
The notion of family is fluid and changes as societys views and
beliefs change also. As such, law that legislates in this area must
constantly change in an attempt to keep up to date with the needs and
wants of its contemporary context. The ABS defines a family as two or
more persons, one of whom must be at least fifteen, related by
marriage (registered or de facto), blood, adoption or fostering, and
who usually reside in the same house. This broad definition reflects
todays wide range of family arrangements, including nuclear,
extended, blended, sole parent and de facto, and is indicative of the
continual reform that family law has undergone, to varying degrees of
effectiveness. This is evident in the alternate arrangements of
Aboriginal and Torres Strait Islander families, sole parent families, and
same sex families.
Due to the changing nature of family in recent decades, the law has
had to alter significantly the way it views and legislates such matters.
Traditionally, the notion of family was restricted to the definition of
marriage, defined in 1866 in the case of Hyde v Hyde & Woodmansee.
The family was centers round marriage, which was the union of a
man and a woman, to the exclusion of all others, voluntarily entered
into for life. However, changes to family law mean that the
contemporary legal system does not entertain such a narrow view of
family.
Aboriginal and Torres Strait Islander families are one alternative family
arrangement, which changes to family law have attempted to protect.
Traditional/customary ABTSI marriages are not recognized under
Australian laws, as their marriages generally do not meet the criteria
set out in the Family Law Act 1975 (Cth). This means that they are
denied the legal protection that marriage offers families. However, in
1998, an Australian Law Reform Commission Report recommended
that the federal government recognize traditional marriages. Although
the government rejected the commissions findings, they changed the
law to offer limited recognition for judicial proceedings involving
children and property, in order to give ABTSI families equal access to
the legal system. This was a clear improvement on the previous lack of
any recognition, but is still not a perfect situation since ABTSI families
do not share the same rights, responsibilities and protections afforded
to nuclear married families.
Sole parent families are an important and growing alternative family
arrangement in Australia. One in five Australian children live with only
one parent, and 87% of sole parent families are headed by women.
This group suffers significant disadvantage when protecting their
rights, since single mothers often lack the resources to pursue the
protection of their rights in court a process which is costly in terms

Micaela Bassford

10

Family Law

Options

Legal Studies HSC

of both time and money. The law has attempted to deal with this issue
through law reform, and introduced the Child Support (Registration
and Collection) Act 1988. This act makes it compulsory for parents
who do not live with their child to make financial contributions to their
upbringing, and automatically deducts payments from parents
accounts. This legislation has been an improvement, since legislation
in this area was previously non-existent. However, its effectiveness is
limited by the fact that many parents claim the minimum required to
be paid is not enough to cover basic expenses, disadvantaging
children in this situation.
Same sex families are an alternative family structure that has gained
significantly from law changes in recent years. Since the definition of
marriage provided earlier specifically states it must be between man
and woman, same sex couples initially had no recognition under
Australian law. It was not until 1999 when amendments were made to
the Property (Relationships) Act (NSW) that same sex couples achieved
some degree of status legally. The 1999 amendments removed the
mention of gender in defining de facto couples, and as such, same sex
couples now enjoy the same legal status as de facto couples under
both Federal and State laws. Given that this affords protection in NSW
to same sex couples for issues involving property division, inheritance
and decision making in illness and death, such legislative change is
certainly an improvement on previous law.
At a federal level, same sex couples do not have the option of
marrying, since no federal government has supported amending the
definition of marriage as it stands in the Family Law Act 1975 (Cth).
However in 2009, the Greens introduced the Marriage (Equality)
Amendment Bill, which would have legalized gay marriage. Although it
failed to pass, the fact that it was debated on the floor of parliament is
indicative of the growing support for gay marriage. Recent polls show
63% of Australian voters support gay marriage, so this is certainly area
of family law that we can expect to undergo reform in the future.
In 2007, following an Australian Human Rights Commission Report
Same Sex: Same Entitlements, 84 Commonwealth Acts were amended
by he government to remove discrimination and differential treatment
of same sex couples in areas such as workers compensation,
superannuation and Medicare. These reforms are a positive step in
providing rights and recognition to same sex couples.

11

Family Law

Options

Legal Studies HSC

CORE:
Domestic Violence
Domestic violence refers to personal violence committed against
someone with whom the offender has or had a domestic relationship
with (married or otherwise). The causes of domestic violence are
varied, however can often be attributed to psychological, social or
financial issues. Although often thought of as only physical, domestic
violence can also be verbal, emotional, psychological, sexual or the
threat to harm.
The number of victims of domestic violence has been steadily rising
over time, however this does not necessarily reflect an increase in the
occurrence of domestic violence, rather an increase in reporting of the
crime. Although the number of female perpetrators of domestic
violence has risen from 800 charges in 99 to 2000 in 07, it is still
primarily men who are responsible for domestic violence. 82% of
females who are assaulted know the offender, and 1/3rd of assaults
are by a partner. Half of women assaulted suffer from repeated
attacks, making domestic violence a damaging and problematic crime
for victims and society at large.
The effectiveness of criminal charges for domestic violence largely
depends on reporting.
Women often do not report making it difficult for police to
act/allocation of resources
42% of homicides are from domestic violence however real
figures are even higher resource allocation for police
(government has established a homicide review panel)
In order to encourage reporting of domestic violence, the government
has expanded a variety of programs designed to decrease stigma
surrounding the crime and encourage reporting (e.g. Staying Home
Leaving Violence and Womens Domestic Violence Court Assistance
Program)
P Raised awareness & the understanding that it is not a private
matter
P Legislative reforms reflect the recognition of domestic violence
as a community problem
Remains one of least reported crimes
Stigma still exists
Apprehended Domestic Violence Orders (ADVOs) are one of the most
common remedies to deal with domestic violence.

Micaela Bassford

12

Family Law

Options

Legal Studies HSC

P Quick, inexpensive & accessible

P Complemented & supported by full weight of criminal law if they
are breached
Only law-abiding individuals will comply
Do little to deter persistent offenders
Effectiveness depends on policing
Allegations made that they are too easy to obtain & women
falsely claim when contesting parenting orders, HOWEVER there
is little evidence to support
Sanctions for breaking the bond are not serious enough most
common is bond, 30%
Domestic violence is a form of assault, and as such, prison sentences
may be imposed in certain cases.
P Offender who injure victims, breach an AVO or have a prior
conviction for domestic violence stand a good chance of going
to prison.
Usually only locked up for a year
Of those who are not sent to prison, they do not receive
supervision, counseling or support
The criminal process a number of features that attempt to protect
victims of domestic violence and increase the charge rate.
P Standard of evidence in Family court is less than in other courts
(make easier)
P Originally only applied to women in heterosexual marriages but
now extends to de facto relationships, including homosexual
relationships
P No automatic presumption of bail for offenders, following
several killings by men released on bail
Despite such progress, recent amendments to the family law act in
1995 & 2006 have been criticized for putting children at risk of
domestic violence.
Concerns that too many children end up staying with their
abusive father
Section that awards costs against a party that raises untrue
allegations, which has deterred people from reporting

13

Family Law

Options

Legal Studies HSC

In evaluating the effectiveness of the legal system in responding to

domestic violence it is necessary to evaluate the findings of the 2010
No Way to Live research report. Despite progress in recent years, the
report largely found the court system to be failing victims of domestic
violence.
Found that womens experiences of the family law system were
often negative
Encountered a climate of disbelief
Complex system lacking coordination between state & fed
Inadequate responses by state agencies meant childrens safety
was concern of the Family Courts making it private law, where
safety depends on mothers resources
Fragmented and uncoordinated system, with delays & barriers to
access
Poor understanding among key professionals of nature of DV

Micaela Bassford

14