Legal_Stuies_-_Family_Essay

Evaluate the effectiveness of the law in dealing with family members. There are a number of legal issues faced by family members including divorce, IVF birth technology, alternative family arrangements, and domestic violence. However, the effectiveness of the law in dealing with these issues ranges significantly as the law does not treat all family members equally. The effectiveness of family law can be measured using criteria including protection and recognition, accessibility, resource efficiency, equality, and enforceability. One legal issue faced by family members is the increasing prevalence of divorce. In previous years, dissolution of marriage was inaccessible and not recognised as it is today, since the common law attempted to ‘protect the institution of marriage’. For example, the Divorce and Matrimonial Causes Act 1857 (UK) allowed a man or woman to divorce only if their partner had committed adultery and if proven, the woman would lose access to the children. Therefore there were very few cases. Decades later, the Matrimonial Causes Act 1959 (Cth) allowed for 14 grounds for divorce, 13 based on the concept of fault. This Act was an improvement for the equality of women in the relationship, however did not cover all areas resulting in relationship breakdowns. Hence, the Family Law Act 1975 (Cth) introduced “no fault” divorce which states that for a divorce to be valid there must be an “irretrievable breakdown of marriage.” It also involves the couple living “separately and apart” for a period of twelve months. As seen in the Whiteoak v Whiteoak 1980 case, the law proves to be effective in protecting and recognising the rights of women who were allowed by the law to divorce their husbands based on a no-fault divorce. It is also resource efficient as the no fault clause results in cheaper court costs and shorter time as a result of other dispute mechanisms enforced such as counselling, mediation and arbitration. Additionally the law anticipates to be effective in protecting and recognising the rights of the child with the introduction of the Family Law Reform Act 1995 (Cth) which places a greater emphasis on parental responsibility for the care and control of children. However, as seen in the SMH article “Divorcing parents too easily ignore children’s feelings”, (5/28/05), suggests that the law does not protect and consider the ‘best interests of the child’ but simply the best interest of the spouses. In fact, a proven study by the Children in Focus Research Program stated that 80% of divorced parents learnt new things, or were shocked when they were told messages of their child’s thoughts during the breakup period. Therefore the law is ineffective towards protecting children to a degree that it cannot cater for the emotional distress of the child during this vulnerable stage of their life. Furthermore, it suggests from a social and religious perspective that divorce is too easily accessible and undermines the institution of marriage. Unfortunately, many couples in society cannot have a baby. Due to the strict adoption laws enforced by the Adoption Act 2000 (NSW) and the long waiting lists, many couples have looked to other alternatives to have a baby such as IVF birth technology treatments. A common overseas practice is surrogacy. Surrogacy includes an agreement between a commissioning couple and a woman, where the woman undertakes to bear a child for the commissioning couple and then give the baby to the couple when it is born. However, this raises the issue of who is the child’s mother' In Australia under the Births, Deaths, and Marriages Registration Act 1995 (NSW) the registration of a surrogacy birth which transfers the child from the birth mother to adopting mother is illegal. Additionally, the Status of Children Act states that the surrogate mother can claim to be the legal mother. This is seen in the Re: Evelyn case, whereby the biological mother that had the baby for a couple was later reinstated with the baby as she gained depression and a change in heart. Therefore, the law is ineffective in protecting and recognising the rights of the commissioning parents. Additionally there is an imbalance of equality between the surrogate mother and commissioning parents as both can claim to have a connection to the child. On the other hand, in relation to sperm donors, the Artificial Conception Act 1989 (NSW), states that the legal parents of the child are the commissioning parents. This is seen in the B v J (1996) case whereby the court held that a sperm donor need not pay child support even if listed on the birth certificate. Therefore the law is effective in protecting and recognising the rights of the donor as they are not held responsible for the child’s welfare and can remain anonymous. Alternatively, this law protects the commissioning parents as the donor cannot claim custody of the child. However, this limits the rights of the child as they do not have access to the identity of the sperm donor. Furthermore, family members living in alternative family arrangements experience legal issues in family law. In particular, family law presents much discrimination to same sex couples in not allowing them to be recognised as married couples. As marriage is defined as ‘the voluntary union of life of one man and one woman’ in the Hyde and Woodmansee (1866) case and further documented in the Marriage Act 1961 (Cth), the law is ineffective in recognising and showing equality to same sex couples by excluding them from the institution of marriage. However, under the Property (Relationships) Act 1984 (NSW), the law is effective in protecting and recognising same sex couples as couples living in a de facto relationship. This Act incorporated amendments to the De Facto Relationships Act which changed the definition of a ‘de facto relationship’ from only including heterosexual couples to also including same sex couples. Hence, the law is effective as it presents equality to same sex couples as it gives them the same rights as heterosexual couples. This is evident in the Hope and Brown v NIB (1994) case whereby the common law allowed for a same sex couple to be recognised as a de facto couple to receive Health Insurance. Additionally, the Property (Relationships) Amendment Act 1999 (NSW) is further effective in protecting and recognising the rights of same sex couples when dealing with property and/or economic division during relationship breakdowns. This is seen in the West v Mead 2003 case whereby a lesbian couple separated after a 15-year relationship into which two children were born, one to each of the women. Upon separation, West claimed against Mead for an interest in a property and was awarded half of the increase in value of the property since the relationship started. Therefore, through the introduction of the aforementioned legislation, the law is effective in providing equality, protection and recognition to same sex couples. Another legal issue faced by family members is domestic violence. The Crimes Act 1900 defines domestic violence to be a condition under which a person is repeatedly exposed to physical, emotional and psychological abuse. The most common victims of domestic violence include women and children. The law has responded to domestic violence by introducing apprehended domestic violence order’s (ADVO’s) under the Crimes (Apprehended Violence) Amendment Act 1999 (NSW), issuing injunctions via the Family Law Act, and by pressing criminal assault charges. Here the law is effective in protecting and recognising the rights of victims as it orders offenders to abstain from acting a certain way or keeping a distance from the family home via an ADVO or injunction. Its enforceability is evident in the Marriage of O’Dean, whereby the court granted an injunction from stopping the husband from coming into the family home. Furthermore, these remedies are somewhat accessible for victims of domestic violence as there have been more than 200 000 ADVO applications granted since 1999. On the other hand, the law is ineffective in protecting victims of domestic violence as it does not protect the victim retrospectively. An offence has to be carried out first in order to apply for an ADVO or an injunction. As well as this, the law does not guarantee the safety of victims of domestic violence even when an ADVO is issued raising issues of enforceability. For example, in the Jean Lennon (1996) case, Jean placed an ADVO on her former husband but was then shot outside Parramatta court by her former husband. Additionally, most cases do not get reported as many victims may fear the consequences or they may put their children’s welfare ahead of their own. Therefore, the law is effective in most cases of domestic violence, however there are still significant improvements to be made to the law in protecting victims’ rights. In conclusion, there will never be a perfect world where there will be no issues and disputes in relation to Family Law in protecting family members. However, with society’s moral and ethical standards continually changing, the law will anticipate to meet the needs and expectations of family members through remedies and reform.