So anyway, here is my essay.
I had the cases/legislation/topics underlined, but it got lost in the Word-to-post transition, and the board got rid of my indentations, so i just put a line between paragraphs.
Any comments are welcome, eg: do i have enough content/legislation/case law? Enough issues discussed?
uhhh, enjoy!
Family Law Essay Legal Issues and Remedies
Outline the legal issues facing family members, and evaluate the extent to which the remedies available to family members achieve justice.
Under the definition of family set by the Family Law Act 1975 (Cth), the primary motive of intervention by law in matters of family can be seen as the protection of: not only children, but all members of the family unit, protection of their rights, enforcement of their responsibilities and provision of justice in legal issues. Achieving Justice involves implementing valid societal principles of morality, ethics and equity into all legal issues of family law. It is sought in issues such as Aboriginal customary marriages, same sex relationships, parents and children, birth technology, and problems in family relationships such as domestic violence. Societys values and concept of justice is constantly changing, and if family law is to remain effective and just, it must constantly provide valid and relevant remedy to help achieve justice for all family members.
Alternative family arrangements is a category under which several legal issues fall. One such area, in which Family Law is ineffective in achieving justice is Aboriginal customary law marriages. The Marriage act 1961 (Cth) sets out the requirements for a valid marriage, one such requirement being that marriages be formally registered, and as Aboriginal customary law marriages are not, they do not fulfill the requirements, therefore they do not get the protection under the law that other marriages do, and instead be seen as a De Facto couple (with less rights) under law set by such legislation as the De Facto Relationships Act 1984 (NSW) and the Property (Relationships) Legislation Amendment Act 1999 (NSW). Family Law is yet to remedy this injustice. In this issue, Family Law has not provided remedy to an adequate standard of justice for Aboriginal marriages.
Another issue under Alternative Family Arrangements is same sex relationships. The De Facto Relationships Act 1984 (NSW) remedied the previous state of non-recognition of same-sex relationships, by recognising relationships other than marriage, and the move toward further remedying the situation with more rights for same sex relationships grew stronger with the Property (Relationships) Legislation amendment Act 1999 (NSW) which amended the De Facto act, providing more protection for same sex relationships, and the Adoption of Children Act 1965 (NSW) which gave same sex couples the right to adopt. In the case of R v McEwen 1996, the court recognised that battered woman syndrome could apply to people in same-sex relationships. However, while the Anti-Discrimination Act of 1977 (NSW) provides a remedy against discrimination, it still occurs indirectly through same-sex relationships not being fully protected as heterosexual relationships are; thereby, an inequality is still present. Nonetheless, Family Law has displayed significant steps of remedy towards full recognition of same sex relationships, so it can be said that Family Law has not yet provided justice to same-sex couples to the full extent, its effort has been significant and effective overall.
Parents and children is another important category in which the law seeks justice for all parties concerned. Family Law faces the issue of the vulnerability of children there is a domestic and international responsibility to provide protection, primarily from adults. The ratification of the UN Convention on the Rights of the Child (CROC) by Australia in 1990 remedied the need for special laws protecting childrens rights, and any breaches of its principles can be taken to the Human Rights and Equal Opportunity Commission. Family law went further toward remedying the issue of protecting the vulnerability of children with the Family Law Reform Act 1995 (Cth), which incorporated CROC principles into domestic legislation. The Family Law Act 1975 (Cth) imposes a primary duty on parents to maintain children until they are 18 years of age, and the Children and Young Persons (Care and Protection) Act 1998 (NSW) states the safety, welfare and well-being of a child or young person be of paramount consideration. It is apparent that the law has been effective in providing remedy for the issue of protection of children, through statute, ratification of international convention, and common law.
Birth technology is an increasingly prevalent issue under parents and children, for which Family Law has provided largely effective remedy toward achieving justice for family members. The Artificial Conception Act 1984 (NSW) gave children conceived by birth technology the same status as children born normally, an important remedy for the protection of childrens rights. The Status of Children Act 1996 (NSW) states that sperm donors cannot be presumed for paternity; this was held up in the Family Court case of B v J 1996, which held that sperm donors need not pay child support. This was an important remedy, which was effective in protecting the rights of sperm donors. The Status of Children Act 1996 (NSW) also allows children to have the identity of their father determined by blood tests, again a remedy which contributed towards the rights of children conceived through birth technology. Technology advances quickly and it is often very difficult for the law to keep pace, but it is evident in the issue of birth technology that Family Law, through common and statute law remedies, is largely achieving justice for family members.
Problems in family relationships is yet another focus area for which Family Law aims to provide justice for family members through legal remedy. The issue of Domestic violence is referred to in the Crimes Act 1900 (NSW) as violence within a defined domestic relationship, and one remedy offered by law for protection from violence between spouses is an Apprehended Domestic Violence Order (ADVO) which is made under the Crimes Act 1900 (NSW), and attempts to prevent threatened violence. This remedy is generally effective, but the fact remains that an ADVO relies on the alleged offender taking it seriously, and desisting of his or her own will. A Family Court Injunction is another remedy offered by the law, with the type of relief specified under the Family Law Act 1975 (NSW). These are generally seen as less effective than ADVOs, with ADVOs being used in the majority of situations. The Property (Relationships) Act 1999 (NSW) also provides domestic violence victims in de-facto relationships to seek protection via injunction under the Act. These remedys introduction provided much needed relief for the issue of domestic violence; however their limitations prevent them from being effective to the full extent possible.
Throughout the range of different legal issues presented, there is a range of different levels of effectiveness. From the largely effective protection of childrens rights in Family law, achieved through such methods as ratification of international convention and implementation of statute, to issues such as recognition of Aboriginal customary law marriages which are lacking in their effectiveness in providing remedy for the family member to achieve justice, it can be concluded that few, if any issues are free from constraint in the provision of justice, yet family law, given such constraints is generally effective in the remedy provided to achieve justice. Still, at this stage for most legal issues, family law does not provide justice to the full extent of the definition, and to the full extent of its capacity. Family law must strive for remedy that offers justice to the fullest extent, to use the tools of statute, common law, and international conventions and treaties effectively, so that each family member can be treated justly, and equally under the law.
