Although family law focuses on individual relationships and the achievement of just outcomes for the individual, the legal system also operates to provide a just outcome for society as a whole. In order to secure a just outcome for society, the legal system needs to operate as efficiently as possible; the law needs to remain contemporary, the law must be enforceable and the law must endeavor to balance the rights and values of individuals against those of society in order to provide justice for all.
Early law in the 19th century viewed marriage as absolutely binding because of the sacredness of marriage under God. However, as society changed its views on marriage, the Matrimonial Causes Act 1959 (Cth) was passed to allow divorce on the concept of fault, including adultery. However people were forced to blame the other party in court when fault lay with neither party.
This problem and public acceptance of the concept of divorce assisted in the establishment of the Family Law Act 1975 (Cth), which introduced the ‘no fault’ divorce and the only ground needed for divorce; an “irretrievable breakdown” of the marriage. This can be clearly seen in the cases of Whiteoak vs. Whiteoak 1980 and Pavey vs. Pavey 1976. Women also received greater equality as non financial contributions to the marriage were taken into account during the dissolution. The Family Law Reform Act 1995 (Cth) simplified the divorce process and thus made it more cost effective and less time consuming.
However, the introduction of this act has resulted in one in two marriages breaking down today. In result, it has been seen as ineffective for making it far too easy for couples to access and apply for dissolution, leaving many children having to witness the public quarrel between both parents. Furthermore, it has been criticized, that there still remains inequality in judicial decisions in residency disputes, where men are less likely to receive equal residential contact with children. Although a child support scheme has been created, there is still a lack of enforceability of support payments as only 30% of children of divorced parents obtain maintenance.
Parents are cautioned with imprisonment for disobeying court orders but it does not help as a person in jail cannot pay support. Furthermore, the court believes it to be in the best interests of the child to stay in contact with both parents but it cannot enforce contact between parents and children. These issues still need to be addressed.
As society and time changed the definition and make up of a family changed also. In 1992 census, the Australian Bureau of statistics defined the concept of family as “two or more people living in the same household and related to each other by blood, marriage, de facto relationship, fostering or adoption.” Although now, different types of families have emerged. Same sex relationships were illegal at the turn of the 20th century but through the fight by gay activists and lobbyists and changing social values, homosexual partners have been granted more rights.
Homosexual relationships were then accepted as a family for insurance purposes, established through the case of Hope and Brown v NIB Health Fund (1995). Further legislation and test cases improved equality for same sex partners. The Personal Carers Leave Test case (1995) declared gay employees were entitled to take sick leave to care for their partners.
The property (Relationships) Legislation Amendment Act 1999 (NSW) established that same-sex relationships received a de facto status after two years and are given access to the district court for disputes regarding the division of property and finances if the relationship breaks down. However, gay lobby activists have been pushing for further equality for homosexual couples, including the access to the right to adopt, attempt artificial birth and marry, as neither is legal in Australia under the current conservative government. Some believe it to be unfair that same sex couples cannot access the same equal rights as heterosexual couples, whilst on the other hand, ethical questions are raised about whether it is right to be homosexual.
The rights of children were recognized and protected internationally in the United Nations Convention on the Rights of the Child 1989, which Australia ratified in 1990. It outlined the vulnerability of children and their need for care and protection. The Family Law (Amendment) Act 1987(Cth) was established to include welfare and residency hearings to make sure children of dissolved marriages are cared for. The legal system has now also viewed children as paramount and has taken the stance that matters should be resolved “in the best interests of the child.”
Children have become the key individual in the family and society has viewed that they require the highest level of protection. In the case of B v B we find that the law has evidently made a decision based upon ‘the best interests of the child’. It also meant that all children, whether born in a marriage or not, were now covered by the Act. Further recognition and protection of Children’s rights are seen in the Family Provisions Act 1987, which ensures children are adequately cared for after the death of a parent as they are able to claim estate if left out of the will.
The Children and Young Persons Care and Protection Act 1998 (NSW) provides the boundaries of child discipline and requires doctors, teachers and social workers to notify the Department of Child Services (DOCS) on suspicion of child abuse. However, ‘reasonable’ discipline is hard to define in a multicultural society with different standards for different cultures. Although the punishment must be reasonable in accordance to the following conditions: age, size, health of child, child’s actions, severity of the blows and what was used to deliver the blows. In the case R v. Hamilton (1891) NSW, a child was beaten with a loaded gun, this was seen to be illegal. DOCS ensures that children are placed into safety if the suspicions prove to be true.
However, because of the resource inefficiency due to short staffing and funding cuts, many cases do not get investigated while other cases are drawn out and children may continue to suffer abuse. For those cases which are brought before court, a specialized children’s court is accessible for the sensitivity and vulnerability for children’s matters as is Legal Aid to all children in achieving justice for them. Despite this, there seems to be little equality for children at risk when DOCS do not intervene as they wholly depend on their actions.
The Crimes (domestic violence) Amendment Act 1982 (NSW) and An Evaluation of the NSW Apprehended Violence Order Scheme (1997) were enacted to further recognize and protect spouses’ rights as society no longer tolerated domestic violence and non consensual intercourse within marriage and demanded harsher punishments. Through legislation and government media campaigns, it has been found that Apprehended Violence Orders (AVO) have reduced the amount of stalking, verbal abuse, physical violence and harassments.
However the case of Jean Majdalawi (1996) prompted the government to take further action when she was shot by her abusive husband outside the Paramatta Family Court even with an ADVO taken out against him. Consequently, reforms have been made to include law enforcement agencies producing ‘protection plans’ for the victims to ensure their safety and stalking and intimidation were thus deemed a crime. In 1995 the Women’s Domestic Violence Court Assistance Program was established to assist abused women with legal issues and psychological support in applying for ADVOs.
However, issues raised include the lack of resources and access of all women to this program as it is deficient in funding and is limited in rural and remote areas. Legal aid is also helpful to struggling women but is hard to obtain due to funding cuts and is based on the financial status of the applicant.
The expanding development of technology in society has sprouted new legislation to be enacted. New birth technologies including Invitro Fertilization and Artificial Insemination have changed the means of producing a family. It raises questions as to who are the parents. The Status of Children Act 1996 (NSW) confirms that the woman’s consenting husband is the legal father of a child born through artificial insemination, not the sperm donor.
The child born of artificial means retains the same legal status as those who are born of natural means. Under the Adoption Act 2000 (NSW), commercial surrogacy is prohibited but altruistic surrogacy is legal and is where the sperm donor and the surrogate mother are the legal parents of the child. It is then up to the birth mother to surrender her rights to allow the fathers wife to adopt the baby. This ensures the rights of each member involved in the birth are not abused. There have also been calls for sperm donors to be identified and this questions who they legally consider the father to be and on whom the parental responsibilities lay.
Furthermore, legal questions arise from these new birth technologies as to the ownership of frozen embryos if the couple who donated them die or divorce, experimentation of embryos outside of a womb and human cloning. These issues are also ethical as they question the recognition ad protection of unborn Childs rights, which was breached in the case of white-head vs. Stern. Equality is also questionable as accessibility to these new birth technologies is only limited to heterosexual couples.
In conclusion, family law is ever changing and continues to develop to pursue justice for all family members as society changes. The law has also attempted to provide up-to-date legislation to apply to the changing needs of the community in terms of the dissolution of marriage, same sex couples, de facto couples, children, domestic violence and new birth technologies. However, society indeed changes more rapidly than legislation reforms and minority groups are usually suppressed for the majority. Hence, there are always problems with applying justice in terms of equality, accessibility, enforceability, resource efficiency and lastly the protection and recognition of individual rights for everyone.