With respect to family, assess the ability of the legal system to respond to differing issues concerning values
Family law is the most complex aspect of the Australian legal system as it is constantly under review and reform pursuing to adopt society’s continual change in values and principles. The changing of laws in an attempt to be parallel with society is a strenuous process. Nevertheless, legislations are reflective of contemporary society’s values and ethics. Numerous legal issues arise in regards to family including, same sex relationships, domestic violence and divorce ideally on the best interest of the child, where family laws have been imposed to protect individuals and aim to achieve justice.
Traditionally, marriage was considered to be a voluntary union between a man and a woman defined by Hyde Vs Hyde and Woodmansee (1866) case and the unit of family was that of the “nuclear family” comprising of a mother, father and naturally conceived dependent children.
Homesexual relationship refers to two people of the same sex committed to a bona fide partnership. During the 20th century, same-sex relationships created controversy as they were heavily discriminated in all aspects of their life. They were not recognised as a legitimate family developing the inequality of rights and provisions in regards to child adoption and social security benefits. As a response to societal changing values, the legal system amended the De Facto Relationship Act 1984 (NSW) enacting the Property(Relationships) Legislation Amendment Act 1999 (NSW) which recognised same sex relationships having the same legal standing as de facto relationships.
This law allowed same sex couples to achieve justice by having greater access to facilities such as the district court for property and economic division in an event of a relationship breakdown. Also, the legislation recognised hospital visitation rights and the inheritance rights of one partner if the other dies, recognising the rights of same sex relationships to be equal with de facto relationships. The Hope and Brown V NIB Health Funds (1995) case recognised the extent of discrimination on the basis of sexual orientation and the ideal family unit. The tribunal found that the same sex couple had been discriminated against the attainment of the family fund policy as the couple did not comply with the definition of “family”. Hence, as society’s values changes, the rights of homosexual couples are gradually achieving justice.
Equality has been promoted where homosexual singles are allowed to adopt a child under the Adoptions Act 2000(NSW). However, homosexual couples are still unable to adopt reflecting on society upholding the traditional custom where family is composed of a biological mother and father. The legal system has been criticised in regards to alternative birth technology available to same sex couples.
The law has allowed same sex couples to use birth technologies such as artificial insemination but they are not considered the legal parents of the child until adoption procedures are undertaken. Since then, the legal system has enacted the Miscellaneous acts Amendment (Same sex Relationships) Act 2008, amending the Status of Children Act (NSW) stating that a woman in a homosexual relationship who undergoes artificial fertilisation procedures, the other woman is presumed to be the parent of the child as a result of pregnancy if she complies to the procedure.
This strongly highlights how the Australian legal system responds to views on acceptance of same sex families recognising shared rights and responsibilities over the child and differing options of family arrangements. The Australian legal system has responded effectively where same sex families have experienced a gradual increase in achieving equal grounds of rights as heterosexual families on the basis of reducing discrimination and recognising their status of having children in society. This is solely reflective of society’s dynamic reforms in values and principles.
Power and control through physical and psychological means challenges the legal system within the issue of domestic violence. What used to be a private issue has significantly reformed to be punishable by law highlighting society’s changing values. The main victims of domestic violence are usually women and children who are subjected to extreme abuse by the spouse. The Family Law Act 1975(Cth) established the Family court which attempted to address issues of domestic violence. However, the imposition of this legislation has reflected societal concerns where the law does not effectively deal with domestic violence as cases are continually unreported. Also, police are not adequately investigating the issue.
For example, in the case of Swan, Wayne v D.P.P (2008) an indigenous woman was reluctant in reporting abuse until she was caught wandering the streets, heavily affected by alcohol. Due to cultural barriers, indigenous woman are compelled endure intense abuse in the household. The enactment of Crimes Amendment (Apprehended Violence) Act 1999(NSW) made it mandatory for police to investigate breaches of apprehended domestic violence orders (ADVOs) and arrest perpetrators if necessary. Greater use of ADVOs and investigation has reduced the amount of verbal abuse, physical violence and harassments. However, the case of Jean Majdalawi (1996) forced legislations to take further actions as the victim was shot in the head by her husband outside Parramatta Family Court even though an ADVO had been filed against him.
Consequently, the event influences reforms to the legislation where the inclusion of law enforcement agencies was necessary to produce protection plans for the victim, ensuring their safety. The Australian legal system has been prompt in addressing domestic violence by highlighting society’s intolerance towards domestic violence and non consensual intercourse within marriages where harsher punishments were demands. The legal system has effectively addressed the issue, but on the basis of protecting victims, law enforcements have been heavily criticized for not upholding the protection of victims.
Cultural traditions dictate that it is against the will of God to undergo the dissolution of marriage. However, divorce is now seen as a less serious if one partner commits adultery. The law continually responds to this issue where the Family Law Act 1975 (Cth) outlines the “irretrievable breakdown of the marriage” to be the only ground of divorce. This means that the process of divorce is less costly and less time consuming. Also, the parties of divorce have to be separated for a minimum period of 12 months with no likelihood of reconciliation. Even though the legislation has removed the concept of 14 fault divorce previously outlined in the Matrimonial Causes Act 1959 (Cth), it has strongly upheld society’s values by not encouraging divorce to take place. A paramount concern of family law is the concept of children.
The legal system established a protocol where dissolutions of marriage are not settled until all issues concerning children are accounted for. One major response to the issue is the development of the Family Reform Act 1995 (Cth) which focused on parents not having custody of children but rather a shared responsibility to their guardianship. Parents were obliged to divide aspects of the child’s upbringing including maintenance, and the period of which the child resides with one parent.
The enactment of the legislation has thrived criticisms as society condemns the ease for couples to access and apply for dissolution causing disruption in family order as children are compelled to witness the public quarrel of both parents. Also, inequality in judicial decisions on residency created unfairness where men are less likely to receive equal residential contact with children.
As a result of society’s changing cultural traditions, the legal systems remedy in dealing with divorce is ineffective in catering for the child as they are exposed quarrels between parents affecting their psychological well being and upbringing. Thus, the legal system should adhere to traditional customs of having the 14 fault divorce policy where children will not be subjected to unnecessary events of violence and disputes or encourage alternative dispute resolutions such as mediation and conciliation rather than court procedures. This ensures that the best interest of the child is managed and reflects society’s discouragement of divorce.
In an overall sense, it is impossible for laws to guarantee effectiveness as there will always be differing views and injustices occurring between families and the law. The Australian legal system has responded to issues with the concern of culture, value and ethics aiming to achieve justice for families. There will always be areas of improvement where legislations and protective mechanisms address issues to achieve justice and recognise individual rights. Societal values and ethics will constantly undergo change and the legal system must ensure that practices are imposed in identifying issues and respond actively.
Total Words – 1388 (Without Articles)
Articles that can be used “Australia aims to recognise same sex unions” (SMH 2009) highlights intentions of Australian society readily recognising same sex relationships in society. “School Fails Kids over divorce” (SMH 2010) highlights how aspects of a child’s life demean and exclude one parent as they are not applicable to interact with child’s schooling life hence “Fathers feel excluded from activities such as parent teacher interviews.