Issues in Family Law1. Same-sex Relationships

2. Changing nature of parental responsibility3. Surrogacy and birth technologies

4. Care and Protection of Children

Same-Sex Relationships (SSR)The Marriage Act 1961 (Cth) excludes same-

sex couples. Marital legal status remains ‘single’

Other countries have recognised same-sex relationships e.g. Belgium, Spain.

The marriage Amendment Act 2004 (Cth) reaffirmed the definition of marriage ‘ the union of a man and a woman’

Legal ResponsesThere have been many law reforms

recognising SSR between 2000 – 2009. Definitions have changed to include ‘de facto partner’ ‘couple’ ‘parent’

Changes to Medicare, tax, social security, superannuation, worker’s compensation and child support.

Adoption for SSR has also been introduced

Non-Legal ResponsesSpecific groups continue to lobby for change

E.G Australian Marriage Equality and the Gay and Lesbian Rights Lobby

Lobby groups apply pressure for marriage equality and are not satisfied with civil unions and de facto status

Some sections of the media have been critical of these changesE.g. John Laws in 2004

Responsiveness of the Legal SystemA significant number of politicians must

support legislative reform The Anti-discrimination board has made many recommendations for law reform

However Law reform continues to increase SSR rights in a direction away from amending the Marriage Act 1961 (Cth)

http://year12-legalstudies.wikispaces.com/videos

2. The changing nature of parental responsibilityIn the past – parents gained ‘custody and

control’. The courts are more concerned with parental responsibility today

The law aims to ensure positive and supportive family structures even when parents separate

Legal ResponsesIn more then 60% of parenting plans and

orders, children spend more time with their mother

Reforms in 2006 aimed at shared parental responsibility but unfortunately have produced the idea of 50-50 shared care for their children

Major change (2006) ‘substantial and significant time’. This has caused disputes between parents

There still remains the issue of domestic violence involved in parenting plan disputes

Non-Legal ResponsesMany institutions can help separating

parents negotiate parenting plansDadlinkNational Council of Women Australia

Responsiveness of the legal systemThe law has changed due to social attitudes

(father’s roles)Responsibility is no longer the mother’s role –

care and protectionThe most obvious legal response has been to

equal responsibility and substantial time

3. Surrogacy and Birth TechnologiesWhich include:

Artificial Insemination – donated sperm artificially introduced to the vagina

IVF (in-vitro fertilisation) – Resulting embryo is implanted into the uterus

Genetic manipulationGene sharing

Many legal issues arise from this form of technologyPaternity rights of the father

Case B v J (1996) – father refused paying maintenance, arguing that the sperm donor should pay. Court rejected this claim.

SurrogacyCouple and a woman agree to bear a child

together where the couple looks after newbornMother who conceived the child is still the

natural motherLaws differ from state to state which has

created inconsistencies, uncertainty and conflict

Legal ReponsesState based lawNSW lacks clear state legislation on

surrogacyThe concept of presumption of parentage

continues to expand

News Articlehttp://www.theage.com.au/news/national/twins-made-in-australia/2004/05/01/1083224642057.

html

Non Legal responsesVarious lobby groups have opposed surrogacy

on moral groundsView that same-sex couples can have children

through this technology

Responsiveness of the legal systemFederal law has been slow to solve problems:

Clarify rights of all parties involvedClarify the rights of the child bornRemoving inconsistencies between federal and

state legislation

This area remains a major focus of law reform due to rapid changes in birth technologies

4. Care and Protection of ChildrenAll levels of government have passed

legislation regarding domestic violenceThe Children and Young Persons (care and

protection) Act 1998 (NSW)Amendments to Family Law Act in 2006

(Shared Responsibility)

Reports of domestic violence continue to increase steadily

Legal ResponsesCourts have the power to restrict visiting

rights to a parent who is violentIf domestic violence is reported, can be used

in court to restrict a family member

Non Legal ResponsesMany organisations concerning protection of

children are involved to improve family issuesChild Abuse Prevention Service (CAPS)Child Protection and Family Crisis ServiceThe Benevolent SocietyParenting NSW

Responsiveness of the legal systemReview undertaken in 2006 about the NSW

child protection systemThe legal system accused of acting to slowIn 2007, more than 150 children who had

been reported to children services died while still involved with an abusive parent of carer