Family Relationships

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Evaluate the effectiveness of the legal system in responding to changing community values in terms of achieving justice for family members.

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,...
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