The changing values of society have put pressure on the legal system. With this, new problems have occurred with some legislation, regarding families. It is vital that effective modifications of pervious leglislation be enacted to solve these problems. Continuing to do so as the society continues to change in the future.
Under the Family Law Act 1975, family violence is defined as:
'Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear of, or reason-ably to be apprehensive about, his or her personal well-being for safety.'
In short, family violence is any act that results in a member of the family suffering from emotional, physical, psychological or sexual harm from another family member. Links include; * Husband on wife
* Wife on husband
* Mother/ father on child
* Child on mother/father
* Child on child
* Etc (uncles, cousins)
Family violence can be triggered by many internal and external influences, including; * Drugs
According to the Australian institute of family studies, a survey based around this issue discovered that regardless of background, culture, age group and status family violence does occur in many families. However not one of these factors makes it ok to commit violence on family members. It is a crime!
The Family Court of Australia was created by the Family Law Act 1975 (Cth) to interpret and apply the law to individual cases. In NSW, family violence orders are called Apprehended Domestic Violence Orders (ADVO). Similar to an ordinary AVO, however prohibits one parent from coming within a certain distance of the other, except for the delivery or picking up of the child. When making a judgement the Family court must take into account certain factors; which include; * Having the child’s best intentions
* Not placing the child is an unsafe position
Throughout the late 1980’s till now there have been several acts introduced which protects victims and allows them to use this legislation in court. * The Crimes (Family Violence) Act 1987- It allows for people who are being threatened, assaulted, harassed or molested by a family member to apply to the Magistrates Court for an order which places restrictions on the defendant's behaviour. * The Domestic and Family Violence Protection Act 1989- This act provides protection to people experiencing domestic and family violence by allowing the court to make a domestic violence order, which will prevent the violence from happening again. * The Children and young persons (care and protection) Act 1998 (NSW) - covers abuse and neglect. * Crimes (Domestic and Personal Violence) Bill 2007- introduced to protect people from domestic and personal violence. This Bill acts as one-stop domestic violence legislation and includes application processes for ADVO's and APVO's.
The changing values of Australia have forced legislation to be changed to reflect the values of society, as they continue to change. Values of society have greatly changed since 1976, back then violence between spouses had not been considered relevant to the welfare of the child. The Family Court has been effective in that it has introduced changes within the legal system to punish the offender committing family violence, along with the legislation previously stated. “Escalating family violence, economy blamed (2008)” from the Daily Telegraph, provides a reason for why violence in households are on the increase, main argument being the financial pressure that comes with the responsibility for raising a family, with the stress of work, rise of interest rates, etc (back in 2008). However family violence IS a crime and the law will not tolerate it, no matter what the excuse is. The right steps are being taken in achieving justice in court matters regarding the issue. Campaigns ( ‘No to Violence’ and ‘Domestic/ family violence: see the signs, be the solution’) has also increased awareness of the issue of family violence. The uses of these media campaigns have gone hand-in-hand with the changing society. The technological advances have made it easier to get the message out to people (30 second ads before viewing a YouTube video). However, family violence is still occurring in Australia and family members need to have as much support as possible, from government and society as a whole. There needs to be more legal reform to protect the rights of individuals. As society continues to change the law must keep adopting to the changing values of the nation.
Same- Sex relationships
Two people of the same sex explicitly cannot marry, as a homosexual marriage would not fulfil the criteria for a valid marriage set down in Hyde v Hyde & Woodmansee 1866 (the union of a man and a woman to the exclusion of all others, voluntarily entered into for life). However it’s similar to woman and indigenous people who were not allowed to vote there is no real justification to stop people of the same sex to marry. People in same sex relationships always have to follow very outdated legislation about the issue of Gay marriage. With the changing value/ beliefs of society, same sex couples are becoming more accepted with. This acceptance has already been shown in countries that have legalised gay marriage.
Homosexual couples (unmarried) are unable to adopt children, that homosexual relationships are not deemed stable enough for adoption, saying this however, same sex couples can be foster parents. This is a very ‘grey area’ in legislation for this outcome. Australian law is very confusing if a person is in a relationship with someone of the same sex. If their partner gets injured or dies, the other is entitled to claim social security benefits, also can use family-entitlement benefits to take leave from work and look after their partner. This is the exact same entitlements a heterosexual couples are entitled too. But same sex still cannot marry?
Steps have been taken over time to provide assistance for same sex couples to reflect the changing values of society. The De Facto Relationships Act 1984 (NSW) was changed in 1999 to the Property (Relationships) Act, in this change, all mention of heterosexual couples were eliminated, therefore allowing same-sex couples to now be classifies as being in a de facto relationship.
The main law reform that needs to be addressed is the one regarding the legalisation of same-sex couples to be able to marry. Disallowing this is breaching some of the human rights that everyone is entitled too, including homosexuals. In the past the majority would be behind the non-legalisation of gay marriage, happy with the way the laws are at this point of time. However this is not the case in today’s time, the changing values of people in the 21st century believe that people should have the right to marry who they like. This is emphasised in a phone survey in 2011, where 79% were against the discrimination of people based on sexual preferences.
Divorce is the legal termination of a marriage by an official court decision.
Divorce itself has gone under many changes since first introduced in Australia, first implemented in the matrimonial cause’s act 1959, which stated the grounds that could be associated with divorce. Back then the grounds for divorce included; * Adultery (cheating)
* Cruelty (family violence)
Males had much higher success rate of having divorced approved as they only needed to prove adultery as the sole reason for why he wanted a divorce. Females however had to prove two of options. This method had not been effective and did not adhere to societies changing values on divorce. Next legislation adapted from the previous was The Family Law Act 1975, in this act divorce had much more equality, one member of the couple only need to show that the marriage broke down irretrievably. For this to be proven the parties must be ‘living separately and apart’ for a 12 month period. This reasoning was much more acceptable and up to date with the current values of society at the time. Mainly due to the ‘no fault’ principle for the reasoning for separation.
As the values of society continue to change regarding divorce, the legislation needs to continually conform to address future issues that may present themselves. Again with social media being a big part of people’s lives. Websites both good and bad (for the money) have been created direct at struggling people currently in a relationship. A positive website is www.goodtherapy.org which is an online relationship counselling program aimed at helping couples that are in a ‘rocky’ part of their relationship. However, when there is good, there is always bad. Ashley Maddison is a social media site with the slogan “life’s to short, have an affair” speaks for itself. Legislation has been very effective in this case, even though divorce has become easy, it’s statistically proven that divorce numbers haven’t increased. Prior to 1974 it was approx 50% ended in divorce. In 2013 the percentage is 32% end in divorce.
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 divorce, same-sex relationships and family violence. However, society has proved in the past that in changes more rapidly than legislation does and minority groups (female, indigenous Australians prior to 2000, homosexuals present group). Hence, there are always problems with applying justice in terms of equality and the protection and recognition of individual rights for everyone. So it is vital that the legal system reflects the values of the changing society.