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...
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