Family Law
LEGISLATION 1. The Family Law Act 1975 (Cwlth) Created concept of no-fault divorce Establishment of the family court Removed grounds legislated under the Matrimonial causes Act 1959 Amendments in 1983, 1987, 1995 and 2006
Effectiveness Chief Justice of Family Court said new provisions of the act may be dissuading women from raising allegations of family violence Achieves justice for society because it reflects their values Constant change responded to evident through the number of amendments
2. Property (Relationships) Act 1984 (NSW) Formerly known as the De Facto Relationships Act Created a statutory scheme in which non married heterosexual couples could resolve property disputes Was changed in 1999 following suggestions from the NSW law reform + changing social values Definition of cohabitating couple was changed to include same sex couples
Effectiveness Promotes equality towards same sex couples Reflects values of changing communities
3. Status of Children Act 1996 (NSW) Attempts to improve systems on determining a childs parentage
Improvement on Children (Equality of status) Act 1976 by removing previous parenting presumptions Both parents had the same right to the child if conception was consented by both
Effectiveness Recognises rights of same sex couples to have equal parenting rights Also promotes equality before the law + removes discrimination
4. Child Support (Assessment) Act 1989 Highlights importance of maintaining the wellbeing of the child Ensures parents provide proper financial support Previously, discretionary method was used, but this act created a formula to determine child support
Effectiveness Equality because it takes individual circumstances into account However uses a lot of resources
5. Children and Young Persons (Care and Protection) Act 1998 (NSW) Relating to custody and guardianship of minors Creates provision for DOCS to remove children at risk of abuse Arose as a result of UN giving increased importance to rights of children (CROC)
Effectiveness Not accessible to people in rural areas Not enforceable, due to the proof required + small number of convictions
LEGAL PROCESSES AND INSTITUTIONS 1. The Court system
Family law court + Federal magistrates court (created under the Federal Magistrates Act 1999) Long time to achieve justice (90% of cases took 27 months to resolve) Cost intensive making it unaffordable to some Protects individual rights (the family Law court in Qld granted an order so that an 11 year old girl could receive lifesaving treatment) Creation of federal magistrates court relieved the workload of the Family Court
2. Family Relationships Centres (FRC) Created in 2006 under reforms to the Family Law Act Requires parents to seek mediation before going through the courts (Provides more access and equality) Effective as most matters are resolved here Non enforceable but their decisions are the basis of the family court hearing their case However, Rudd govt. announced to cut funding by $48.4 Million (not reflecting views of society)
3. Police Function of police in family law is the monitoring and serving of AVOs Unenforceable as police cannot directly control behaviour of individuals Domestic violence increased by 25% between 03 and 08 (not effective) Only 32% of these cases reached court (resource inefficiency)
4. Australian Law Reform Commission Established in 1975 to conduct reviews into various aspects of the legal system
Not enforceable, however findings often result in changes Majority of staff over 40, doesnt represent changing social values
World Order
1. World order Definition the political, economic, or social situation in the world at a particular time and the effect that this has on relationships between nations/balance of power between nations Comment on issue of sovereignty Unsuccessful attempts at reform in 2005
2. International Court of Justice (ICJ) Not binding or enforceable, but has significant persuasive force Established in 1946 to settle territorial and treaty disputes. Example is the case of genocide of the Bosnians in 1995. ICJ ruled saying that there was not enough evidence
3. Security council peace keeping missions Again raises the question of whether force should be used or not. Example of force troops being sent into Congo in 08 Example of non-force Ban Ki moon wanting to go to Congo and negotiate
4. International Criminal Court (ICC) The ICC is governed by the Rome Statute and perpetrates people who commit serious crimes against humanity Has limits such as the number of signatories + complimentary jurisdiction/use of non-surrender provisions Pluses of ICC extended jurisdiction even for non-signatory nation states + greater sense of justice for individuals through witness testimonials and individual testimonials
There have been several challenges to its credibility (Rome Statute states there must be an equal number of male and female judges, however there is an under representation of female judges, which raises question of equality In cases such as sexual assault The trial of Tomas Lubanga (Ugandan) in 07 shows unfairness of ICC such as (a) Majority of witnesses being anonymous (b) Testimonials behind closed doors (secrecy + lack of transparency)
Not enforceable
5. International Crisis Group Not for profit organisation founded in 1995 to prevent and resolve deadly conflict. Provides advice to governments
6. Non legal remedies The media acts as a catalyst to action + raises public awareness. E.g. Massacre in Congo. No one knew about it until UN intervened Persuasion Political negotiation
7. Law reform International instruments Security council resolutions (e.g. definition of rape as a crime against humanity) ICJ, tribunals and ICC
8. Conditions giving rise to law reform Failure Technology Changing composition of society
New concepts of justice (responsibility towards society classifying rape as a war crime, and prosecuting individuals and governments)
9. Treaties CIS collective security treaty (1992) Treaties are ended if one nation breaks the terms, a new treaty is created which covers the same principles, or all signatories decide to end it
10.
Other international measures (refer to my other notes) League of nations covenant Pact of Paris UN Charter
