2011 HSC questions

To what extent have changing values in the community

improved the rights of parents and children?
To what extent: evaluate
Changing values in the community
Rights of parents and children

Note as Jenny Mater pointed out on the weekend is this not an essay
about same-sex couples! The only way in which improved rights for
same-sex couples could be relevant to the essay is if you argued
that changes like The Adoption Amendment (Same Sex
Couples) Bill 2010 and Miscellaneous Act Amendment
(Same-Sex Relationships) Act 2008 gave greater protections to
children and thus created mire stability for children under these
relationships.

This essay has relevance to two related contemporary issues:

Changing nature of parental responsibility

Care and protection of children

You could argue in your introduction that since the passing of the UN
Convention on the Rights of the Child and subsequent amendments
to the Family Law Act 1975, the rights of children have been improved.
However, the emphasis on parents has been on responsibilities as
opposed to rights. This reinforces the attitude that in family law, the best
interests of the child is paramount and there is no such thing as equality
between family members.
Note the Family Law Act and Status of children Act 1996 ensure
that all children are treated equally. This has resulted in children
from ex-nuptial relationships receiving exactly the same
treatment as those born into married relationships. This
changing social value has had a direct impact on improving
childrens rights.
The Family Law Reform Act 1995 (Cth)reflects the moral and ethical
standards of society as it incorporated paramount consideration for

children upon the dissolution of a marriage in changing terminology such

as custody became known as residence and access was changed to
contact. The Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth) changed the 1995 terminology.
Residence is now termed the person whom a child is to live and
contact is now termed the time a child is to spend with another person.
This is a reflection of the moral and ethical standards of society as 50-50
equal shared parenting responsibilities is now starting point to which
custody matters are decided as children have the right to know and be
cared for by both parents. Could also mention the Child cases Project
that was designed for less adversarial trail for children and was
incorporated into the 2006 changes.
However, questionable as to whether changing social values, encouraging
contact with both parents have improved the rights of children.

Critics of the Family Law Act say the ideological pendulum has
swung so decisively in favour of children having contact
with both parents after divorce that children's safety and
psychological wellbeing are compromised. Changes to the law
in 1995 and in 2006 have put greater emphasis on the importance
of - in effect - the father's presence in children's lives. (For the
sake of the children 2/5/09 SMH)

Several reports looked into ongoing problem of family violence in

proceedings involving children:

The Family Law Council: provided advice to the AG about the

impact of family violence on children and on parenting
"Evaluation of the 2006 Family Law Reforms" by the Australian
Institute of Family Studies
A second report on family violence and the family law system by a
former Family Court judge, Richard Chisholm, "The Family Courts
Violence Review.
This report recommends amending the legislation to end confusion
about parents' rights to shared care.
Note the introduction of the Family Violence Act 2012 to attempt
to deal with some of these issues.

The Child and Young Persons (Care and Protection) Act 1998
(NSW) & the Crimes Act 1900 (NSW) reflect the moral and ethical
standards of society through protecting the rights of a child. If a child is
physically, sexually or psychology abused a person can be prosecuted, charged
and imposed a sentence upon under these two pieces of legislation.

DOCS system, Shellay Ward and Deans Shillingsworth

Woods Review and Ombudsmans Report into new model for child
protection (link to law reform and failure of existing law)
Despite the generally held moral standard that children
should be protected, have agencies like Docs effectively
upheld that standard?
See articles from 2012 that suggest shake up of protection
system has done little to better protect children

Parents rights?

No real equality in family law in light of best interests of the

child. This can mean non-resident parents are disappointed with not
getting equal time.
Can also mean limiting the rights of parents to relocate (although
note the recent change in attitude of the High Court) Top court
eyes joint care for parents The Australian October 03, 2009
12:00AM
Also note declining role for parents in areas such as medical care,
education and discipline. Refer back to recent articles about calls
for parents to have greater say in important medical decisions
regarding their children, such as gender reassignments.
Subsequent imposition of greater responsibility for the conduct of
children in acts such as the Children (Protection and Parental
Responsibility) Act 1997 NSW
It could be argued that the Family Courts emphasis on mediation
and parenting plans as opposed to parenting orders does facilitate
the greater recognition of parents rights and interests as they are
more directly involved in decisions affecting them.

Evaluate the effectiveness of the law in achieving

justice for parties involved in relationship breakdown.

Parties:

de facto couples and same sex couples

Married couples
Children

Effectiveness:

Resource efficiency
Accessibility
Protection of individual rights
Enforceability

Note that relationship breakdown is directly related to that part of the

syllabus dealing with problems in family relationships.
Children: note that much of the content relevant for this question could
also be used in question 1.
How effectively does the law deal with the children when relationships
break down?
You can look at this in a number of ways:

Breakdown of parents marriage: Reforms to the Family Law

Act in 1995 and 2006 are relevant. Contact with both parents as
opposed to protection from psychological and physical harm.
UNCROC and best interests of the child is relevant. Move to less
adversarial proceedings and Child Proceedings model. Use of
Family Relationships Centres aim to reduce conflict. Encourage
cooperation and promote childrens interests.
HOWEVER note the work weve done on the Family Court and
violence would be relevant also. Has justice been achieved for
children if they have exposed to greater levels of violence? Refer to
the recent Family Violence Act 2012 as a potentially effective law
reform.

Breakdown of relationship between parent and child with

regards to abuse or neglect: Refer to the material from the
Children and Young Persons Care and Protection Act 1998
(NSW). Children in need of care or children in trouble can be
those subject to abuse or neglect or those who are uncontrollable
and potentially committing criminal offences.
Young Offenders Act 1997 (NSW), Childrens Court and The
Children (Criminal Proceedings) Act 1987 NSW are all
relevant.
With regards to the neglect and abuse of children, the work on
reform of the DOCS system (through the Woods Report and
Ombudsman report) and the regime for child protection is again
relevant. Has it achieved justice by providing children with greater
protection? Questionable.

Married couples

Note Primary Dispute Resolution after reforms to Family Law

Act in 1995 and 2006. Could be argued that ease of access,
resource efficiency and attempts to reduce conflict by
avoiding court proceedings.
Family Law Act 1975 and provisions for future needs and
non-financial contributions: significant improvements in the
rights of non-working partners (usually women)
For more detail on the process followed see page 17 of the Hot
Topics handout. Note the importance s 79(4) FLA and issues such as
non-financial contributions and future needs. Also read C v M [2006]
on page 332 as an example of the complicated manner in which
assets are divided.
Note the rise of pre-nuptial or Binding Financial
Arrangements. The need for independent legal advice.
Note the recent reforms to make the entering of BFAs more
straightforward. Does this enhance or diminish the rights of
parties? See the articles below on pre-nuptial agreements.
In C v C [2005] the parties had several different superannuation
entitlements, which made the courts task in dividing each partys
share very difficult. The Court ruled that superannuation can be
shared in two ways. Firstly, it can be included as an item of
property, just like the family home and contribution and future
needs used to decide each partners share. Secondly, a separate
list of superannuation entitlements can be kept. This is the
preferred approach.

The superannuation entitlements must then be valued and divided

amongst the parties in a manner that is just and equitable.
However, it remains a difficult task for the court to decide each
parties fair share of the superannuation entitlements and this may
help explain why property settlements often result in feelings of
resentment in at least one of the parties.

Note that the Family Law Legislation (Superannuation Act)

2001 (Cth) now allows couples to split their superannuation in the
same way as their other financial assets of the marriage. Couples
will now be able to divide superannuation by agreement, giving
them flexibility and allowing them to avoid protracted court

proceedings. The legislation provides for a method of valuing a

spouses superannuation interest.

Child Support: Justice for children; justice for partners?

See Many fathers to pay less child support SMH 15/6/05 and More
dads taking bigger role after split SMH 27/4/07(attached)

Federal government taskforce released recommendations in June

2005 (Parkinson Report) potentially leading to drastic overall of
child support system

Recommendations include calculating child support due based on

combined income of the parents as opposed to % of taxable income
of the non-residential parent

Also proposed that cost of non-resident parent starting a new family

would be taken into account in child support calculations
Evaluation of effectiveness: for individual non-resident parents
(mostly fathers) a perception of a greater fairness and equality in
the process as they have felt that their individual rights have not
been adequately protected and recognised in the past.

On a resource efficiency basis, felt that the proposed changes allow

non-resident parents to meet financial commitments without
crippling them economically.

More cynical view that some non-resident parents increasing time

with children in order to reduce child support payments (see More
dads taking bigger role after split 27/4/07)
Mothers groups concerned that on a resource efficiency basis some
mothers may be worse off under the scheme and that the
recognition and protection of the rights of the child may suffer as a
result.
Recognition of contact to kick in when non-residential parents have
children for 14% of nights. Effectively reduces child support by 24%
in those cases
Acknowledges NRP set up costs, but does one night a week+ with
NRP reduce RP rent, infrastructure costs?

Child support formula baffles 90% of parents - study

ADELE HORIN
23 Jul, 2012 03:00 AM

THE child support scheme, which underwent a major reform in 2008, is so

complex that only a handful of experts can understand the rules, a study
shows.
Most of the 1.5 million divorced and separated parents who pay or receive
child support have no idea how the calculations are worked out, and most
of those who claim to know the rules are wrong.
''The new scheme was intended to reflect the complexity of modern
families, but it is so complicated that hardly anyone understands it,'' said
the lead investigator Bruce Smyth, an associate professor in demography
and social research at the Australian National University.

De factos/same sex couples/polygamous

marriages
Division of property: Originally under state jurisdiction: The
Property (Relationships) Legislation Amendment Act 1999
(NSW) allowed for division of property between same sex couples
and de factos.
The Family Law Amendment (De Facto Financial Matters and
other Measures) Act 2008 (Cth) which commenced on 1 March
2009 inserted Part VIIIAB Financial matters relating to de facto
relationships into the Family Law Act 1975 (Cth).
Part VIIIAB of the Family Law Act 1975 (Cth) allows states and
territories to refer the jurisdiction of financial matters in relation to
de facto couples to the Commonwealth.
This referral clearly included same-sex couples, finally giving them
access to the Family Court, provision for future needs and super
splitting.
Justice? Note the arguments already covered about greater equality
for de factos but do they want the additional responsibility of having
to cater for things like future needs, traditionally the preserve of
married couples.
Note that you could also cover the relief provided to
polygamous marriages and Aboriginal customary marriages
if time permits.

Independent legal advice required for Prenuptial

Agreements
Wednesday, January 13, 2010
The Situation - Prenup found not to be binding

Black v Black[2008]
A financial, or prenuptial agreement, had been entered into by a couple.
The agreement did not expressly state that both parties had received
independent legal advice. As it is a requirement of Financial Agreements
that independent legal and financial advice been received the agreement
was found to be not binding.
The changes to protect Prenuptial Agreements
Effective 4 January 2010, the Federal Justice System Amendment
(Efficiency Measures) Act (No. 1) 2009 (No. 122, 2009) - Schedule 5
amended the Family Law Act 1975 (Cth) and significantly modified section
90G. Section 90G(1)(b) and (c) were repealed and new sections inserted.
The effect of the change is to overcome the strict interpretation of the
previous version of the legislation as interpreted by the Full Court of the
Family Court in the above case of Black v Black [2008] FamCAFC 7.
These recent changes are designed to overcome this decision.
Comment from Mark Streeter - Sydney Family Law Lawyer

The amended legislation will enable legal practitioners to provide signed

statements that they gave independent legal advice either before or after
the spouse party signed the financial agreement, and provide copies of
the statements to be provided either to the other party or to the legal
practitioner of the other party.
The changes also provides the Court with the discretion to declare a
Financial and Termination agreement to be binding, notwithstanding that it
fails to meet the procedural requirements in relation to the making of the
agreement providing the Court is satisfied that it would be unjust in all the
circumstances if the agreement did not bind the parties.
The impact of the legislation is retrospective and covers all Financial
Agreements entered into from 27 January 2000.

ABC News
2 January 2010
Pre-nup changes a boon for lawyers
By Emily Bourke for AM
For the past decade, Australian couples have been able to sign financial
agreements also known as pre-nuptials, enabling them to settle property
and maintenance if the relationship ends and without having to go to
court.
From next week, drawing up such contracts will be easier and they will
apply to married, de facto and same-sex couples.
The Federal Government says the changes will relax the technical
requirements for financial agreements and restore confidence in the
binding nature of those contracts.
But Michael Taussig QC, a Melbourne-based family law specialist and the
former chairman of the family law section of the Law Council of Australia,
is not convinced.
"The lawyers that are in the know are actually clapping their hands
because there's going to be more work for us, there's no doubt about
that," he said. "The law that's coming in sort of makes [pre-nuptial
agreements] not so sacrosanct anymore.
"Firstly it makes the hoops that you've got to go through to make the
agreements valid a little less arduous. And secondly it always gives the
court the discretion to set aside an agreement if it doesn't like what's in
it."
He fears the Government has not got the balance right.
"If I'm acting for the economically weaker spouse I'll say to them, well,
look, if you can't get a settlement that you like and you have to go to
court about it, you might as well apply to set aside the agreement and let
the full force of the Family Law Act work in your favour," he said.
"If you're acting for the economically stronger spouse, you're going to say,

well, get in there and settle it as quickly as you can because otherwise
your agreement may well not hold up and it may cost you significantly
more than what you think it's going to cost you."
To date, wealthier partners have been able settle matters with a one-off
payment, but Mr Taussig says that is about to change.
"Usually the economically weaker spouse gets a larger up-front payment
to sort of pay off the deal for not having to get ongoing spousal
maintenance," he said.
"Now with these sorts of agreements able to be set aside more easily
under the forthcoming legislation, people are going to be a little less sure
that they've been able to cut off the tap of spousal maintenance."
The new rules apply to all binding financial agreements, whenever they
were signed.
Mr Taussig says that represents significant risk. "There will be a lot of
nervous people because this legislation is retrospective," he said.
"We bleat about retrospective tax legislation as being unfair, well some
people might say that it's a bit unfair... it's hideously unfair to legislate
retrospectively for something that was perfectly OK and perfectly binding
at the time that the contract was made."
The federal Attorney-General did not respond to AM's requests for an
interview.
Audio: Legal concern over government changes to pre-nup rules (AM)

Prudent pre-nups have more strings attached

The Sydney Morning Herald
10 January 2010
Alex McClintock
The popularity of prenuptial agreements is expected to surge after laws that
strengthen them took effect on Monday.
Research by wedding website theknot.com.au found that 14 per cent of engaged

couples signed prenups, which are considered binding financial agreements

under Australian law.
John Barkus, a partner at the Sydney family law firm Barkus Doolan Kelly, said
binding financial agreements had become much more popular recently and the
trend would continue.
"The Government is recognising that [popularity] growth by bringing in these
changes," he said. "It's what people want."There are an increasing number of
couples who say 'let's get real about this', especially with the greater incidence
of relationship breakdowns than there were many years ago."
Under the legal changes, binding financial agreements are enforceable by a
court even if they contain minor mistakes. Other changes that came into effect
last year extended the availability of prenups to a wider variety of people,
including de facto and same-sex couples.
The majority of signatories are still wealthier heterosexuals and couples with a
wealth imbalance, Mr Barkus said. But for some, prenups are still a sticky issue.
Anne Hollonds, the chief executive of Relationships Australia NSW, said they
were only appropriate for some couples and common sense should be applied.
"I don't think there's any nice way to do it. You just have to talk with your partner
about what's important to you." Ms Hollonds said people should be cautious
about entering into agreements and remember that Australia has an effective
and powerful system of family law.
"If you're agreeing to something now, you don't know what your situation will be
20 years down the track," she said. Chris Dimock, a partner at Dimocks Family
Lawyers, said binding financial agreements should be treated like a will - prudent
but possibly unpleasant.
"Contrary to there being a social stigma, as more people become aware that
these agreements are binding, more people will be interested," he said.
http://www.smh.com.au/lifestyle/people/prudent-prenups-have-more-stringsattached-20100109-lzvc.html

Put on a few kilos and it's splitsville

By Clair Weaver

From: The Sunday Telegraph

August 17, 2008 12:00AM

AUSTRALIAN couples are turning to lawyers to settle weekly

household arguments over who cleans the toilet, walks the dog
and even how much their partner should weigh.
A record number of couples are signing prenuptial agreements, not just to
protect their assets but also their lifestyles.
Family lawyers are reporting rapid growth in prenuptial agreements traditionally the exclusive domain of celebrities or the wealthy - among
ordinary people.
With one in three marriages ending in divorce, lawyers say couples are
becoming more realistic about their relationship's future prospects.
Survey reveals: De facto couples still plan to wed

Rather than focusing solely on how to divide up assets, lawyers have told
The Sunday Telegraph of couples who insert conditions into their prenups
that dictate a partner must not gain an excessive amount of weight or
must remain faithful.
This mirrors a similar trend overseas, where prenups are being used to
stipulate an ever-broadening range of expectations in a union.
Radical Family Law Act reforms, now being debated in the Senate, will give
de facto couples the same rights as married couples after a break-up. To
settle on their own terms, de facto couples can draw up a binding financial
agreement (BFA) - the equivalent to a prenuptial agreement.
Jackie Vincent, partner at Australia's largest specialist family law practice
Watts McCray, said her firm was drawing up more prenuptial agreements
and BFAs than five years ago.
"The main reason I have come across is that people are either older and
want to protect their own assets, or they have been through a separation
before and they want to make sure they are protected," she said.
Christine Jeffress, senior associate and family lawyer at Slater & Gordon,
said de facto couples were also cautious about the legal ramifications of
entering into a formal, live-in relationship.
"People are more savvy these days - perhaps they have less expectation
that their relationship is going to last forever," she said.

There has also been a rise in the number of people seeking legal advice
after being asked to sign a prenuptial agreement by their partners. The
issue can create tension and, in some cases, even destroy a partnership.
Clients seeking prenuptial agreements come from across social
demographics, ranging from those who want to protect a one-bedroom
unit they bought while aged in their 20s to cashed-up business executives.
Most initiate prenuptial agreements for financial reasons but the list of
conditions can relate to any area of the relationship.
"The finance part is the binding part but many people think they might as
well work out lifestyle clauses," Ms Vincent said.
"It wouldn't surprise me if fidelity or weight was a clause. It depends on
the personalities involved and the relative positions of those involved."
In celebrity prenups, infidelity clauses are common. Michael Douglas
agreed to pay Catherine Zeta-Jones millions should he stray, and Denise
Richards made similar requirements of Charlie Sheen.
Others such as Paul McCartney, Greg Norman and Jessica Simpson have
been stung for millions in divorce settlements without a prenup.
Liz McLaughlin, a business owner, and her partner Greg Flavel, a
management consultant, are preparing to draw up a BFA. The couple, who
have been together for four years, will include provision for financial
divisions and care of their daughter, Grace, in the event of a break-up.
"We just thought it makes good sense that in the event of a separation not that we think it's going to happen - that what we bought into the
relationship is protected."