Evaluate the effectiveness of the Australian legal system in recognising and protecting the changing nature of the family’. Society has often advanced quicker than the Legal system and often the Legal system tends to lag behind or sometimes has to tend to societal values. An area that the legal system seems to be addressing with respects to societal values is through recognising and protecting the changing nature of the family.
The Australian Legal system has been moderately effective in recognising and protecting the changing nature of the family, through various legislation, and common law the Legal system has effectively been able to recognise and protect the changing nature of the family in regards to key areas such as de facto relationships, same sex marriages, rights of the children, divorce and adoption as well as recognising multiple different types of relationships in the country.
However there have been some ineffective stances of the Australian legal system in recognizing and protecting the changing nature of the family for example statistics highlighting that one third of children in separated families never seeing their fathers as well as the inability for same sex couples to get married.
Australia has proven effective in recognising the changing nature of the families, an example of this is the recognition of different families. Most families fall under the legal status of marriage which derives from the case of Hyde Vs Woodmansee (1866) which states”marriage is a voluntary union for life of one man and one woman, to the exclusion of all others “.
The nuclear family- a husband and wife and a child, blended family- a husband and a wife from separated relationships with step children, extended families- were more than just the mother and father are staying under the one household, and finally the increasing mixed family revealed in the article “Well be a nation of new migrants”, revealing Australia’s quick response in dealing and with and recognising the change in societal values. Thus the Australian legal system recognises and has employed measures in order to protect these families highlighting the effectiveness of the legal system.
Furthermore the Australian legal system recognises relationships that don’t fall under the definition of marriage. This includes those who fall under a De Facto relationship meaning an unmarried heterosexual or same sex couple living in the same residence and may have children. De facto relationships have been recognised through the Family Law Act 1975(commonwealth) and are protected immensely especially through the NSW Property Relationship Act 1984 recognising De Facto Relationships in NSW and also governs spousal maintenance.
This means if a separation occurs between the two it is dealt with in the same manner as a married couple. Were the couple go through the same process and must agree or go to the courts in order to determine who contributed to the relationship as well if any there are any kids in the family and who receives custody with regards to the best interest of the child. This is extremely important as statistics show that De Facto Relationships have risen from 5% of couples in 1982 in comparison to 12% of couple families in 2001.
This shows the relationship between society and the law as de facto relationships went on the rise the law changed according to the high rise. Furthermore De Facto’s were finally granted the exact same status as married couples in 2008 through the Family law amendment (de facto financial matters and other measures act). This act meant that de facto couples will be in the same position as married couples under the Family law act 1975.
The act is also intended to remove discrimination against de facto couples, by enabling them to resolve their financial and parenting issues in the family law courts using nationally consistent processes. The law also meant that mistresses were now able to claim for money if their partners had passed away with the new law technically finding a mistress relationship as De Facto. The new law means that mistresses now have a greater scope of protection and means that even mistresses are now being recognised as members in De facto relationships “New De Facto Laws mean cheats no longer prosper” ( Nick Leys Sunday Telegraph March 1/09).
This highlights the Australian legal systems effectiveness in protecting and recognising the changing nature of the family evident in de facto relationships. It could also be said that through the 2008 Family Law Act amendment the Australian Legal system is thinking of the future in ensuring that De Facto Relationships are being treated equally and are free from discrimination amongst society and the courts.
Another type of family in which the Australian legal system has been effective in is dealing with Same Sex Relationships. However there has been a slight degree of ineffectiveness in this issue with same sex relationships finding it extremely difficult in the past in order to obtain the same rights as married couples or even De Facto couples, thus one can interpret that in the case of Same Sex Relationship Justice is delayed thus the justice is denied.
Same Sex Couples it seems are unable to ever achieve the rights and be recognised through marriage as the Marriage Act 1961 specifically states that marriage is between a man and a woman and in order for Same Sex couples to be able to marry a new law must be passed as well as that section of the marriage act be amended.
However all states and territories in Australia recognise Same Sex Relationships in the exact same regard to De Facto relationship, this highlights effectiveness in the legal system as De Facto’s have the exact same status thus inferring that Same Sex Relationships are or should be equal of status to married couples however cannot officially marry. This seems to be the only difference between Same Sex couples and De Facto relationships.
The human Rights Equal Opportunity commission released its same sex entitlements report which outlined 58 different legislations were same sex couples had been discriminated against and with over 100 federal laws ignoring same sex couples. This report highlighted the discrimination and ineffectiveness of the Australian legal system to addressing the changing societal values of accepting same sex relationships.
This is further emphasised in the article “100 laws ignore same sex couples” March 1st 2008, Patricia Karvelas which reveals the flaws and the discrimination against same sex couples. However since the 2007 report much has been done in order to protect and recognise the changing rights of the same sex relationship. This includes the recognition of same sex couples as De Facto couples thus making them recognised and protected amongst society highlighting the laws effectiveness in doing so.
The catalyst for this being the 1995 case Hope and Brown vs. Nib Health Fund Ltd. The case found that the health fund had been discriminatory towards the couple and that they should be allowed to have their own insurance fund together. This case highlights perhaps the beginning in a long list of rights being achieved for same sex couples . This had to be achieved through various mechanisms as life wasn’t always bliss for same sex couples.
Legislation was passed late December 2008 “Same Sex Relationships (Equal Treatment in commonwealth law- general reform) that meant that through legislature Same Sex couples had no received the status they yearned for under the legal system. Furthermore they also received more protection a month earlier under the Family law amendment (de facto financial matters and other measures act) 2008. This act meant that Same Sex couples federally had attained the same status as De Facto relationships.
Consequently it also meant that same sex couples were now entitled to everything married couples were beginning with shared social security and various entitlements within employment and immigration as well a shared Medicare card. This coincided well with a galaxy poll in 2007 which stated that 71 percent of respondents believed Same Sex Couples should have the same rights as well as 57% percent of respondents believing Same sex couples should be allowed to marry this further emphasises the idea that societal values have the ability to manipulate the laws in order to fit society standards.
Further highlighting the effectiveness of the Australia legal system in recognising and protecting the same sex couple. Although the Australian legal system has done a lot in order to ensure that same sex couples have a high degree of rights there is a slight degree of ineffectiveness that disallows them from achieving the highest institution between a couple which is marriage. There was an attempt to address this flaw through the Marriage equality amendment bill 2009.
However the bill flopped and lost 45-5 votes highlighting the parliamentarian view and that it still has the prevailing power even though people are starting to lean towards allowing same sex couples to marry. This flaw highlights the slight ineffectiveness in the legal system as it is tending to past values of Christian beliefs and is going against this idea of looking towards the future as Australia seems to further embrace Same Sex Relationships as the years pass.
Furthermore another flaw is the fact that same sex couples are unable to have kids through adoption with the idea that it will mean there will be more gays and lesbians in society however this is quite the contrary to the article “ Gay Dads Want Their Sons to turn out straight” Sept 14 2003 , Candace Sutton Smh. This highlights that same sex couples want to be allowed to have kids and for them to be able to live a normal life. This further highlight the changing views in society and that same sex couples should be allowed to have kids.
Thus one can conclude that the Australian Legal system has been effective in ensuring same sex couples achieve rights and are protected however are slightly ineffective in addressing the issue of allowing same sex couples to get married and stopping them from having children. However with a look at the future it seems much is changing as same sex adoption is now legal in Tasmania and Victoria and many countries around the world allowing same sex adoption Australian seem obliged to jump on the bandwagon and do the same to reflect societal values.
Another area which highlights the Australian legal systems effectiveness in protecting and recognising the rights of the family is through the separated family and the measures implemented prior to divorce being undertaken. With separated families on the rise 11 800 in 1988 compared to 13 726 in 2007 in NSW it highlights the ease in which divorce and the change in societal values in now accepting divorce. Prior to the Family Law Act 1975 which introduced the revolutional no fault divorce.
Divorce prior to 1975 was frowned upon and with the introduction of the no fault divorce, divorce numbers soared through the roof. This meant that there had to be no fault just an irretrievable breakdown within the marriage. Consequently the Family Law Act 1975 saw the establishment of the family court which was meant to specialise in family dissolution and in cases in the best interest of the child. The legal system has done much in order to protect the rights of the separated.
Section 79c of the Family law act establishes guidelines in which property goes to which partner it depends on the contributions made as well any future needs that the divorcee may need. This is highlighted in “The Marriage of the Petersen’s 1981” which highlights that receiving money in the future is considered to be property and that if one needs financial contributions in the future the partner must be obliged to assist his or her ex partner.
However superannuation was never considered a financial resource which changed in the” Marriage of Coulter “1989 highlighting that Superannuation comes under a financial resource and must be split in order to aid to the idea of future needs and contributions. The law has also been effective in attempting to address growing Divorce rates by establishing alternative dispute resolutions centers. For example the 2007 amendment of he family law act establishes family relationship centers which include centers for mediation, and conciliation in order to attempt to reconcile the couple who are attempting to divorce. This amendment highlights the effectiveness of the Australian Legal System in addressing resource allocation and as well as making it more cost efficient and also a way to attempt to stop the growing trend of young divorce with statistics pointing out more then one third of marriages today end in divorce. Furthermore the legal system has been paramount in protecting and recognising the needs of the child.
Through the 2006 Amendment of the Family law act society is introduced to the shared parental responsibility as well as the Best Interest of the Child which is paramount when the family law takes anything to consideration in custody or separation disputes. This highlight the effectiveness of the law in implementing Croc- Convention of the rights of the children into domestic law as Croc deals with the best interests of the child and now Australian domestic law has ratified this agreement by dealing with the integral best interest’s child.
Thus one can conclude that the law has been very effective in addressing issues of recognising and protecting the changing nature of the Australian families. For example the recognition of De Facto and Same Sex relationships as well as the added emphasis on protecting children and divorcees in separated families. However the Australian legal system must look towards the future in order to address core issues like Same Sex marriages in order to be as efficient as countries like the Netherlands when addressing issues that have a core societal value.