Harry Flashman
Member
- Joined
- Mar 30, 2006
- Messages
- 141
- Gender
- Male
- HSC
- 2006
(a) Examine the legal system’s effectiveness in recognising and protecting the changing nature of the family.
The Australian legal system has undergone significant changes since its creation in an attempt to further recognise and protect the changing nature of the family in Australia. Many different configurations of ‘the family‘, (like Families with Same Sex parents and heterosexual de facto families) that were previously unrecognised have now been legally recognised and steps are being made towards complete and equal recognition of these families. However, despite these improvements the Australian Legal system still contains inequalities between these relationships and traditional ones. In addition position of the current Federal government has resulted in State and territory governments being unable to implement further changes.
The Family Law Act 1975 (Cth) established the Family Court and gave the state and territory governments the power to legislate on heterosexual de facto relationships (and later homosexual couples), but kept marriage a federal concern.. The result of this is that changes to the law with regards to heterosexual de facto and homosexual couples have been made almost entirely on a state by state level.
The recognition and protection of homosexual couples as a family is a relatively recent addition to the Australian legal system. A vast majority of legislation on the subject of same sex relationships has been made on a state or territory level and each state or territory varies in their legislative choices. In 1972 South Australia became the first state to decriminalise some homosexual acts, the Australian Capital Territory followed in 1976, then Victoria in 1980, then the Northern territory in 1982, NSW in 1984 and finally Western Australia in 1989. This decriminalisation was the beginning of a long line of Legislative reforms with regards to same sex relationships.
Despite our comparatively late start into same sex family law reform, the NSW legal system has since undergone some of Australia’s most extensive changes to protect and recognise these families. The creation of the De Facto Relationships Act 1984 (NSW) was very important, not only to heterosexual De Facto couples, but also to same sex couples. This act was the first time that any government body officially acknowledged that relationships outside the traditional form of marriage existed. It resulted in eight other NSW laws being changed so de facto relationships were further recognised.
For heterosexual de facto families, this act had a significant impact and provided a legal definition of what a de facto couple was. It legislated a division of property if a relationship broke down, allowed for spousal maintenance in certain limited circumstances and to decide if a separation of cohabitation agreement made by the couple was valid. This act was significant for same sex spouses because it began a trend of law reform in NSW and Australia that recognised a variety of family types outside of traditional marriage.
In 1996 NSW an amendment was made to two laws that included same sex partners as ‘immediate family’ for the rights of victims of crimes and their families. In 1999 NSW became the first state to recognise and protect same sex couples in more than a few laws. On the 1st of June 1999 the Property (Relationships) Legislation Amendment Act 1999 (NSW) renamed the De Facto Relationships Act 1984 (NSW) the Property (Relationships) Act 1984 (NSW) and introduced a number of reforms. Under these reforms 20 pieces of law were changed to include same sex couples as de facto partners and placed them on the same level as de facto heterosexual couples.
Further developments were made in 2000 when several NSW laws were changed to give same sex parents death benefits under superannuation schemes for public servants. Also further amendments were made under the Miscellaneous Acts Amendment (Relationships) Act 2002 result in 20 more NSW laws being changed so that same sex couples would be counted as de facto for areas like being called to give evidence against a spouse and some previously uncovered employment benefits.
Not all developments about recognising same sex spouses have been positive however and changes have been made on a federal level that have prevented further legal rights being afforded to same sex partners. In accordance with its position that same sex couples are not spouses or families the current Liberal-National Coalition government have taken a hard line stance on the subject of homosexual marriages.
An example of this stance can be seen through the passing of the Marriage Amendment Bill 2004 (Cth) which amended the Marriage Act 1961 (Cth). This bill formally defined marriage in section 5 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” and ensured that foreign same sex marriages would not be recognised, stating in section 883a “A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.”. It is important to note that this bill was supported by the Australian Labor Party.
In addition, when the Australian Capital Territory passed the Civil Unions Act 2006 (ACT), which formally recognised homosexual couples and gave them the same legal rights as heterosexual married couples, the Federal Government intervened and overrode the bill. This is an example of the Australian legal system failing to recognise and protect the changing nature of the family because the Federal Government believes that this will “undermine” traditional marriage.
In 1988 every state and territory but WA handed over their powers for children born outside of marriage to the Commonwealth and as a result heterosexual and homosexual de facto couples have their disputes over the care of children dealt with by the Family Court. On the 8th of November 2002 all states and territories but WA gave their powers to determine de facto property matters to the Commonwealth Government. The result of this is that the Family Court or Federal Magistrates Court now deal with property matters and de facto couples will no longer have to institute proceedings in two separate courts when dealing with property and the care of children. However, this change did not apply to homosexual couples and the Federal Government have stated that they refuse to deal with these couples.
Today, all matters that relate to the custody and welfare of children are dealt with by the Family Court and the family court makes no distinction on whether the parents were married or not. The Family Law Act 1975 (Cth) states that the child’s welfare is of ‘paramount consideration’. Australia is a signatory to the United Nations Convention on the Rights of the Child (CROC) and it was ratified into our legal system in 1990. CROC has since become a significant basis for how the Australian legal system deals with children and resulted in the creation of the Family Law Reform Act 1995 (Cth) which, among other things, stated that all decisions for child welfare and custody must be ‘in the best interests of the child’.
Today, children who are ex nuptial or ‘illegitimate’ have the same rights as children born into wedlock. Section 89 of the Marriage Act 1961 (Cth) defined ex nuptial children and at this time these children did not have the same rights as nuptial children. However the Family Provision Act 1982 (NSW) and the Children (Equality of Status) Act 1976 (NSW) removed the concept of ’illegitimacy’ to help recognise and protect the changing nature of the family.
The Australian legal system has undergone significant changes since its creation in an attempt to further recognise and protect the changing nature of the family in Australia. Many different configurations of ‘the family‘, (like Families with Same Sex parents and heterosexual de facto families) that were previously unrecognised have now been legally recognised and steps are being made towards complete and equal recognition of these families. However, despite these improvements the Australian Legal system still contains inequalities between these relationships and traditional ones. In addition position of the current Federal government has resulted in State and territory governments being unable to implement further changes.
The Family Law Act 1975 (Cth) established the Family Court and gave the state and territory governments the power to legislate on heterosexual de facto relationships (and later homosexual couples), but kept marriage a federal concern.. The result of this is that changes to the law with regards to heterosexual de facto and homosexual couples have been made almost entirely on a state by state level.
The recognition and protection of homosexual couples as a family is a relatively recent addition to the Australian legal system. A vast majority of legislation on the subject of same sex relationships has been made on a state or territory level and each state or territory varies in their legislative choices. In 1972 South Australia became the first state to decriminalise some homosexual acts, the Australian Capital Territory followed in 1976, then Victoria in 1980, then the Northern territory in 1982, NSW in 1984 and finally Western Australia in 1989. This decriminalisation was the beginning of a long line of Legislative reforms with regards to same sex relationships.
Despite our comparatively late start into same sex family law reform, the NSW legal system has since undergone some of Australia’s most extensive changes to protect and recognise these families. The creation of the De Facto Relationships Act 1984 (NSW) was very important, not only to heterosexual De Facto couples, but also to same sex couples. This act was the first time that any government body officially acknowledged that relationships outside the traditional form of marriage existed. It resulted in eight other NSW laws being changed so de facto relationships were further recognised.
For heterosexual de facto families, this act had a significant impact and provided a legal definition of what a de facto couple was. It legislated a division of property if a relationship broke down, allowed for spousal maintenance in certain limited circumstances and to decide if a separation of cohabitation agreement made by the couple was valid. This act was significant for same sex spouses because it began a trend of law reform in NSW and Australia that recognised a variety of family types outside of traditional marriage.
In 1996 NSW an amendment was made to two laws that included same sex partners as ‘immediate family’ for the rights of victims of crimes and their families. In 1999 NSW became the first state to recognise and protect same sex couples in more than a few laws. On the 1st of June 1999 the Property (Relationships) Legislation Amendment Act 1999 (NSW) renamed the De Facto Relationships Act 1984 (NSW) the Property (Relationships) Act 1984 (NSW) and introduced a number of reforms. Under these reforms 20 pieces of law were changed to include same sex couples as de facto partners and placed them on the same level as de facto heterosexual couples.
Further developments were made in 2000 when several NSW laws were changed to give same sex parents death benefits under superannuation schemes for public servants. Also further amendments were made under the Miscellaneous Acts Amendment (Relationships) Act 2002 result in 20 more NSW laws being changed so that same sex couples would be counted as de facto for areas like being called to give evidence against a spouse and some previously uncovered employment benefits.
Not all developments about recognising same sex spouses have been positive however and changes have been made on a federal level that have prevented further legal rights being afforded to same sex partners. In accordance with its position that same sex couples are not spouses or families the current Liberal-National Coalition government have taken a hard line stance on the subject of homosexual marriages.
An example of this stance can be seen through the passing of the Marriage Amendment Bill 2004 (Cth) which amended the Marriage Act 1961 (Cth). This bill formally defined marriage in section 5 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” and ensured that foreign same sex marriages would not be recognised, stating in section 883a “A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.”. It is important to note that this bill was supported by the Australian Labor Party.
In addition, when the Australian Capital Territory passed the Civil Unions Act 2006 (ACT), which formally recognised homosexual couples and gave them the same legal rights as heterosexual married couples, the Federal Government intervened and overrode the bill. This is an example of the Australian legal system failing to recognise and protect the changing nature of the family because the Federal Government believes that this will “undermine” traditional marriage.
In 1988 every state and territory but WA handed over their powers for children born outside of marriage to the Commonwealth and as a result heterosexual and homosexual de facto couples have their disputes over the care of children dealt with by the Family Court. On the 8th of November 2002 all states and territories but WA gave their powers to determine de facto property matters to the Commonwealth Government. The result of this is that the Family Court or Federal Magistrates Court now deal with property matters and de facto couples will no longer have to institute proceedings in two separate courts when dealing with property and the care of children. However, this change did not apply to homosexual couples and the Federal Government have stated that they refuse to deal with these couples.
Today, all matters that relate to the custody and welfare of children are dealt with by the Family Court and the family court makes no distinction on whether the parents were married or not. The Family Law Act 1975 (Cth) states that the child’s welfare is of ‘paramount consideration’. Australia is a signatory to the United Nations Convention on the Rights of the Child (CROC) and it was ratified into our legal system in 1990. CROC has since become a significant basis for how the Australian legal system deals with children and resulted in the creation of the Family Law Reform Act 1995 (Cth) which, among other things, stated that all decisions for child welfare and custody must be ‘in the best interests of the child’.
Today, children who are ex nuptial or ‘illegitimate’ have the same rights as children born into wedlock. Section 89 of the Marriage Act 1961 (Cth) defined ex nuptial children and at this time these children did not have the same rights as nuptial children. However the Family Provision Act 1982 (NSW) and the Children (Equality of Status) Act 1976 (NSW) removed the concept of ’illegitimacy’ to help recognise and protect the changing nature of the family.
