Contemporary Issues Concerning Family Law (HSC SSCE Legal Studies): Revision Notes

Contemporary Issues Concerning Family Law

Introduction

Family law in Australia continues to evolve as society changes. This note examines four major contemporary issues that challenge traditional legal frameworks: the recognition of same-sex relationships, changes in parental responsibility, surrogacy and birth technologies, and the care and protection of children. Each issue demonstrates how the law attempts to balance competing interests while protecting vulnerable family members.

Issue 1: Recognition of same-sex relationships

Background and historical context

Historically, the Marriage Act 1961 (Cth) and various state laws granted heterosexual couples significant rights and obligations that were denied to same-sex couples. Although the Sex Discrimination Act 1984 (Cth) and state anti-discrimination legislation protected heterosexual de facto couples from discrimination based on marital status, same-sex couples remained excluded because their legal status was classified as 'single'.

Globally, the Netherlands became the first nation to legally recognise same-sex relationships in $2001$. Other countries including Belgium, Spain, and Canada followed. For many same-sex couples, legal recognition extends beyond simply obtaining the right to marry—it represents the removal of institutionalised discrimination and ensures adequate legal protections.

Legal responses

Between $2000$ and $2009$, Australian states and territories introduced various law reforms recognising same-sex relationships in specific areas, though federal law still did not grant them the same status as marriage.

Following the Australian Human Rights Commission's $2008$ report Same-Sex: Same Entitlements, the Australian government introduced reforms aimed at removing discrimination and providing same-sex couples with equal entitlements to those enjoyed by heterosexual de facto couples. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 removed discriminatory provisions from numerous laws by amending definitions including:

• 'de facto partner'
• 'child'
• 'parent'
• 'couple'
• 'family'

These amendments now encompassed same-sex relationships in areas including:

• Tax concessions
• Social security
• Family law
• Superannuation
• Workers' compensation
• Child support
• Medicare registration

A significant change in state law involved recognising a same-sex partner as the 'parent' of their partner's child. Previously, male partners in heterosexual relationships automatically gained parental rights and responsibilities for children conceived during the relationship. However, same-sex partners had no legal standing and could not make decisions about day-to-day care unless ordered by the Family Court. The Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008 (NSW) granted equal parenting rights to female partners of mothers, with both listed as mothers on the birth certificate. This reform:

• Gives children born into same-sex relationships equal inheritance rights from both parents
• Protects the rights of both mothers if the relationship ends

In September $2010$, the NSW Parliament passed legislation allowing same-sex couples to adopt children.

Under the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), property and maintenance matters for separating homosexual couples are determined by the Family Court or Federal Magistrates' Court. The Act extends the definition of 'de facto' to include two people who are not married or related by blood who live together 'on a genuine basis', without distinguishing between same-sex or opposite-sex relationships.

Non-legal responses

Non-legal responses to reforms have ranged from complete support to strong criticism.

Supportive responses:

The Australian Human Rights Commission has conducted numerous inquiries into discrimination and human rights violations. The Commission makes recommendations to government regarding removal of institutionalised discrimination and ensures compliance with UN human rights treaties. Their $2007$ report Same-Sex: Same Entitlements recommended amending federal laws that discriminated against same-sex couples and their children in financial and work-related entitlements.

Australian Marriage Equality argues that the legally recognised institution of marriage should not exclude same-sex couples. They contend that different classification sends a message that such relationships are of lesser standard and that the people are second-class citizens. Justice requires changing the law to make marriage available to all Australians who choose it.

The Gay and Lesbian Rights Lobby has a wide-ranging agenda including advocacy, lobbying government and media to address discrimination, hosting consultations, educating the gay and lesbian community on their rights, and providing referrals to legal and welfare services.

Critical responses:

Some media outlets have criticised these changes and resorted to ridicule. In $2003$, two radio program hosts made comments 'capable of inciting severe ridicule of homosexual men', breaching vilification provisions of the Anti-Discrimination Act 1977 (NSW). Their appeal was settled in $2008$ with public and written apologies.

Responsiveness of the legal system

For legal change to occur, courts must be willing to act, a significant number of politicians must support legislative reform, and societal change must occur. Law reform bodies investigate and recommend changes.

The Anti-Discrimination Board of NSW, part of the NSW Department of Justice and Attorney General, administers anti-discrimination laws in New South Wales. Its functions include:

• Handling complaints of discrimination
• Informing the public about preventing and dealing with discrimination
• Advising government and making recommendations

The Board has made numerous submissions to state and federal governments regarding legislative changes necessary to provide same-sex couples with the same legal rights and protections enjoyed by married couples.

However, arguments against recognition of same-sex relationships continue to influence the public sphere. While the Rudd government's $2008$ legislative changes to de facto entitlements were welcomed, the government refused to amend the Marriage Act to permit same-sex marriage. In $2009$, Prime Minister Rudd stated that the Australian Labor Party considered marriage a union between a man and a woman, opposing gay marriage despite accepting the integrity of same-sex relationships.

Societal and economic considerations

Changes to the law should be encouraged if the law is to continue protecting the rights and mutual obligations created when two individuals form a relationship. Society benefits from protecting any mutually supportive relationship, particularly through economic benefits associated with two-income families (more likely without children). This purchasing power has been recognised by marketing and sales representatives seeking the 'pink dollar'. Penalising such relationships arguably contradicts society's interests.

Conclusion

In his $1999$ speech at the Conference on Legal Recognition of Same-Sex Partnerships, High Court Justice Michael Kirby stated:

"As a people committed to equal justice for all under the law, I have confidence that the Australian legal system, and those who make laws in Australia, will, in due course, eradicate unfair discrimination on the basis of sexuality. The scales are dropping rapidly from our eyes. Injustice and irrational prejudice cannot survive the scrutiny of just men and women."

Both state and federal governments continue to respond to issues surrounding discrimination. These issues extend beyond same-sex relationships to include recognition, rights and protections for non-traditional, alternative or extended family relationships.

Issue 2: The changing nature of parental responsibility

Background

The concept of parental responsibility has undergone significant transformation. Previously, parents sought 'custody and control' over their children, enforcing parental rights. Contemporary law focuses less on parental rights and more on parental responsibility. The emphasis is on ensuring parents fulfil their legal obligations towards their children.

Under the Family Law Act 1975 (Cth) ss $61$B and $61$C, parents have joint responsibility for their child. This applies equally to:

• Children born within marriage (nuptial)
• Children born outside marriage (ex-nuptial)

This responsibility is not altered if parents separate, marry or remarry, unless there is a court order otherwise. Reforms to family law have focused on maintaining positive and supportive family structures even when parents separate, while ensuring parents meet their responsibilities towards children.

Legal and non-legal responses

There is a perception that the ideal of shared parental responsibility frequently fails to reflect reality. Children often spend a disproportionate amount of time with one parent due to:

• Financial or geographic constraints
• Parental alcohol abuse
• Poor health

In over $60\%$ of parenting plans and orders, children spend more than half their time with their mother. The main reason for children spending no time or less than $30\%$ of time with a male parent was concern about abuse, family violence or entrenched conflict. For women, concerns included mental health issues, transport or financial problems, and abuse.

Legal responses

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced two types of considerations for determining the 'best interests' of the child (Family Law Act 1975 (Cth) s $60$CC):

Primary considerations:

• The benefit of the child having a positive and meaningful relationship with both parents
• The need to protect the child from abuse and family violence

Additional considerations:

• The child's wishes
• The nature of the relationship between child and parent
• The financial ability of the parent to care for the child
• The ability of the parent to provide for the intellectual and emotional needs of the child

Another change involved the notion of 'substantial and significant time' to be shared by each parent where equal time is not considered to be in the child's best interests (Family Law Act s $65$DAA). Some argue this provision has not sufficiently addressed parents' misperception that both are 'entitled to' time with the child, even when contrary factors exist.

When more time with children is coupled with reduced child support payments, motivations for seeking shared care become less clear. Courts may struggle to reconcile facilitating the child's relationship with both parents with the actual facts of particular family situations. A parent pressured into allowing more time may be discouraged from raising concerns about family violence, believing the court will order shared care regardless.

Non-legal responses

Community and church-based institutions, as well as nationwide organisations such as Relationships Australia, help separating parents negotiate parenting agreements and provide information and referrals. Counselling, education and skills training help parents develop better parenting skills and recognise gender issues that affect relationships with children negatively, such as:

• Assumptions that fathers are inherently less competent than mothers in caring for toddlers
• Beliefs that work-life balance is essential for mothers but less important for fathers

Resolving problematic issues about shared parenting and shared responsibility requires changes in societal attitudes, which interact with legislative enactments and amendments. Successful shared care occurred before the $2006$ amendments where parents were willing to cooperate to achieve the best circumstances for their children.

Non-legal mechanisms of value include:

• Women's resource centres
• National Council of Women of Australia
• Parenting networks for mothers, fathers or both
• DadsLink (part of YMCA's ParentLink program for single parents)

Responsiveness of the legal system

Sometimes changes to law lead to changes in community-accepted moral behaviour; sometimes they reflect social changes. The obligation to take responsibility for care and financial support of a child is considered one that should be met by both parents.

Views about men and women have expanded to accommodate a much wider range of roles for fathers and mothers. Many Australians believe fathers are equally capable of parenting, just as mothers are equally capable of fulfilling other aims of a satisfying and productive human life.

To ensure parents meet their responsibilities, the government has enacted numerous laws. Some trends arising since the $2006$ reforms suggest courts—and society—need to distinguish between families where shared care is desirable and those where overriding concerns exist. The most obvious legal response would be to change the law to distinguish between equal responsibility and equal time.

Conclusion

The emphasis on children's rights reflects the idea that children are vulnerable members of society requiring greater protection. All decisions must be in the best interest of the child, with the interests of parents or caregivers being secondary. While important to protect the child's right to maintain a quality relationship with both parents, the law must also ensure parental responsibility entails more than the child merely spending half their time with each parent.

Issue 3: Surrogacy and birth technologies

Birth technologies: definition and legal issues

Under common law, the mother of a child is the woman who gave birth to the child. The father is the man who acknowledges and accepts responsibility for the child or who is proved to be the father in court. Advances in birth technology mean it is no longer possible to presume the identity of biological parents.

Birth technologies include:

• Artificial insemination – donated sperm are artificially introduced into the vagina or uterus
• IVF (in-vitro fertilisation) – fertilisation occurs outside the uterus using sperm and ovum from parents or donors, with the resulting embryo implanted in a uterus
• Genetic manipulation – use of gene sharing or donated genetic material to alter a foetus in utero

Birth technology has created numerous legal issues concerning paternity, inheritance rights, and care and control of the child. The father of a child may not necessarily be the 'natural father'.

Presumption of paternity

The Status of Children Act created the concept of 'presumption of paternity', which is automatic and irrefutable if the couple are married or in a de facto relationship. Under this Act:

"When a woman becomes pregnant by using donor sperm from someone other than her husband, then that man is presumed not to be the father of the child born."

However, this presumption may be altered if the donor makes a written application signed by the mother and lodged with the Registry of Births, Deaths and Marriages. If paternity is disputed, the Act allows the father's identity to be determined by blood tests.

Surrogacy: definition and legal complexity

Surrogacy involves an agreement between a commissioning couple and a woman, where the woman agrees to bear a child for the commissioning couple and then give the baby to the couple when born.

Under the law, it is usually the woman who gives birth to the child—whether conceived naturally or artificially—who is the mother. Even if the birth mother uses both donor ova and donor sperm or a donated embryo to achieve pregnancy, she is still considered the legal and natural mother. The status of the natural mother as the birth mother can be found in:

• Status of Children Act 1996 (NSW)
• Family Law Act 1975 (Cth)
• Marriage Act 1961 (Cth)
• Common law

Laws relating to surrogacy differ between states and territories, creating inconsistency, uncertainty and conflict between state acts. In NSW, the law has recently been amended to provide special protections for biological and commissioning parents in surrogacy arrangements.

Legal and non-legal responses

Surrogacy raises complex social, emotional and parenting issues, including legal recognition of genetic parents. The law distinguishes between two types:

Commercial surrogacy – an agreement involving a fee or reward paid to the woman who gives birth, with transfer of custody and parental responsibility by adoption or agreement, treating the child as the child of another person.

Altruistic surrogacy – an arrangement where the surrogate receives no financial payment for pregnancy or transfer of the child, though commissioning parents may pay pregnancy and birth-related expenses.

Legal responses

Laws concerning surrogacy in Australia are state- or territory-based. Until recently, these laws were inconsistent and provided inadequate protections and guidance. Some jurisdictions prohibited both altruistic and commercial surrogacy, some allowed altruistic but prohibited commercial surrogacy, and some laws were silent on the issue.

In $2008$, the Standing Committee of Attorneys General agreed that a national model law regulating surrogacy is needed. In $2010$, the Committee released a draft of $15$ principles for a national surrogacy model, including:

• Informed consent of all parties is essential, along with specialist counselling
• Court orders should be available to recognise commissioning parents as legal parents if in the child's best interests
• Court orders should not be granted for commercial surrogacy
• All parties must consent to the order

Prior to recent reforms, in most NSW cases, the Status of Children Act 1996 (NSW) meant a child's legal parents were presumed to be the birth parents. This meant commissioning parents in a surrogacy arrangement, although in practice parenting the child, would not be recognised as parents and could face difficulties:

• Enrolling the child in school
• Accessing certain government benefits
• Applying for a passport for the child

Where a child is conceived in a stable relationship, the male partner is assumed to be the father even if not the biological parent. This would mean the child's biological father had no rights regarding his child. It was also illegal for the surrogate mother to 'give' her child to commissioning parents, as placing a child with a non-relative for more than $28$ days is illegal under the Children (Care and Protection) Act 1987 (NSW). However, if one commissioning parent was also the biological parent, this would be permitted.

The Surrogacy Act 2010 (NSW)

Under the new legislative framework, the Surrogacy Act 2010 (NSW) introduces a system of parentage orders, where parties can apply to the NSW Supreme Court for an order to transfer full legal parentage of the child from the birth parent in a surrogacy arrangement to the commissioning parent. The new parentage orders:

• Grant commissioning parents full legal capacity to make decisions in the child's interests
• Aim to provide relief and certainty for parties involved in surrogacy arrangements

Under the framework, commissioning parents must apply for a parentage order between $30$ days and six months after the child's birth. The first $30$ days operate as a cooling-off period for the birth mother to encourage careful consideration before consenting to grant of a parentage order.

The orders apply to de facto couples (including same-sex), but require that if two people enter into a surrogacy arrangement as intended parents, they must be a couple.

Other requirements of the new framework:

• An order can only be made if it is in the best interests of the child
• An order cannot be made in relation to commercial surrogacy
• Parties must obtain counselling and legal advice before entering into a surrogacy arrangement to ensure they fully understand the implications
• The arrangement must be in writing
• The birth mother must be at least $25$ years old before entering the arrangement
• The consent of the birth parents is required before an order can be made
• There must have been a 'medical or social need' for the arrangement

The framework also made amendments to other NSW legislation to ensure parentage orders and the child's status would be recognised in matters concerning wills, property, relationship registers, and other government entitlements.

Non-legal responses

Various organisations and lobby groups have opposed surrogacy on moral grounds, usually based on religious principles. These concerns centre on the concept of a traditional family, especially as surrogacy may provide an avenue for same-sex couples to have children. These lobby groups have expressed a desire that surrogacy be restricted to infertile heterosexual couples. They have claimed that families with parents of the same sex face difficulties ranging from problems accompanying a small child of the opposite sex to a public toilet to social stigma.

A slippery-slope argument has been employed. For example, the Australian Christian Lobby's $2009$ claim that surrogacy "would pave the way for two men or two women to 'order' a baby they are not even genetically connected to", also denying the child either a male or female parent and role model.

Responsiveness of the legal system

The federal government has been slow to pass laws relating to surrogacy issues and courts are constrained by existing legislation. Wide inconsistencies remain in surrogacy laws between states and territories. In NSW, previous laws were inadequate and people seeking to become parents under surrogacy arrangements were forced to deal with legal schemes not designed for surrogacy situations.

The new framework is an important development in increasing legal certainty for parties to a surrogacy arrangement because they are otherwise unable to have children, but also in protecting the interests of children born into surrogacy arrangements. The Surrogacy Act 2010 encourages parties to a surrogacy arrangement to take steps to thoroughly understand the psychological, social and legal complexity of their decisions and the impact on the child.

However, the framework denies legal recognition to children born under arrangements of commercial surrogacy, in NSW or overseas, and can see parties to such an arrangement criminalised. This may fail to reflect the increasing reality of such arrangements in Australia.

Conclusion

Advances in birth technology have created great need for law reform. When considering new laws in this area, both parliaments and courts need to address a multitude of conflicting ethical views. The rapid development of birth technology has challenged long-standing moral and legal conceptions of 'family' and 'parent'. Prior to IVF, the woman who gave birth and her husband or partner were the child's parents. However, the legal definition of 'parent' has now been extended to meet the challenges of new family arrangements and technological advances.

Issue 4: Care and protection of children

Background

All states and territories, together with the Commonwealth government, have passed laws regarding family violence, child abuse and child neglect. The focus of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is safeguarding the health and well-being of children, including:

• Protecting them from violence or abuse
• Provisions for mandatory reporting of concerns to Community Services, where a teacher, doctor, nurse or other professional believes there to be a risk of harm from family violence or abuse

The amendments to the Family Law Act 1975 (Cth) by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), which aimed to ensure children have a meaningful relationship with both parents, require the court to consider the child's best interests rather than parental interests. But the amendments have been criticised on the basis that there is greater potential for a child to be exposed to family violence.

Legal and non-legal responses

The Family Law Act 1975 (Cth) defines 'family violence' as any action or threat of violence by one family member against another, including witnessing that action or threat, that causes fear or apprehension about personal safety. The $2006$ amendments to the Family Law Act 1975 (Cth) endeavoured to ensure children are protected from both direct harm and from harm resulting from exposure to family violence. The presumption of equal shared parental responsibility does not apply if there is a risk of child abuse or family violence.

Legal responses

If there is evidence of family violence, the court may order that the child's contact with the offending parent is restricted or that contact takes place within a controlled environment, such as with a social worker present. In this instance, the concept of 'shared parental responsibility' does not apply.

In cases where there is evidence that family violence has occurred, family dispute resolution may be inappropriate. The court will hear cases that raise family violence issues quickly so it can take appropriate action to protect vulnerable family members.

The Family Court can order relevant state and territory agencies to provide information regarding allegations of family violence. Under s $117$AB of the Family Law Act, the court can also order a person to pay some or all of the costs of another party to the proceedings if satisfied that the person knowingly provided false information, including false allegations of family violence.

When Community Services NSW receives a 'risk of harm' report involving allegations of physical or sexual abuse, neglect or other criminal conduct regarding a child, a caseworker makes an assessment to determine the extent of the risk. Almost two-thirds of all reports are referred to community services centres or Joint Investigation Response Team (JIRT) for further assessment and investigation.

JIRT members include:

• Community Services representatives
• Police
• Representatives from NSW Department of Health

Once a report has been made, the response team will speak to the young victim and act to protect the child if the child is in immediate danger. If police decide there is evidence of a crime, the suspect will be charged, the child will be assigned a caseworker, and the child will receive medical attention if needed. The response teams were established to:

• Improve interagency collaboration between NSW Health, police and Community Services
• Provide counselling and trauma support for victims

Reporting reduces the amount of administrative work for a caseworker, reducing the call load on Helpline and allowing caseworkers to focus on assessment. During $2008$, Community Services Helpline received approximately $300,000$ calls.

Non-legal responses

Churches and organisations such as the Salvation Army have traditionally provided extensive support and educational services to children in need. These services include:

• Child care centres
• Counselling services (e.g. addiction and bereavement)
• Emergency housing and youth support programs

Although these groups have provided necessary help and support to children and families in crisis, some groups have been heavily criticised for their lack of action in dealing with accusations of child abuse made against their own members.

Responses by religious organisations:

In $2002$, the Anglican Church established a Professional Standards Unit that investigates complaints involving clergy and ancillary staff. The church made a public apology for clergy and staff misconduct and reaffirmed the church's condemnation of such behaviours.

In $1996$, the Catholic Church established the Melbourne Response to investigate claims of clergy abusing young children.

Victims of abuse have been encouraged to contact relevant church authorities to lodge complaints. All major religious bodies with contact with children and young people have established:

• Internal procedures for investigating abuse claims
• Counselling services for abuse victims
• Compensation funds to pay future claims made by victims

Support initiatives for families and children in crisis:

• Child Abuse Prevention Service (CAPS) – aims to alleviate child abuse by educating the community about child abuse issues and providing counselling and ongoing support for victims and perpetrators
• Child Protection and Family Crisis Service – provides $24$-hour telephone counselling
• The Benevolent Society – offers programs supporting families to overcome stresses leading to abuse and neglect; services include counselling, home visits, access to child health professionals, play groups, social groups for parents, art therapy, and links to local services
• Parenting NSW – a state government initiative aiming to make parenting easier by helping parents become better parents
• Various local municipal councils also offer programs providing help and support for children and young persons

Responsiveness of the legal system

Criticisms of child protection in NSW have been made against Community Services, police, courts and community groups. A review of the NSW child protection system began in $2006$. A new Children's Commissioner was established to monitor state programs to eradicate child abuse and strengthen existing child protection. The review also proposed that a national framework for child protection should be established. Presently no such framework exists.

The legal system has been accused of acting too slowly to protect child victims of abuse and that existing mechanisms to protect children are inadequate. An increasing number of persons under $18$ have been placed on care and protection orders. According to the Australian Institute of Health and Welfare's report A Picture of Australia's Children 2009, more than $25,000$ children were placed on care and protection orders, representing an increase of $88\%$ since $2000$.

While some argue this indicates that people, once aware of their rights, will seek ADVOs to protect themselves and their children from actual harm, it also indicates that support and counselling services provided to perpetrators have been less than successful in encouraging them to modify their abusive behaviours.

The federal government has recognised child abuse and neglect as a major issue and is seeking to create a national framework for protecting children. This will necessitate:

• Coordination of government and non-government organisations
• Creation of uniform child protection laws
• Focus on early intervention and prevention strategies to protect children from abuse and reduce the harmful effects abuse has on children

Conclusion

Children are considered vulnerable members of society and therefore deserving of greater levels of protection. The legal system has responded by strengthening legislation surrounding care and protection of children. Neglect and abuse of children are now considered serious crimes and parents found guilty of such crimes can ultimately be charged with murder if their child dies in their care.

Remember!