Responses to Problems in Family Relationships (HSC SSCE Legal Studies): Revision Notes

Responses to Problems in Family Relationships

When family relationships break down, the law provides various mechanisms to address the resulting issues. These responses include divorce procedures, property settlements, protection from domestic violence, and dispute resolution processes. The legal framework aims to protect vulnerable family members while providing fair and accessible pathways for resolving family disputes.

Divorce

What is divorce?

Divorce is the legal ending of a marriage through an official court decision. Under $s$ $48$ of the Family Law Act 1975 (Cth), there is only one ground for divorce in Australia: irretrievable breakdown of the marriage. This means the relationship has broken down with little chance of reconciliation.

Historical context: the shift from fault to no-fault divorce

Requirements for divorce

To prove irretrievable breakdown, couples must demonstrate they have been living separately and apart for $12$ months. Key points about this requirement include:

• The separation begins when one party informs the other of their intention to end the marriage
• Only one party needs to want the divorce—the law will not force someone to remain in an unwanted relationship
• Couples can be considered "separated" even while living under the same roof, provided they can show they lead separate lives (separate bedrooms, no shared meals, no socialising together, separate finances)

Reconciliation attempts

The Act encourages reconciliation through several provisions:

• Section $50$ (the "kiss and make up clause"): allows one reconciliation period of up to $3$ months during separation without restarting the $12$-month clock
• If reconciliation fails, the time before and after the attempt counts toward the required $12$ months
• Couples married less than $2$ years must attend compulsory family counselling before divorcing
• Courts can order marriage counselling if they believe reconciliation is possible

The divorce process

Once the $12$-month separation period is complete and all matters involving children are resolved, the court issues a decree nisi, which begins the divorce process. Approximately one month later, this becomes a decree absolute, at which point the marriage is legally dissolved and both parties are free to remarry.

Legal Consequences of Separation

Matters involving children

Parental responsibility over parental rights

The law's focus has shifted from "parental rights" to parental responsibility. This emphasises that parents have ongoing obligations toward their children, regardless of where the child lives. The presumption is that equal shared parental responsibility serves the child's best interests.

Parental responsibility only ends when:

• A court order removes it
• The child is adopted
• The child turns $18$
• The child marries

Best interests of the child

Under Part VII of the Family Law Act 1975 (Cth), all disputes about children must be decided according to the child's best interests. Section $60$CC sets out how courts determine this through:

Primary considerations:

• The child's right to maintain a meaningful relationship with both parents
• The need to protect the child from harm

Additional considerations:

• The child's views
• The nature of the child's relationship with each parent
• Where each parent lives
• Each parent's ability to meet the child's needs
• The effect of any proposed changes on the child
• The child's cultural connections

When equal shared responsibility doesn't apply

The $2006$ amendments introducing shared parental responsibility (through the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)) have faced criticism for:

• Not adequately dealing with family violence situations
• Potentially exposing children to further abuse
• Treating allegations of violence with suspicion (provisions for cost orders against false allegations)
• Not giving sufficient weight to children's views
• Creating confusion between "shared parental responsibility" and "$50$-$50$ custody"

Parenting arrangements

Separating parents must:

1. Attend compulsory family dispute resolution
2. Enter into a parenting plan covering:
   • Whether children can spend equal time with both parents
   • Contact with other family members
   • Day-to-day care arrangements
   • Maintenance of cultural links

Property matters

What constitutes property?

The Family Law Act 1975 (Cth) uses a broad definition of property, including:

• Homes and real estate
• Bank accounts
• Companies and partnerships
• Shares
• Superannuation
• Household goods

All property acquired during the marriage is considered matrimonial property.

Property allocation principles

When determining property division under sections $75$ and $79$ (or sections $90$SF$3$ and $90$SM$4$ for de facto couples), courts consider:

• Financial and non-financial contributions by both parties, including:

  • Direct financial contributions (income, inheritance)
  • Homemaker contributions
  • Carer contributions for children
  • Work in family business
  • Acquisition, conservation, and improvement of assets

• Future factors:

  • Effect of property division on each party's earning capacity
  • Age of both parties
  • Income, property, and financial resources of each party
  • Whether either party has care and control of children under $18$

Important points about property division

Formalising property agreements

If separating couples reach an agreement, they can:

• Apply for consent orders from the Family Court
• The court will make these legally binding if the division is fair and equitable

If couples cannot agree, the court can:

• Order attendance at a conference for mediation
• Make orders about property allocation if mediation fails

Financial agreements

Financial agreements allow couples to protect property rights by establishing guidelines for division of property, debt, and financial matters. These can be made:

• Before marriage (formerly "pre-nuptial agreements")
• During marriage
• At the end of marriage

They may cover:

• What property is included or excluded from settlement
• How property will be divided
• Who owns what property
• Spousal maintenance provisions

Case example: C and M [$2006$] FamCA $212$

Legal Responses to Domestic Violence

Defining domestic violence

According to section $11$ of the *Crimes (Domestic and Personal Violence) Act 2007$ (NSW), domestic violence is personal violence committed against someone with whom the offender has, or has had, a domestic relationship (marriage, de facto relationship, or other close personal relationship such as parent-child).

Domestic violence includes:

• Physical abuse
• Verbal abuse
• Emotional abuse
• Financial abuse
• Psychological abuse
• Sexual abuse
• Social isolation
• Actual or threatened violence
• Harassment

Recognising domestic violence as a community issue

Causes of family problems

Problems in family relationships can stem from various sources:

Psychological problems:

• Lack of self-esteem and poor self-image
• Inability to express anger or frustration appropriately
• Strong desire to control or dominate others
• Cycle of violence (abused children becoming abusing adults)
• Mental illness, including depression
• Lack of positive role models

Social problems:

• Drug dependency (alcohol, prescription drugs, illegal substances)
• Disputes over housework and domestic duties
• Disputes over child discipline
• Lack of quality family time
• Cultural or geographic isolation

Financial problems:

• Lack of money (unemployment, low-paid work, part-time work)
• Disputes over spending limited money
• Expectation that children will contribute financially
• Inadequate childcare funding

Violence between spouses

Statistics and patterns

Risk factors for women:

• $82$% of assaulted women knew the offender
• $64$% of violence occurred in the home
• One-third of physical assaults committed by spouse or partner
• Nearly half of assaulted women experience repeated attacks

Legal protections available

Apprehended Domestic Violence Orders (ADVOs)

An ADVO is a court order that aims to protect the applicant from violence and other forms of intimidation or abuse by a family member. Key features:

• Victims can apply to the Local Court for an ADVO
• Alternatively, can apply to Family Court for an injunction (court order directing or prohibiting specific actions), though these are more complex and harder to enforce locally
• Issuing an ADVO does not mean the person is charged with a criminal offence
• If the person breaches (fails to obey) the order, they may be charged with a criminal offence

Contact vetoes and information registers

For situations where parties want to prevent or control contact:

• Parties can lodge a contact veto to prevent unwanted contact
• Contact details can be placed on the Advance Notice Register to notify parties if information applications are made
• Even with a contact veto, information may be released if the seeking party signs an undertaking not to make contact
• Breaching a contact veto may result in fines and/or imprisonment

Violence involving children

Violence against children

The UN Convention on the Rights of the Child (Article $19$) declares no child should be subjected to violence. The state has responsibility to protect children from all forms of:

• Physical or mental violence
• Neglect or negligent treatment
• Maltreatment or exploitation
• Sexual abuse

Legislative protection:

The Children and Young Persons (Care and Protection) Act 1998 (NSW) covers abuse and neglect. Section $227$ specifically prohibits intentional acts resulting or likely to result in:

• Physical injury or sexual abuse
• Emotional or psychological harm
• Harm to health or physical development

ADVOs for children:

Mandatory reporting:

Certain professionals must report suspected child harm to Community Services (sections $24$-$27$):

• Teachers
• Doctors
• School counsellors
• Anyone who works with children

Community Services is legally required to investigate reported cases.

Possible outcomes after notification:

• ADVO made if abuse threatened or actual
• Police can charge the accused
• Family Court can restrict offender's contact with at-risk children
• Community Services can apply for care and protection orders, including child removal
• Less serious cases referred to Child Wellbeing Units in NSW Health, Police, Education and Training, and Human Services departments for assessment and support

Violence by children

The law treats child offenders differently, reflecting the UN Convention on the Rights of the Child principle that all decisions should be in the child's best interests.

Criminal responsibility:

The Children (Criminal Proceedings) Act 1987 (NSW) section $5$ establishes:

• Children under $10$ years cannot be guilty of a criminal offence (considered unable to understand consequences)
• Children aged $10$-$14$ are presumed incapable of committing crime—prosecution must rebut this presumption by proving:
  • The child did the alleged act
  • The child knew it was wrong

Young Offenders Act 1997 (NSW):

This Act provides alternatives to court proceedings. Section $3$ sets out objectives:

(a) Establish alternative processes to court through youth justice conferences, cautions, and warnings

(b) Provide efficient and direct responses to children's offences

(c) Use youth justice conferences to:

• Enable community-based negotiated responses involving all affected parties
• Emphasise restitution and offender responsibility
• Meet needs of victims and offenders

(d) Address over-representation of Aboriginal and Torres Strait Islander children through conferences, cautions, and warnings

Effectiveness of legal protections

Strengths:

• Increased community awareness through education campaigns
• Recognition that domestic violence is not a "private matter"
• Legislative reforms reflect changing attitudes
• ADVOs provide quick, inexpensive, accessible protection backed by criminal law
• Laws have evolved in response to community pressure and specific incidents

Examples of legal evolution:

Limitations:

• ADVOs may only deter law-abiding individuals, not persistent offenders
• Protection orders only effective if properly policed
• Some states have mandatory counselling for perpetrators, but NSW has not—little evidence supporting effectiveness
• Allegations that ADVOs are too easy to obtain and subject to false claims in parenting disputes (though little evidence supports this)

Methods of Resolving Disputes

Family dispute resolution

Definition: Section $10$F of the Family Law Act 1975 (Cth) defines family dispute resolution as a non-judicial process where an independent practitioner helps people affected by separation or divorce resolve disputes.

Requirement to attempt resolution

Section $60$I requires couples with disputes about matters that may be dealt with by court orders under Part VII (involving children) to make a genuine effort to resolve disputes using family dispute resolution before applying for court orders.

Where to access services

• Family Relationship Centres: Government-funded community centres assisting couples and families at all relationship stages
• Private providers: Couples can choose private counselling services
• Court referrals: Family Court and Federal Magistrates' Court can refer parties to counselling services for adults and children
• Court-ordered attendance: Courts can order separating couples to attend dispute resolution

Costs: Individuals pay for services, but some costs may be subsidised depending on financial circumstances.

Types of dispute resolution services

Reconciliation counselling:

• For separating couples attempting to reconcile
• Focuses on repairing the relationship

Post-separation parenting programs:

• For couples whose issues affect parenting responsibilities
• Usually includes:
  • Family counselling
  • Group lectures and discussions
  • Techniques for resolving disputes

Mediation:

• For separating couples who have made Family Court applications
• Neutral, impartial third party (mediator) helps parties:
  • Identify issues
  • Formulate options
  • Consider alternatives
  • Reach agreement
• May be used before court hearing

Individualised counselling for children:

Benefits of family dispute resolution

• Couples more likely to comply with agreements they helped create
• Parties learn skills like better communication
• May minimise future conflicts
• Less costly than court proceedings (time and money)
• Less stressful for all parties

Finalising agreements

Once agreement is reached:

• Separating parents enter into parenting plan OR
• File consent orders with court
• All matters relating to children must be finalised before divorce is granted

If parties fail to reach agreement or issues of abuse/family violence exist, matter will be heard by court.

Adjudication

Adjudication is the determination of a matter by court judgment or ruling.

Court jurisdiction

The Federal Magistrates' Court and Family Court can make decisions regarding:

• Division of property
• Maintenance
• Any decisions affecting children

Divorce is automatic if parties show:

• Irretrievable breakdown of marriage
• Required separation period completed

This occurs only after all counselling and family dispute resolution processes are exhausted.

Court orders vs. parenting plans

Online applications

Individuals can now:

• File divorce applications online through Family Law Courts portal (www.familylawcourts.gov.au)
• Pay small administrative fee
• Fee may be waived for those with government concession cards or experiencing financial hardship

The Role of Courts in Family Law Matters

The law aims to:

• Protect family members' rights
• Ensure individuals meet family obligations
• Provide structures and processes for amicable resolution

The Family Court focuses on reconciliation and encouraging compliance rather than arbitration and sanctions/coercion.

Family Court of Australia and Federal Magistrates' Court

Historical development

Family Court jurisdiction

Limited to areas controlled by Family Law Act 1975 (Cth):

• Property and financial matters
• Maintenance
• Parenting arrangements
• Cannot hear: adoption, nullity, or marriage validity matters

Federal Magistrates' Court

Established in late $1999$ to:

• Relieve case load of Federal Court and Family Court
• Reduce cost and time for some federal matters

Similar jurisdiction to Family Court:

• Can hear matters relating to divorce
• Division of property
• Children matters

Cannot hear:

• Adoption matters
• Applications concerning nullity (marriage didn't exist)
• Marriage validity matters

Division of cases

Federal Magistrates' Court handles:

• Majority of divorce applications
• Standard family law matters

Family Court handles:

• More complex issues involving:
  • Multiple parents
  • Interstate moves or emigration intentions
  • Serious allegations of family violence or child abuse (Magellan cases)

State courts handle:

• Adoption
• Inheritance and wills

Best interests paramount

Jurisdiction over children

Initially, Family Court jurisdiction didn't extend to ex-nuptial children due to Commonwealth constitutional power limitations (only covered marriage, divorce, and matrimonial causes).

1986 referral:

• All states except Western Australia referred power regarding children matters to Commonwealth
• Through Acts including Commonwealth Powers (Family Law – Children) Act 1986 (NSW)
• Now all matters relating to child care and maintenance heard in Family Court
• Same federal provisions cover all children

Property and maintenance jurisdiction

Family Court and Federal Magistrates' Court have power to determine:

• Division of property for married and de facto couples
• Maintenance for married and de facto couples

The Children's Court

Structure and administration

The Children's Court is a state court with:

• Six permanent Children's Courts in NSW
• Children's Magistrates conducting hearings in other locations
• President who heads the court and chairs Children's Court Advisory Committee (advises on rules, practice, procedure)

Legal representation:

• Children's Legal Service (operates through Legal Aid NSW)
• Provides representation for children and young people in:
  • Criminal cases
  • Child welfare cases

Care and protection jurisdiction

Hears cases under Children and Young Persons (Care and Protection) Act 1998 (NSW), usually brought by:

Community Services: Division of NSW Department of Human Services responsible for:

• Keeping children and young people safe from harm
• Supporting families of children and young people

Court procedures

Care and protection orders

If court finds child needs care, it can make various orders (short-term or long-term):

• Supervision orders: Community Services supervises parents to ensure they fulfil parental responsibility
• Out-of-home placement: Child placed with relative, foster family, or other appropriate adult
• Parental control removed: If child placed elsewhere, parents no longer have control
• Contact visits: May be permitted (closely supervised and regulated) to maintain parent-child relationship
• Support services: May include educational, psychological, and welfare services for parents and children

Orders cease when child turns $18$.

Criminal jurisdiction

Children's Court also covers crimes committed by persons under $18$ at time of alleged offence.

The Role of Non-Government Organisations

Numerous non-government organisations support families and individuals struggling with personal relationships and family issues.

Religious organisations

Many better-known organisations are operated by religious groups or churches:

• Salvation Army
• Centacare (Catholic)
• Anglicare (Anglican)

Non-religious organisations

• Relationships Australia
• The Smith Family

Services provided

• Mentoring
• Support for new parents
• Counselling and relationship advice
• Assistance with managing conflict
• Dealing with family violence
• Emotional support for children of separating parents
• Mediation
• Advice on creating parenting plans

Funding challenges

The Role of the Media

Embracing new technologies

The media landscape has changed dramatically with new communication technologies. The Family Law Courts have embraced these changes by:

• Placing resources on their website:
  • Self-help guides
  • Brochures and forms
  • Links to other sites
• Establishing National Enquiry Centre to answer:
  • Telephone enquiries
  • E-mail enquiries about court procedures and individual cases
  • Providing referrals to legal advice and other services
  • Distributing forms and publications

Balancing information and privacy

Courts effectively use media technologies to:

• Provide better information about family law rights and obligations
• Offer additional support services
• Protect privacy of individuals affected by relationship breakdown
• Restrict media publication of court proceedings