Legal Studies Essays

Assessment Task 3 - NESA#: 29523843

Essay Summary

Question Assess the ability of the law in resolving conflict and encouraging
cooperation during divorce and other aspects of family law.

Essay Summary

Question Compare and contrast the legal consequences and responsibilities of

marriage with those of ONE alternative family arrangement.

Essay Summary

Question Evaluate the effectiveness of the law in achieving justice for parties
involved in relationship breakdown.

Essay Summary

Question Assess the effectiveness of the law in meeting the care and protection
needs of children.
The law has created numerous opportunities for divorcing couples to resolve conflict, often
without the need for courts, arbitrators, or mediators. The Family Law Act 1975 (Cwth) reformed
divorce law with the introduction of a no-fault divorce this resulted in neither party being
blamed for the breakdown of a marriage, which would have caused numerous arguments and
resentment. The Family Law Act also has provisions that make marriage counselling mandatory
for new marriages (less than 2 years in length), which may help some couples resolve conflict
and begin to cooperate, however this has some issues as many couples do not appreciate being
forced to undergo counselling. The Howard Government introduced Family Relationship
Centres which provide free services such as dispute resolution and counselling. These
contribute to the belief of Government that the law must make a divorce process as conflict
free, especially when children are involved. The Law values the future lives of children and
aims to protect them best, often this results in custody disputes between parents. The law
states that the children should not be excluded from either one parent, rather they should have
both parents existing in their lives in a meaningful way, except of course, when violence is an
issue and the child must be protected. The best interests of the child can sometimes result in
courts having to take action. This is seen in the Family Court case Harris v. Harris, in which the
court acknowledged that both parents were capable of caring for the child equally, but chose to
side with the mothers school choice. This resulted in the child living a significant distance
away from the father, and to counter this the court decided that 2 of every 3 weekends must be
spent with the father. This compromise through the court system shows the extent to which the
law aims to protect all parties in a divorce, but especially the children. During a divorce, tension
between the couple may eventuate in domestic violence, this begun to be formally recognised
in the 1990s and more extensive use of Apprehended Domestic Violence Orders (ADVOs) was
used in an attempt to curb this. Eventually, a 1995 amendment to the Family Law Act required
judges to recognise violence and its impact on the child when considering custody and this
often resulted in handovers of the child forcibly happening in public places, or even police
stations to ensure no conflicts will arise. Another amendment to the Family Law Act aimed to
further move people away from the congested courts to alternative dispute resolution
mechanisms. While this made the courts less congested, it also had the flow on effect of
ensuring that couples resolve disputes for themselves and move forward, though this doesnt
apply to all couples as some are not prepared to attend freely, and this casts a negative tone on
negotiations. The Law is very effective at both resolving conflicts for divorcees and
encouraging cooperation between couples, both to help couples resolve issues and relieve
pressure from the legal system.

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Essay Summary
 Question Compare and contrast the legal consequences and responsibilities of
marriage with those of ONE alternative family arrangement.

The legal consequences and responsibilities of marriage and de facto relationships differ due to
the nature of each arrangement. While marriage, legislatively speaking, is between a man and a
woman and entered into voluntarily for life (Hyde v. Hyde and Woodmansee [1866], Marriage
Act (1961) and the Amendment Act 2004 (Cwlth)), a de facto relationship is simply a bona fide
domestic relationship between two people that has existed for more than two years. Marriages
have numerous legal consequences such as property rights being shared between the two
parties of a marriage, and the idea of consortium vitae. These consequences lead to many
disputes during divorces over who owns what items, especially real estate and financial assets
as well as who is to blame for a divorce occurring, although this is less of an issue since the
Family Law Act (1975), which created provisions for a no fault divorce.
This also exists in de facto relationships but to a lesser extent in that laws regarding property
are not as extensive as the laws for marriage are, as well as the fact that they are managed by
the state, not the federal government and because of that they can vary between states.
Perhaps the most contentious issue in modern Australia is that of same-sex relationships,
permissible under a de facto relationship, but not under a formal marriage. This has caused
numerous legal challenges including the Australian Capital Territory temporarily allowing
same-sex marriages until the High Court of Australia struck down that law in December 2013,
since the federal law prevailed, legally speaking (ABC Article, Dec 2013). Overwhelmingly,
formal marriages have more legal consequences and responsibilities due to their heightened
recognition from the federal government. As mentioned earlier, these include consortium vitae
and property rights as well as maintenance and agency, both relating to spouses being
financially obligated to each other. No such requirements exist in a de facto relationship, with
the exception of property rights as detailed in Property (Relationships) Act 1984 (NSW).
applications can be made to the courts in order to settle disputes over how the property is to be
distributed, which takes into account the duration of the partnership as well as the value of any
assets. Both de facto relationships and marriages both have the same obligations in terms of
children, adopted or otherwise. This is seen in both the Adoption Act 2000 (NSW) and Family
Law Act. Both family arrangements have to care for the child and act in the childs best
interests regardless of circumstance. This is perhaps the most similar aspect of the two
arrangements as once a child is legally in a family, all laws regarding children apply equally to
both.
The legal consequences as well as the responsibilities of the two parties in a de facto
relationships differ to those that apply to a married couple. This can be attributed to many
different causes, but most notably it is due to the fact that de facto relationships are legislated
by the NSW government while marriages are legislated for at the federal level, and the
differences arise out of the different motives underpinning both governments.

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 Essay Summary

Question Evaluate the effectiveness of the law in achieving justice for parties
involved in relationship breakdown.

The law is extremely effective at achieving justice for both parties when a relationship breaks
down. This can be clearly seen with the fact that 95% of cases are settled out of court, without
issue, due to the rise of Family Relationship Centres (FRCs) since their introduction in 2006.
This was a clear motive behind the federal government's decision to introduce these centres as
they not only remove stress from the court system but they also ensure a fair and equitable
outcome in a non-adversarial setting, unlike a court room which is specifically designed to be
adversarial. Since the Family Law Reform Act (1995), there has been a much heavier emphasis
on using alternate dispute resolution techniques such as mediation, counselling and eventually
arbitration. This emphasis has overwhelmingly led to more equitable outcomes as the two
parties are directly involved in dividing up any disputed property and custody issues. The law
dictates that couples must first seek out counselling before any other action can be taken, and
courts, as a general rule, do not issue parenting orders unless this has taken place first, further
showing the heightened emphasis on resolving issues out of court. Should counselling not
resolve issues, mediation is then used, where a neutral third party is involved. This neutral third
party can often assist in resolving conflicts and moving both parties on even in cases of
domestic violence (ABC News, Apr 2017). Should neither of these work, ex-couples will then
approach the courts who will ultimately make a decision on the division of property. These
processes all have the aim of ensuring that both parties of a broken down relationship are fairly
and equitably treated. The legal system values children above all other parties in a relationship
and the courts will not begin divorce proceedings (they will not issue a degree nisi) until the
court is satisfied that the care of the child is taken care of beforehand. Despite the separation,
both parents are still responsible for the childs well being, and this wont change unless the
child is adopted or other such circumstances. The two primary considerations of the courts
regarding children is that the child has a right to maintain meaningful relationships with both
parents and that the child must be protected from harm, these two considerations often
influence other decisions of the court in splitting up of property, as where the child will live,
and with whom the child will live is also taken into account. When a child is involved, it is
possible that one or more of the parties will not achieve the most equitable income, however
this is done in the best interest of the child and as such, justice is achieved in the long term.
The legal system has numerous provisions that attempt to provide the most equitable and just
outcome for all parties involved when a relationship breaks down, while children do have a
higher value associated with them, all parties are still treated fairly. The law is extremely
effective at achieving just outcomes.

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 Essay Summary

Question Assess the effectiveness of the law in meeting the care and protection
needs of children.

Australian law effectively protects children from harm as well as aiming to meet all the needs
of children. This idea is enshrined in both the Family Law Act (1975) and the International
Covenant on Civil and Political Rights since they both define family as the natural and
fundamental group unit of society, especially in relation to the upbringing of children. The fact
that both the international community as well as the Australian Government indicates how
strongly held the belief that children must be protected during their upbringing is. The family
as a whole is responsible for this upbringing and it is the responsibility of parents to act as role
models for their children, ensuring a well rounded view of society. Parents are obligated under
law to ensure that their children receive basic needs such as food, clothing, shelter, and
education and this extends even beyond a marriage has broken down, as seen in the case of
Campbell v. Campbell [1988] when it was decided that the children had a right to continue
their private school education despite the breakdown in the marriage. As children are
particularly vulnerable, the law makes special considerations in regards to them, this includes
governments in recent times recognising the extra protection children need such as the signing
of the Convention on the Rights of the Child (1989) (CROC). The CROC is now incorporated into
Australian law and it ensures the the best interests of the child are fully considered for all
legislation and legal decisions.
It is generally recognised that while as a family unit, children are protected and cared for,
however, during a separation or divorce it is often the case that children are somewhat
neglected. From the early 1990s and onwards judges begun to recognise this and implemented
measures in the judicial decisions that protected children such as ensuring that children are
protected from physical or psychological harm and from being exposed to abuse, neglect, or
other forms of family violence. Harris v. Harris 2009 was a case where the federal magistrates
court considered these factors and determined that when parenting orders are made, while
equal responsibility for the child is important, the most important factor is the safety and the
future prosperity of the child. This exercise of judicial discretion is crucial to maintaining the
level of protection children need.
Issues of domestic violence have also become more recognised in recent times with the Crimes
(Domestic Violence) Amendment Act 1982 (NSW) and introduction of Apprehended Domestic
Violence Orders (ADVOs). These primarily seek to protect women and children with the
adoption of more pro-arrest strategies that favour arresting a suspect sooner so as to protect
the remaining family members. Finally, the Children (Care and Protection) Act 1987 (NSW)
protects children by obligating people in positions of care over children (i.e. teachers and
doctors) to report possible cases of neglect or abuse to the NSW Community Services Office
who will then investigate and take action if necessary.
The Australian legal system is extremely effective in meeting both the care and protection
needs of children, ensuring that the future of Australia have every opportunity possible

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