Law 4177
Introduction to Family Law
Topic 1: The Family Trends in family law:
• Marriage no longer the foundation of the family
• Recognition of committed relationships
• Importance of international treaties – Convention on the Rights of the Child, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights
• From discretion to presumptions
• Public v private dichotomy
• Move from adversarial to conciliatory Legislation:
• Federal:
- Family Law Act 1975 (Cth) - Child Support Legislation
• State:
- Assisted Reproductive Treatment Act 2008 (Vic) - Status of Children Act 1974 (Vic)
Guiding principles – S.43 Family Law Act
• The need to preserve the institution of marriage as the union of a man and a woman to the exclusion of all others voluntary entered into for life
• The need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children
• The need to protect the rights of children and to promote their welfare
• The need to ensure safety from family violence
• The means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children
S.43 Family Law Act
Principles to be applied by courts:
1. The family court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
b) The need to give the widest possible protection and
assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children
Family types (2011 ABS data):
• Couple families: 82%
• One parent families: 16%
• Other families: 2%
The Family an Australian focus: Aspin 1987
• At least 2 members, comprising either of 2 adults or 1 adult and 1 child; or if one adult lives apart from the family group but regards the group as his or her family
• The members are related to each other through marriage, blood ties, adoption or interaction
• The members hold certain positions and undertake certain roles Definition of family (Morris P YZ v Infertility Treatment 2006)
• Family will nearly always include the child’s mother
• It may include other children of the mother
• It may include the mother’s husband or partner, whether a man or a woman
• It may include children of the husband or the partner who care not also children of the mother
• It may include adopted children
• It will usually include the parents of the mother and the parents of the mother’s husband or partner
• It may include uncles, aunts or cousins
• The notion of “family” does not have defined outer edges
• It does not even require some blood relationship with the person whose family is under consideration
McBain per Sundberg J
• Facts
- McBain approached by a single woman wanting to be inseminated through IVF
- McBain argued that the Victorian legislation was inconsistent with the Sex Discrimination Act
• Held
- McBain was successful
Infertility Treatment Act 1995 (Vic) – S.8 (Repealed) Persons who may undergo treatment procedures
1. A woman who undergoes a treatment procedure must –
a) Be married and living with her husband on a genuine domestic basis;
or
b) Be living with a man in a de facto relationship 2. Before a woman undergoes a treatment procedure –
a) A doctor must be satisfied, on reasonable grounds, from an examination or from treatment he or she has carried out that the woman is unlikely to become pregnant from an oocyte produced by her and sperm produced by her husband than by a treatment procedure
- Found that the Victorian legislation requiring women to be married to undergo IVF was inconsistent with s.22 of the Sex Discrimination Act
Assisted Reproductive Technology Act 2008 (Vic) S.9 – Recognises self-insemination
S.10 – Who may undergo treatment?
1. Woman and her partner if any consent
2. Doctor satisfied on reasonable grounds that woman unlikely to become pregnant
