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HSC Legal Studies: Family Law Essay
Hey everyone :)
This was my essay for the HSC Legal Studies Option topic: family law. Again, it was a band 6! Hope it helps,
'Society moves ahead and the law limps behind.’ Discuss this statement referring to contemporary issues concerning family law.
Family law is the body of law pertaining to marriage and matrimonial issues. Its main aim is to protect each member of a family, whether that family is nuclear, de facto, single parent, Aboriginal or Torres Strait Islander or blended in nature, as family is the foundation of society. It can be argued that as society progresses in an ever developing world, the law continues to languish behind society’s changing values in regards to the recognition of same-sex relationships, surrogacy and birth technologies and the changing nature of parental responsibility. Although this argument is not true in all circumstances, it is a prominent issue which legislators face, as they are the ones who are required to ensure that the law is reflective of contemporary values.
The legal recognition of same-sex relationships in Australia has evolved dramatically since the 1980s to a point where most jurisdictions provide same-sex couples with the same rights and obligations as heterosexual de facto couples. The recognition of homosexual peoples was first reflected in 1982 through the insertion of Part 4C into the Anti-Discrimination Act (NSW). At the federal level, the 1984 Federal Sex-Discrimination Act (Cth) was enacted. Demographically, Australia is continuously developing into a more secular society, resulting in the waning influence of the Christian Church on the political front. Nevertheless, the 2004 Amendment to the 1961 Federal Marriage Act, which defined marriage as the legal union between a man and a woman”, was described by many as “enshrining the institution of marriage”, and is only reflective of the views held by the more conservative and religious members of society. To this day, the legal definition of marriage remains unreflective of society’s progressive views, resulting in the law languishing behind.
Furthermore, the refusal to enact the Same-Sex Marriage Bill which was introduced by the Greens in 2005 means that Australia is not responding to its international obligations. As a signatory to the ICCPR, it is the duty of law makers to ensure that all aspects of this covenant are adequately enshrined in domestic law in order for it to be recognised in Australia. Article 26 of the ICCPR states that “all persons are not to be discriminated under the law” regardless of their sexuality. Supporters for marriage equality argue that in an increasingly agnostic society, marriage is less about religion and more about the legal protection it affords, meaning that Australia is not responding to its international duties. Opponents, however, argue that the covenant is not legally binding on Australia; therefore there is no need to enshrine marriage equality into law. This exemplifies the idea that while international covenants highlight international perceptions of equality and fairness; they are ineffective ensuring that all rights of individuals are upheld in the law of its signatory nations. This is because signatory nations may choose not to implement all terms of the covenant into their domestic law. This further demonstrates that while society moves ahead, Australian law continues to languish as current legislation does not reflect the international community and society’s evolving values in the area of marriage equality.
Technology has and continues to evolve at an exponential rate; however laws governing the use of such technologies in some areas are failing to keep pace. This is apparent in the area of surrogacy and birth technologies, as developments in technology which have allowed for women who are unable to conceive to start a family have not been legalised since their development. Commercial surrogacy is illegal in NSW under the Assisted Reproductive Technology Act (2007), and it is illegal under the 2010 Surrogacy Act to partake in surrogacy overseas. Various lobby groups and organisations have opposed surrogacy on moral grounds, claiming that it would pave the way for an individual to “order” a baby. Others have embraced this technology, claiming that it allows desperate would-be mothers and homosexual couples a second chance at having children.
Altruistic surrogacy, unlike commercial surrogacy, involves no monetary payment or financial gain to be made available to the gestational carrier and therefore ensures that women do not exploit their bodies in this manner for financial assistance. Altruistic surrogacy is legalised in NSW under the Surrogacy Act 2010to accommodate the views in society which believe that this technology is beneficial for women in the community who are unable to conceive. Furthermore, the Adoption Amendment (Same-Sex Couples) Bill, which was passed in the NSW parliament in 2010, has made it easier for homosexual people to start a family through employing a surrogate, as both parties can apply to adopt the child of the biological parent. This demonstrates that although the law has taken many years to be codified, it is evolving to reflect society’s values by allowing this technology to be accessed by all people in the community, regardless of the sexuality. Furthermore, this demonstrates that the law is trying to keep up with evolving societal values in an ever changing world.
The law has responded to society’s changing views in the area of parental responsibility, as there has been a shift from a view of parental rights to control their children to a view of parental responsibility. In 1990, Australia ratified the Convention on the Rights of the Child (CROC), which reflected the international community’s changing values in the area of child protection. Although this convention has not been fully recognised in Australia through legislation, state legislation such as the Children and Young Persons (Care and Protection) Act and the Children (Protection and Parental Responsibility) Act have been enacted in the best interests of the child and in accordance with this convention. Under this legislation, NSW police have the power to take children home if they are at risk of becoming involved in anti-social behaviour, thus upholding the view that the child is of paramount concern. This emphasises the responsibility of parents to their children, as it allows the parents to teach their children morals and values and gives the responsible parents an opportunity to address problems before they escalate. This demonstrates the international community’s and society’s expectations that the protection of the most vulnerable members of society are of paramount importance and is reflective of society’s changing values.
On a federal level, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was enacted; allowing for a greater emphasis on shared parental contact and parental responsibility in broken families. The obligation to take responsibility for the care and financial support of a child is considered to be one that should be met by both parents, and this legislation codifies this belief into law. The effectiveness of this legislation, however, can be adversely affected when a parent manifestly fails in their responsibility to their children whilst the child is under their care, as there is a high cost associated with running government bodies designed to handle such cases. For example, in the case of Kiesha Abrahams, the Department of Community Services (DOCS) had been informed several times of the danger that this child was in under the care of her mother and step-father, however, due to DOCS being under-resourced, they failed to act resulting in her brutal murder. If DOCS had been better resourced, Kiesha’s biological father may have had full custody over her which may have prevented her from being subjected to neglect. Therefore it can be seen that although the law is reflective of society’s values in this instance, it has failed to achieve the adequate care and protection needed for children.
In essence, the law has ultimately responded to the contemporary issues concerning surrogacy and birth technologies, as well as the changing nature of parental responsibility, and still continues to languish behind the progressive views regarding the recognition of same-sex relationships. The lengthy time taken, however, for the law to respond to these issues has impeded upon its effectiveness as a means of reflecting society’s values.