Laws822: Family Law Essay - Semester 2, [University Name]

This essay addresses three key questions within the realm of Australian Family Law. The first question examines financial agreements introduced in 2000, contrasting them with traditional Family Law Act (FLA) approaches, and analyzing their impact on individual autonomy, financial interests, and th...Read More

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ESSAY ON FAMILY LAW

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Question 1
The government introduced financial agreements in 2000 as it allowed several parties to come
out of the authority of the FLA. Several areas can be noticed by the government while
introducing financial agreements. These are as follows. It is required to contrast the trend at
FLA, which provides ordering arrangements privately. To that, the dependencies related to social
reality are created with the help of family care arrangements.
Moreover, it has been observed that the situation arises for the children. Hence, the introduction
of FBA emphasised on a trend towards autonomy related to an individual activity. Although,
there are several provisions can be found at the FLA that enables special circumstances to help
the financially weaker party. Moreover, the autonomy of ideology offers to provide severe
protection of interests related to finance for parties who faced relationship breakdowns1.
It can be affiliated that FBA extended fact couples to increase the privatisation of families who
entered into the offered private agreements. The families are out of the authority to determine the
nominated property covered related to the agreement. This includes methods to protect
financially interested parties as well as identifies the aim of the purpose. Public purse related to
FLA helps to reform the cost of dependency along with the private relationship with a social
cost. FLA indicates family as a private institution where the role of law is to dissolving and
making a marriage, evaluating decisions on childcare, distribution related to property, providing
a primary claim to share the non-functional contributions. The contributions are made of
properties related to welfare. In the case of Hoult v Hoult (2013) 50 Fam LR 260, the high court
decided to make the power exiting2.
1 Family Law Amendment Act 2000
2Hoult v Hoult (2013) 50 Fam LR 260

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According to this case, the binding-financial agreement must consider as a private agreement
which might be entered in between the couple. In this legal constraint, there has been determined
how financial resources and property should deal with future separation. At the first instance, the
judge has been declared that BFA was not appropriately binding that was responsible for making
it inequitable and unjust.
The main purpose of the family law has been noticed as the vulnerable partners get property
share without being exploited. Moreover, the possibility of FLA authorisation is cleaned. In
addition to that, individual autonomy ensures private ordering related to dependencies related to
roles giving. The FLA’s preference has been identified as an increase in certainty, effective cost-
related outcomes, response to the authorization discretion, and modifying the social expectations.
In addition to that, dependency related issues are observed along with financial arrangements
related to relationships.
Moreover, individual autonomy is aligned with legal provisions. The legal provisions are
identified as scrutinizing of agreements along with a partial instance of the welfare system. The
discussion can be further explained as maintenance of arrangements related to social welfare
payments. This study has shown the functionality of family law, which includes family
dependencies on the state. For binding financial agreements, two requirements need to be
followed. One is a formal requirement; another one is narrated to be substantive requirements.
The formal requirement should focus on the specified relevant FLA. The FLA exists previously,
and the new FBA is to terminate. In the case of substantive requirements, it is required to relate
the parties’ financial resources and properties along with marriage breakdown. However, the
agreements can still be operated if not meeting the requirements.

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Government has introduced FBA as its effects on individual autonomy. FBA has been initiated
for some major reason that is mentioned in the following section:
 To protect the financial interests of contractual parties for saving the public purse
 To reforms dependency cost within its private association.
Additionally, FBA has provisions at the FLA, which impacts on the private agreement related to
special circumstances. Moreover, a provision of FBA was extended to certain factors in March
2009. In 2000, the provisions of FBA in the FLA had been observed related to FLA property
provisions. However, the aim of the provisions of FBA has been fulfilled. Hence, according to
this overall discussion, the family construct has been confirmed to the Australian family.
Concept of provisions embody is reflected over private agreement approaching by which the
social welfare of a country can be determined. On argued with this discussion, the aim of
provisions of financial agreements must be fulfilled that has been discussed based on the above
case scenario. About that, the regulatory approach is bound to establish private institutions to
develop decision-making approach of financial as well as non-financial contributions (Family
Law Amendment Act 2000).
References:
Hoult v Hoult (2013) 50 Fam LR 260
Family Law Amendment Act 2000
Question 2
A rebuttable presumption indicates that at the BIC, both parents are found sharing equal parental
responsibility to take the responsibility of a child after mutual separation. In addition to that, the
other factors, which have a major impact on the case, are, ensuring the involvement of the
parents at the child’s life and ensuring the child getting proper parental help from the separated

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parents. It has been further identified that this matter indicated as the attention focused on
parents rather than at the child3.
Moreover, the principle towards parents is related to parental responsibilities. In the case of
Parker v Parker (2010) Fam CA 664, the resource has not shared parental responsibilities related
to presumption.
Moreover, the pathway is considered as care shared equally4. In addition to that, an interesting
aspect has been acknowledged as the evidence is found related to household work. As a result,
the court can identify parental decisions related to legal separation. It can be found that while
dealing with the normal scenario, it is expected by the parents to discharge parental
responsibilities. However, it is observed that family contexts are available in three types. These
are intact, separated and dysfunctional assessment. Furthermore, it can also be observed that the
interests of children can be recognized as parental responsibilities, such as equally shared
parental responsibilities5.
Moreover, it provides presumption related to parental responsibilities. The fact includes
reasonable grounds that believe that parents are involved in child abuse as well as family
violation. If presumptions are not applicable at the provided fact, the court must decide related to
the BIC, whereas if the presumptions are applicable, then the legislative approach must decide
against the BIC.
In addition to that, care shared aspects are observed as sharing parental responsibilities to
provide equal time. The major areas to be covered are sharing equal time at the child’s interest.
Moreover, practicable reasonably is recognised6. There are several deciding factors are found
3 Susan Maidment, Child Custody and Divorce (Croom Helm 1984) pp. 100-6; 149-168
4Parker v Parker (2010) Fam CA 664
5 Pt VII of the Family Law Act 1975 (Cth)
6Anthony Dickey, Family Law,Law book Co., 5th ed., 2007 p 241-242

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related to the high court. These are as follows. Current location of the parents, future as well as
the current capacity to implement the proposed arrangements, future as well as the current
capacity to communicate with each other, major impact observed at the child as well as any other
matters that are relevant to court’s consideration.
Furthermore, it can be found that presumptions share parental responsibilities to obtain a positive
impact on the child. It can be considered as positive findings on both reasonable practicality, and
best interests have positive impacts on the findings. Moreover, presumptions related to sharing
parental responsibilities can apply to the court to gain equal time for each parent. Moreover, it
can be observed as both reasonable practicality test, and BIC has impacts on the positive
findings. Furthermore, it is found that the court is responsible for making equal order related
arrangements7. To impose presumptions at child proceedings at the family law, good reasons can
be observed as procedural issues related to FLA.
Implementation of presumption in child proceeding is also affiliated with some good reason
based on family law. It is strongly narrated with child protection philosophy, which has an
impact on joint guardianship. It also has effects on incorporate the welfare of the child principle.
However, the centrality of the child’s welfare related to divorce and custody affects the child
protection tradition — moreover, identification of child protection ideas to the social order
related to the occupation of middle-class women.
References:
Anthony Dickey, Family Law, Lawbook Co., 5th ed., 2007 p 241-242
MRR & GR (2010) 42 Fam LR 531
Parker v Parker (2010) Fam CA 664
7MRR & GR (2010) 42 Fam LR 531

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Susan Maidment, Child Custody and Divorce (Croom Helm 1984) pp. 100-6; 149-168
Pt VII of the Family Law Act 1975 (Cth)
Question 3:
Family Law Act (FLA) 1975 (Cth) under section 60CC of FLA protect the rights of Aboriginal
children. Based on this section, FLA adequately protects the rights of Aboriginal and Torres
Strait Islander children to their culture. This legislative framework helps to deal with welfare and
custody of aboriginal children about secondary and primary considerations.
Additionally, such family law also adopts a gender-neutral instance based on economic
dependency.
On the other hand, the law has taken no responsibility for psychological and emotional
assessment of personal breakdown relationships. This act covers all children entirely in the
country except the cases regarding child welfare and adoption. According to FLA 1975, different
states of Australia have power regarding child welfare and adoption8. Some children are not
included in FLA, and they are such as immigrated children and children under custody. Pt VIII
of FLA 1975 (Cth) represents decisions in cases involving some disputes about where a child
should live or how much of time they should spend with each of their parents. There are some
main features of the Australian Family Law Act of 1975, the welfare of children and widening of
discretion to the courts to interpret the BIC. According to Part VII of this Law, the main
objectives of this law are such as:
 Children can receive the assistance of both parents, along with having a consequential
involvement in their life to the utmost extent, reliable with the finest well being of
children.
8 Family Law Act (FLA) 1975 (Cth) (60CC)

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 This law protects children from any abuse, negligence, family violence regarding
psychological or physical harm.
 Ensures that children can receive appropriate and sufficient parenting help to accomplish
full potential.
 Ensures that their parents are fulfilling their duties and errands regarding mind,
development as well as the welfare of children.
For example, in the case of Harris v Caladine (1991) 172 CLR 84 HC, a couple applied in Full
Court of Family Court of Australia. This couple has been applied in front of the court under s79
of FLA 1975 (Cth) for an order for settlement of material goods, though at the end the wife
withdrew the case. In case of the decision given by judges of the family court of Australia. As
per the court gave the opinion, the appeal has been declared as granted. Moreover, the
application was remitted for evaluation of putting into effect of power by the deputy registrar
Lee to the single judge of the Family court for determination by the judgment of this particular
court9. This example shows the implication of such a law.
Right to culture means changing the system of family law to include indigenous law preferences.
This is to be done so that it can be placed in the hands of the indigenous leaders. This is entirely
another issue with some potential problems. The impact of presumption of responsibility (which
is shared between parents), a court is not going to favour anyone between the two parents10.
There is to be a presence of increasing recognition in the autonomy of child in the various aspect
of legal systems, ultimate decision-making authority regarding this matter is to be the judiciary
body itself. The paternalism of law rather than full capacity or autonomy of a child is prioritised
properly.
9Harris v Caladine (1991) 172 CLR 84 HC
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In the case of Wotherspoon and Cooper, the court is not considered children’s desires; however,
it must be focused on their welfare. According to the family act of 1975 under the section of 60
CC, the impact of presumption of the shared responsibility played the most crucial role. The
court is bound to listen to children if he/she is more than 14 years old. However, after 1983, the
legislation changed where it has been seen that children are influenced by their parents. In
addition to that, the focus has been made on the children’s view. Moreover, suggestions were
made on the ATSI culture as well. Based on that, balance in between legal capacity can be
determined effectively11.
References:
Harris v Caladine (1991) 172 CLR 84 HC
Family Law Act (FLA) 1975 (Cth) (60CC)
Wotherspoon and Cooper
Question 4:
The rationale for having a child support scheme is such as:
 To make an end to child poverty12
 To change the mortality rate in society along with some more sole parents- parents are
responsible for rearing or bringing up their children.
 The father of the children would pay the higher in case of rearing up of his children.
Minimum payment for all children.
 The general idea regarding reforms- parents are sharing the cost of their child's
upbringing.
11 Wotherspoon and Cooper
12 Harry D. Kruse, ‘Child Support Reassessed: Limits of Private Responsibility and the Public

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 Whether parents do not receive the family tax benefit at a more than base rate or
receiving rent assistance, CSS is not mandatory, but if parent’s family receives this
family tax benefit, the application of CSS is a matter of compulsory13.
The current scheme of CSA has passed by commonwealth with bipartisan support. The original
proposal regarding this is such as:
 Enforcement of the maintenance of law through Tax Office
 Use of method to establish the level of the preservation orders at least in general run of
the cases
 Application of procedure by managerial progression with the right of the appeal to a
court.
The result of the proposal mentioned above was an enactment of child support (collection and
registration) act 1988 and Child support (assessment) Act 198914.
The basic formula to assess the child support amount is:
Child support amount = child support income amount - exempted income amount X child
support %
(There, all children live with a payee; payee's income is less than $31,351)
Child support income amount is similar to the most recent taxable income (taking into account
exempt foreign income and rental property loss).
According to some evidence, near about 81% of non-custodial parents earn less than average
weekly earnings. CSA's general administrative practice differs between issuing a default
assessment based on the average earnings per week or 2.5 times the average weekly earnings.
The child support payment is to be calculated based on the actual costs of children. The child
13 Child Support (Assessment) Act 1989
14 Interest’, Family Law Quarterly, 1990, (25) pp. 1-35

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support scheme in Australia is helpful to protect the basic needs of children. In this context, the
joint income of both parents will be used to calculate the payment for child support.
According to Dylan Vs Dylan case (2007), the court said that, weight is to be given to a child's
views depending on the range of factors including the child's maturity and age, if there is any
sibling, then it is the best to keep them together, the desire ability to maintain the long-term
relationship with the parents, where the children in pursuing a negative views about relationship
between parents at that particular time period15.
According to the CES v Superclinics case (1994), D was in the breach of the duty to either
vicariously or personally by failing to identify pregnancy. As a result of this, the opportunity of
having an abortion at a safe period has been denied. It is a case of wrongful life case. P has been
claiming the loss of opportunity to perform an illegal statement. The court stated the negligent
advice resulting in loss of chance to make abortion lawfully, and this has been raised to a claim
for damages16. According to the above discussion, it can be justified that there is a need for
improvement at the child support scheme. However, the parents are needed to be more focused
on their children in which the Australian scheme is directly affiliated with social security
progress as well as support burden. On the contrary, the country’s economic reciprocity is also
needed to examine that deals with social responsibility rather than private responsibility.
Moreover, the implication of social security is directly associated with provisions of FLA that
helps to flourish the welfare system [Child Support (Assessment) Act 1989]. Current scheme of
child support is found to be stuck to maintain the right balance due to its inappropriate and
15Dylan v Dylan [2007] FamCA 842 at paras 173-180, 221-244
16CES v Superclinics 1994 NSWSC

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unjustified nature. There can also observe to have a lack of awareness among their parents
regarding cultural and society based responsibility17.
References:
Dylan v Dylan [2007] FamCA 842 at paras 173-180, 221-244
CES v Superclinics 1994 NSWSC
Harry D. Kruse, ‘Child Support Reassessed: Limits of Private Responsibility and the Public
Interest’, Family Law Quarterly, 1990, (25) pp. 1-35
Child Support (Assessment) Act 1989
Question 5:
According to the Australian constitution, there are several, types of assessment, which are not
included in family legislation approach. However, all of those practices are focused on covering
effectively. It is narrated that the implication of family law is significantly associated with child
protection assessment, surrogacy, abortion and artificial techniques. In this context, the
researcher has focused on discussing the responsibility of a country’s social policy, as well as
legal consideration, is mitigating the significance of child abortion18.
The function of legal and social policy:
Role of social policy must be asserted with private, political, moral as well as ethical matters. On
the other hand, the country’s population control should be equal to birth control. For reducing the
significance of child abortion, there should have required increasing awareness among
individual. In regards to that, permissible Australian regulation must be taken a restricted step.
Country’s socialist position is focused on improving to determine contradiction in between
17 Harry D. Kruse, ‘Child Support Reassessed: Limits of Private Responsibility and the Public Interest’, Family Law
Quarterly, 1990, (25) pp. 1-35
18 Australian constitution of child support section (51)

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repressive nature to social organisation and freedom to fertility. As per the legal framework, it
can be affiliated that child abortion is an essential assessment for women’s equality rights that
helps to determine employment level19.
Australian social policy has mainly focused on developing the Act of Abortion law, which is
reviewed in 2008. About that, its legal approach is also responsible for determining women’s
physical and mental health that emphasises social and economic pressure. However, the rate of
child abortion is rapidly enhancing now a day. Due to that, the Australian regulatory body has
been decriminalised along with the enactment of Act of Reproductive Health that is regulated
from 2013. On the other hand, the country’s medical facility has also been improving in a
significant manner20.
The shape of regulation in determining the association between the social relations of
women and men:
This regulation shapes the relation between women and men and social relations more broadly.
When a family is not functioning in such a way of a nuclear family, the state needs to step into
the matter and has to normalize the situation of the family — the feminist movement aimed at a
couple or individual reproductive self-determination. Eugenics movement, an important key
point related to this law, represents the control over population growth aimed at the entire
community. This is usually places where there is a situation of social unrest or poverty.
On the other hand, the children of the first and second family will be treated as equal bodies and
both the parents will contribute to the cost for their children through care and contact is to be
recognized in that case. Cattanach Vs Melchior case represents two important questions. They
are such as:
19 Children by Choice, Australian Abortion Law and Practice (26 November 2015)
20Abortion Law Reform Act of 2008

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 The damage has to be assessed
 The process in which anyone can balance costs with the benefits of having a child.
In this particular case, the law has been broken by the doctor and had to pay damage charges. In
this context, the court says a little more: motherhood is the natural role of women, the family is
to remain intact, and the removal of children is last resort, usually in cases of the child
maltreatment. According to Australian child protection regime, all of the jurisdictions have to
maintain the utmost importance of BIC principle21.
In this area, the issues related required cover to child protection, social welfare, adoption and
artificial reproductive technology. Moreover, this regulation shapes the relation between social
attributes. Concept of family law is considered to be very important in maintaining the
association of regulation based framework. BIC principle helps to develop community and
government responsibility for increasing child welfare and protection by upholding indigenous
culture.
References:
Abortion Law Reform Act of 2008
Cattanach v Melchior (2003) 77 ALJR 1312
Australian constitution of child support section (51)
Children by Choice, Australian Abortion Law and Practice (26 November 2015)
21Cattanach v Melchior (2003) 77 ALJR 1312