Family Law Essay

Q27 (a)

Laws are defined to be rules which are determined and enforced by a sovereign power. These laws are developed in reflection of society’s beliefs, values and attitudes towards certain areas of life. However society is very dynamic and laws must be amended and reformed to meet these changes within society. Family law is a dynamic area of the law, with perceptions of family and family affairs constantly changing. Within family law there are three main areas of reform, firstly, the family itself and the process of divorce. Secondly, domestic violence within the family, and thirdly the recognition of other forms of family arrangement, specifically homosexual de facto couples. It is these three topics in which the law attempts to provide justice and equality; however, in certain areas the law is seen to ‘limp behind’.

Breakdown of relationship
Divorce Law has been an area of family in which significant reform has taken place, most notably the introduction of the Family Law Act 1975. This particular piece of legislation took over its predecessor; the Matrimonial causes act 1959, facilitating the need for only one ground for divorce in contrast to the previous 12 grounds. The introduction of the FLA implemented the idea of ‘no fault’ divorce where all that was needed to be proven was that there was an ‘irretrievable breakdown of the marriage’. In order to demonstrate this, the couple must live separately for 12 continuous months. However the flexibility of the law is demonstrated through allowing those who are financially unable to live separately to still partake in this, as long as they are willing to remain separate and not act as a couple in public. Furthermore the law has changed as a result of society’s attitudes and beliefs to allow an attempt at reconciling the marriage through a three month period deemed the ‘kiss and make up’ clause. This allows the couple to attempt to reconnect without interrupting the 12 month period of separation. The law further facilitates the ability for the family to reconcile through the Family Law Reform Act 1995 in which couples must attend a compulsory mediation session in facilities known as Family Relationship Centre’s. This must be completed before any attempt to approach the family court. Ultimately, it can be seen that the law is responsive to society’s attitudes and values, however is not pre-emptive. It is for this reason that it is natural for society to move ahead while the law lingers behind, yet divorce law has been reactive to changes in society.

Domestic Violence
Domestic violence is a growing concern in Australia that has received a growth in public awareness, in which the law has been quick to respond to. The introduction of the Crimes (domestic violence) Amendment act 1982 was developed in response to the growing cases of domestic violence, and the little power/enforcement the police had. Upon implementation, this gave police the ability to order a restraining order (formally known as an Apprehended Domestic violence Order) or even issue a warrant for arrest by telephone as well as the ability to enter a house to investigate or prevent domestic violence. Upon the issuing of an Apprehended Domestic Violence Order (ADVO) against an individual, police have the ability to revoke that individual’s firearms licence and confiscate their firearms under the Firearms Act 1994. Furthermore, the recent introduction of the Family Violence Act 2011, displays the responsiveness of the law, redefining abuse and domestic violence to a more accurate definition, and aims to protect women, and mainly children from acts of domestic violence, as the government recognises the detrimental effects that exposure to such violence has on the development of the child. It also empowers law enforcement agencies, providing greater power and involvement in court proceedings. Also the domestic violence history of individuals is now recognised in court through the Family Law reform