It is essential that the legal system reflects the moral and ethical standards of Australian society.
Analyse this statement and evaluate the effectiveness of the legal system in reflecting the values of society and protecting family members. Refer to problems in family relationships in your response.
Family law, possibly more than any other area of law, is filled with issues that reflect the values and ethics of Australian society. The role of the family law role is to protect all family members, particularly the rights and responsibilities of children. Due to the ever changing notion of family there have been amendments to existing legislations, new legislations have emerged and court procedures have also changed. Be it in regards to divorce, protection of children, de facto relationships or ATSI marriages. However, its effectiveness in achieving justice for all parties, and protecting their particular interests, has been debatable.
Divorce is one key are of family law that has seen many changes from previous years. Under the Matrimonial Causes Act 1959 (Cth), only the notion of ‘’at fault” marriages were granted. This required one of the parties to prove to the court that the other party was at fault (i.e. Adultery cruelty, insanity etc). However, it was found out that such “at fault” divorces were inefficient and led to severe strain on all families undergoing such a divorce, especially on the children – as their parents were fighting in court about who is to blame. This is apparent in the case “Smith and Smith” where their divorce proceedings took over 3 years to sort out, due to Mrs. Smith trying to prove that her husband was an alcoholic who didn’t support the family, and Mr. Smith counter accusing her of infidelity. Due to this ineffective and traumatic nature of the court system, as well as society’s changing views on divorce being more acceptable, the federal government introduced the Family Law Act 1975 (Cth). This new legislation made several changes in regards to divorce. Under section 48 of the Family Law Act 1975 (Cth), the only ground for divorce is the “irretrievable break down” of marriage – which can be demonstrated by separation of 12 months. Since that reform, it can be seen in the SMH article “Divorce rates through the roof” (1985) that divorce rates have increased greatly, thus showing the new “no fault” divorce is a lot smoother, stress free and without pressures of proving who’s at fault. Basically the process of getting a divorce is now a lot more streamlined and simpler, allowing couple’s in unhappy marriages to get a divorce. Hence, it can be said to be a very efficient process where individual rights are protected; this can be seen to be effective in achieving justice for the disputing parties. Children are further protected under the new ‘no fault’ divorce, due to its easy nature as well as its focus on dividing parental responsibilities. Part VII of the Family Law Act 1975 explicitly states that it “acts in the best interests of the child” which basically means children’s rights are guaranteed under family law. That is why, under Family Law Amendment (Shared Responsibility) Act 2006, parents have to draw up a parenting plan in regards to children in the event of a divorce. . Overall, the law reform in regards to divorce and parental responsibilities have been very effective in protecting the rights of all those involved – which is due to changes in morals and values of society.
De facto relationships weren’t previously recognized same-sex or otherwise. Historically, the only type of relationship that was accepted by society was a heterosexual marriage between a man and woman, thus this led to severe discrimination against same sex couples, unmarried single mothers, unmarried heterosexual couples, etc. But, over time the morals and values of society has changed and it has been more accepting of de facto couples. In 2008 family law amendments were made and the - Family Law Amendment