Category: Family law

There are two famous legal system existed in the world. Roman law which is functioning in European countries and the common law known as English common law. Therefore, Scotland has a mixed or hybrid legal system which is derived from both Roman law and the Common law. It is suggested that Scottish law has more empathy with the civilian systems of law in many aspects. However, for centuries English Common law has been strongly influenced Scottish legal system.

Until 1707, Scotland and England were two separate sovereign countries. Therefore, both countries had their own separate Parliaments which made laws or statutes to follow. In 1707, both countries are agreed to join each other and subsequently both parliaments passed the Act of Union which was ratified by both.

As a result of union both Parliaments had been abolished and then a new Parliament came in to being as Parliament of Great Britain sitting in Westminster London. Although, both countries now merged into one, but it did not mean that Scottish legal system is now abolished, since the union, and then the treaty of union, preserved the distinguish status of Scots law and its legal system.

Scottish people wanted to retain some freedom to keep their legal system alive. Therefore, Scotland won a referendum in 1997, in which the Scottish people voted for devolution, the powers of the devolved legislature which were pointed out by the Scotland Act 1998.

As a result Scottish Parliament came in to existence in 12 May 1999 with a mandate to make laws in devolved matters such as family law, health and social services, education, housing, land and planning, local government, Agriculture, forestry and fisheries etc., However, the United Kingdom Parliament has authority on reserved matters such as Benefit and social security, broadcasting, defence, employment, foreign policy, immigration and nationality etc., In addition, the Scottish parliament has the powers to make laws in all areas which are not explicitly reserved to the UK Parliament. Furthermore, the UK Parliament holds the ability to amend the terms of reference of the Scottish Parliament and can make necessary changes into areas in which it can make laws.

Scottish Family Law

As said earlier, Scotland has its own family laws as devolved matters. Therefore, Scotland has authority to make their own family laws and implement within their jurisdiction. Children and family law of Scotland slightly different from the UK family law. Scotland has no separate family court where family cases can be heard but rather have Sheriff Court and Court of Session. However, family cases can be brought if more complex at first instance before the Court of Session , and if less complicated or straightforward than in Sheriff Court . Key legislation made in this context is Children (Scotland) Act 1995 and The Age of Legal Capacity (Scotland) Act 1991.

Sources of Scots Family Law

Children and family law of Scotland are mainly rooted in common law, but legislation proved that there are effectively two sources existed:

• a. Legislation approved by the Scottish Parliament, the UK Parliament and the European Union . And
• b. The Case law as applied by the Scottish courts.
• c. Legislation passed by the Scottish Executive, the UK government and the EU.
• d. Case law as applied by the courts.

Furthermore, the United Kingdom, European Union and Scottish statutes are presently providing matrimonial or family law in Scotland. Such as,

1. Divorce (Scotland) Act 1976 (1976 Act).
2. Family Law (Scotland) Act 1985 (1985 Act).
3. Children (Scotland) Act 1995 (1995 Act).
4. Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).
5. Civil Partnership Act 2004 (2004 Act).
6. Family Law (Scotland) Act 2006 (2006 Act).
7. Marriage and Civil Partnership (Scotland) Act 2014 (2014 Act) .

The United Kingdom after 31 of January will no longer member of the European Union as the UK decided to leave the European Union on 16 November 2016 . Therefore, after the 11 month of transition period many EU laws no more binding on the UK or Scotland.

The Children Scotland Act 1995

The 1990s have been incredible in the family law history of Scotland because of many changes happened and new laws came into existence. The most important of these changes were undoubtedly the addition of the children (Scotland) Act 1995. Part 1 of the Act 1995 stressed on parental responsibilities and parental rights . also, directed the Scottish Courts to give due consideration to the views of the children where they are reasonably show sufficient maturity to express themselves. The Act provided courts a direction that their primary concern in child’s issues is the welfare of the child and court should not make decision in relation to the child unless they satisfied that the child’s rights are protected, and this is in the best interests of the child to do so.

The Act 1995 also expressed obligation on local authorities to protect children and respect their views as their right. Also, the Age of Legal capacity (Scotland) Act 1991 was an important statute of 1990s which provided Scottish Courts the age limit of the children when they can express their views without duress or with freedom of will.

Parents responsibilities and Rights

It had been long time understanding that “parental rights only been to protect a child or for the benefit of a child and they are reasonable in so far as they allow the parent to perform their obligations concerning their children. Per lord McCuskey in White v White , stated that “there are four parental responsibilities: (1) to safeguard and promote the child’s health, development and welfare; (2) to provide the child with direction and guidance; and (3) to maintain personal relations and direct contact with the child; and (4) to act as the child’s legal representative”. This means that it is the responsibility of the parents to act on behalf of their child only in the best interests of him/her. Otherwise they must not act as the child’s legal guardian if it is not in the best interests of a child. For instance, raising an action in the court on behalf a child which has less chance of success. They must maintain contact with their children where necessary or possible but there is no breach of responsibility if a child living abroad and parents live in Scotland. Article 5 of the UNCRC directed that parents are responsible to provide reasonable and appropriate guidance and direction to their child until the age of 16 and they are obliged to guide them until the age of 18.

Best Interest of a Child

The children (Scotland) Act 1995 consider child, a person under the age of 16. Article 1 of UNCRC states that “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’

The best interests of a child‘s principle set by the court in Scottish case of White v White where court decided children’s residence in favour of mother as parents divorced and children living with mother. The father raised an action in the court for contact with the children. The father did not successful as he did not sufficiently evident that it was for the best interests of the children to be in contact with father.

The sheriff court, in reaching his decision and applied the general principle confined in the Children (Scotland) Act 1995 s.1 that it was the responsibility of a non-resident parent to establish personal relations and direct contact with his/her child in the provision of s.11 (7) (a) which obligatory on the court to have respect to what was in the best interests of the child. However, No evidence had been suggested that father had ever performed in any way that could be construed as detrimental to the child, certainly he had made significant efforts to establish contact with his child. Also, there had been indications that the child’s medical conditions linked to the proceedings and that these were likely to worsen if contact continued. It was, however, felt that they would consider again as soon as the child more familiar with father.

Mother’s appeal was successful at the Sheriff Principal Appeal court where the court held that father had not cleared the onus upon him to prove that contact was in the best interests of the child. Father appealed and argued that under the under the Human Rights Act 1998 Sch.1 Part I Art.8 , a parent always had a right of access to his/her child unless it could be proved that it was not in the child’s best interests. Mother argued against and stated that the sheriff had make a mistake in applying a presumption in favour of contact, that an onus rested on the parent applying for contact and that if the appeal was going to be allowed, the court should intimate that to the child and afford the opportunity to be heard on the matter.

The appeal court Held, allowing the appeal and restoring the order of the sheriff, that (1) in applying the general principle set out in s.1 and in Sanderson v McManus , that it was helpful to a child’s welfare to establish personal relations and direct contact with the non-resident parents, the court had to consider all the relevant material before it and then decide what would be in the best interests of the child; (2) s.11(7)(a) of the 1995 Act did not impose any legal onus in a case where a court made a contact order impulsively and therefore the section could not be read as imposing such an onus where a party had applied for such a contact order to be made; (3) if having considered the material before it the court decided that direct contact would benefit the child, the court then had to decide whether the granting of a contact order was in the best interests of the child or whether the parties should be left to agree contact, and (4) there was no requirement to intimate the intended decision to the child as she was already aware of, and had sought legal advice on, the proceedings and had not requested to be heard.

Opinion, per Lord McCluskey, that it was incredible that a court, in deciding what was in the best interests and welfare of a child, and having heard all the evidence, should base its judgment on the failure of a party to discharge an onus of proof.

Introduction

When we speak of sources of law, it is essential to mention custom. This is due to its peculiarity, as unlike other sources of law. Which are in a form imposed on the populace, the custom is a totality of what the people generally as having the effect of law. African customs are unwritten traditions and practices of the people in a classic African Society.

The beliefs and practices of various African societies vary according to what is acceptable to them. However, a common understanding drawn from the African Jurisprudence is that law is a fundamental part of their culture and thus seen as a tool for maintaining social equilibrium and gives prominence to the distributive justice.

Family law encompasses various subdivisions which are touched one way or the other by African Custom. For example, African Custom prescribes different rules on marriage, succession and dealings with Children, all which fall under the field of family law. This work will give a detailed view of the influence of African Jurisprudence on Family law.

Contract to Marry and Marriage

The traditional African marriage was setting pictures a man paying a bride price to the family of the woman in exchange for hey physical and social values and benefits. In some instances, the children also pass as his property. Marriages in Africa are usually elaborate and public with a lot of celebration and jubilation as opposed to the solemn ceremony of the western culture. In Africa, marriages often involved contact between the husband and the family of the wife. Rather than a consensual relationship between the man and woman. African jurisprudence recognizes marriages done outside the provisions of the statutory Marriage Act as valid to the exact degree of the latter. Marriages consummated in a shrine are as compelling as those in a church. Also, there existed no such thing as a breach of promise to marry under the Africa family law, and so the man had the power to turn his back on the promise at any time. In certain instances, he could return the wife and collect the bride price back.

In South Africa, marriages were predominantly polygamous and as a result, were regarded as contrary to natural law and were not recognized by many states. Nevertheless, at the beginning of 1927, the custom of lobolo was formally protected by the Black Administration Act which prevented the courts from finding this custom as contrary to natural law and recognized the consequences and effects as legal and binding in South Africa.

The African System of Family

Family plays a significant role in African culture. It shapes such day by day experiences as to how and where people live, how they associate with the individuals around them, and even, now and again, whom they get married. In rural territories, the family remains the essential unit of agricultural creation typically.

For this study, Nigeria and Namibia will be used as a case study. In Nigeria, families are patriarchal with extended family members having more say than expected in contrast with family arrangements in the westernized world. Although kids are critical to Nigeria, families as guardians believe that their kids will offer help for them in their old age. The males are viewed as a progression of both family name and heredity, and the men are assumed to be predominant with ladies being dependent upon them.

However, in Namibia, Corporate kin groups are framed by ties followed through women (matrilineal), men (patrilineal), or both (bilateral), contingent upon ethnicity. These kin groups offer help arrange for their individuals and control joint property, particularly domesticated animals. There has been a general move from matrilinealism to patrilinealism, for instance, wives and children in matrilineal communities would now be able to declare rights to the property of deceased husbands and fathers, which has been traditionally acquired by the man’s matrilineal family members (his siblings and sisters’ children). Even though Nigeria families are patrilineal, scarcely would one be able to watch noteworthy contrast between Nigeria families and some Africa nations whose families are matrilineal.

Rights and Obligations in Respect of Children

Although most scholars believe that traditional African societies did not have laws, it is clear that there were systems put in place which protected and safeguarded the rights of children within traditional societies. An example of this can be seen in the early Yoruba societies which were mainly patrilineal, and more emphasis is placed on relationships which exist between bloodlines as opposed to marital relationships meaning that the family bond between a father and his children is usually given more attention than his relationship with his wife. Although this may be detrimental to the wife, it is to the advantage of the children. In a traditional Yoruba society, the father has the responsibility of ensuring that all the needs of the child are met which is similar to the provision of The Child’s Rights Act which provides that all the needs of the child which are necessary for his general well-being should be met. The children, in turn, have the responsibility of farming, trading and partaking in a vocation.

In the traditional Igbo society, provisions are made for the welfare of the male children upon the passing of the parents and the male child is expected to follow in the footsteps of their fathers as the breadwinner. Still, the girl child, on the other hand, may face several obstacles and although her general welfare is provided for she is not genuinely regarded as her father’s child because it is expected that she will remarry and take another family’s surname.

Although in traditional African law most societies ensured that parents fended for their offspring and provided their general needs and I turn the children are expected to play their role within the household by performing menial tasks and chores. Still, there is a clear difference in the treatment given to both male and female children.

Children’s family Rights and obligations involve assistance and respect that children are expected to provide immediate and extended family members and reflect beliefs related to family life that may differ across cultural groups. Within families, mothers and fathers had more concordant expectations regarding children’s family obligations than did parents and children. Parenting behaviours that were warmer, less neglectful, and more controlling, as well as, more authoritarian parenting attitudes were related to higher expectations regarding children’s family obligations between families within cultures as well as between cultures. Children’s responsibilities to the family involve a collection of values and behaviours related to children’s assistance and support to and respect for their parents, siblings, and extended family. According to Wiesner(2001), ethnographic research has shown that children in most societies are expected to contribute to the family by working (e.g., taking care of younger siblings, cooking, farming), and that fulfilment of obligations is essential to family well-being (and often survival). Perceptions of family obligations derive from ideas regarding families that are held in many different countries, e.g. traditional African concepts of family obligations, Individuals’ opinions of these obligations are important because they shape the ways family members interact and because they affect psychological construal’s of the family. Opinions of family obligations are a potentially meaningful way to characterize cultural values, going beyond social address models that compare groups based on ethnicity or national origin to understand what factors might underlie such group differences. Given that the theoretical importance of family obligations has been advanced in diverse countries and cultural contexts, the present study examines mothers’, fathers’, and children’s perceptions of parents’ expectations regarding children’s family obligations in an

Nullity Of Marriage

Nullity of marriage is a declaration by the court that a supposed marriage is null and void and that no valid marriage exists between partners. A petition for nullity differs from other matrimonial causes which relate to valid and subsisting marriages. In a petition for nullity, the petitioner seeks to establish that owing to some defect; the marriage is invalid. To petition for nullity has to be established that a marriage took place between the parties.

A special format is prescribed for a petition for a decree of nullity of a marriage. Such a petition shall indicate whether the decree is sought on the ground that the marriage is void or voidable at the suit of the petitioner and shall state the nature of the defect in the marriage. Under section 29 of the Matrimonial Causes Act, where both a petition for a decree of nullity of a marriage and a petition for a decree of dissolution of that marriage are before a court, the court shall not make a decree of dissolution of the marriage unless it has dismissed the petition for a decree of nullity of the marriage. The rule ensures that before the court embarks on the dissolution, the marriage in question must be established to be free from any defect which will make it void or voidable.

A petition for nullity shall be in respect of a void or voidable marriage. A void marriage is one that has never been in existence; such a marriage is void ab initio and the parties to it have never acquired the status of husband and wife. In contrast, a voidable marriage is one that is good while subsisting but may be annulled at the instance of one or both parties. We must, however, note that a voidable marriage does not need a court decree to bring it to an end because the marriage never existed. Where a decree of nullity is granted in respect of a void marriage, it is merely declaratory of existing facts. There are certain circumstances where customary law marriage may be void or voidable, and they include parental consent of a female person, persons related by blood, child marriage, and so on. Also, Islamic law regards some marriages to be a nullity in cases such as secret marriages, marriage for a period, marriage to a Christian as seen in the case of Noma v. Bugako, where the respondent, a Muslim, gave the appellant who was formerly a Christian, his daughter in marriage on the condition that the appellant changed his religion to Islam. It was held under Islamic law that parents are prohibited from giving their Muslim daughters in marriage to Non- Muslims.

Succession

Succession can be defined as ‘the transfer of legal or official powers from an individual who formerly held them to another who undertakes current responsibilities to execute those powers’. In simpler terms, it is the transfer of legal title subsisting within a person to another upon which such person shall have the right to exercise power concerning the estate devolved. The law relating to this area governs the way such power is transferred. It deals with the rules governing the administration of the estate by the personal representatives of the deceased person including state participation in respect of real estate situated within its territory and the personal estate of the deceased person subject to its jurisdiction.

Intestate Succession

Intestate succession occurs when a person dies without a valid will executing either a part of the whole of their estate. Thus there is an inability to quickly transfer their property. As a result, the law has put systems in place to justly divide property; this is achieved by using the law that governed the testator during his lifetime. Intestate succession under customary law in Africa will be briefly examined to enable further understanding of African jurisprudential family law.

In Nigeria customary law intestate succession is executed with legal principles. They are; the deceased customary law will be applied to divide his entire estate, one carries his customary law with him wherever he goes and the exception to this rule that acquisition of another customary law demands that the estate will be shared following the adopted law.

In South Africa the law is different, customary Law intestate succession is governed by The Intestate Succession Act which applies to estates where customary law was not applicable, this creates a uniform, relevant law for the courts to apply. The courts struck down the right of male primogeniture in the case The v The Magistrate, Khayelitsha thereby granting equality of the genders and regulating the many customary practices.

Testate succession

When a person dies ‘testate’, he is said to have been killed with a will which stipulates how his property is to be devolved. In such a situation, the law which would apply in Nigeria is the Wills Act of 1837, which has been amended as the Wills Law of various states. In African jurisprudence, the devolution of property is usually done intestate which shall be discussed in more detail below. This is because the property is usually shared according to the customs of the people. This however changed with the influence of colonial rule and the introduction of wills.

Conclusion

In conclusion, it is evident that some theories as stipulated by certain authors and writers as regards African and its jurisprudence is highly fallacious and lacks merit in all ramifications. The elucidation on the African system in family law, the principles, how the children are raised. Also, the morals and ideologies that guided the administration of the family, the devolution of properties and administration of the estate of a deceased are all evidence that there indeed existed a history of Africans to be told. The earlier stated is as opposed to the words of Trevor-Roper, a professor of History of Oxford University who said that there was no content on the history of the Africans to be taught.

The English system, as well as its theorists, believe that the English idea of law is superior to any other and believes that where any other legal system is not in conformity with that which they know; such legal system did not qualify as law. This work has been able to distil that there existed a legal system in terms of family affairs. This ranged from the agreements to marry, to how marriages were organized between the various families. Also, the rights and obligations concerning the children from various marriages, and how it was a communal effort to raise the children.

This work has been able to elucidate on the African system concerning testate and intestate succession as it relates to family law from the African jurisprudential perspective. It has also been resolved that there indeed existed a better and much more appreciated concept of family in the traditional African society as compared to the current English system. The above is evidenced in the sanctity of marriage, as marriages were much more respected in the traditional African cultures, the children were better brought up this was the duty of the entire community and not just the parents. The traditional African jurisprudence on the family did not recognize ‘divorce’ in any form but upheld the sanctity of marriages and the importance of raising well-trained and cultured children..

Early family law recognized “traditional” families as consisting of a married man and women who biologically conceive a child naturally. As time progressed, different social revolutions and technological advancements influenced society to expand their perception of what qualifies as a family. As a result of these adjustments, different laws were reassessed and modified to better suit the changes that these advancements entailed. Throughout history, law has moved towards more inclusive classification of family relationships by redefining family roles and expanding the circumstances in which family units are recognized that go beyond the ‘traditional’ ideology. In part with this broadened perspective, laws and legislations have worked to broaden the legality of nontraditional family procreation through the use of Assistive Reproduction technology. In this essay I will explain how some of these progressive court rulings and amendments to current legislation allowed for individuals, as well as infertile and nonbiological couples to establish and protect their parental rights through circumstances that were not initially accepted under the beliefs of “traditional family” structures. In addition, I aim to address a few of the psychological consequences that exist as a result of this method of legislation.

The social acceptance of using Assisted Reproductive Technology (ART) introduced the need for adjusted laws and regulation for this method of family procreation. It became the responsibility of each individual state to regulate how they handle conflicts associated with assisted reproduction. By using medical facilities and outside donors to assist with procreation, society pushed the boundary of preexisting laws that addressed maternal and paternal rights of offspring. With the involvement of ART, legislators had to change the way they dealt with a number of factors that are involved in the process of assisted reproduction. However, with ART making fast headway, much of the legislation was adapted after conflicts arise. It’s difficult to anticipate and regulate every conflict that could appear, and as a result, much of the legislation involved with assisted reproduction involves assessing each case individually and reflecting on similar past cases in order to determine the proper legal course of action.

Surrogacy

The use of surrogacy as assistive reproduction demonstrated how society’s practices pushed the envelope on what the law had previously constructed before third-party reproduction was introduced. At the time, surrogacy was not well regulated by law, and the idea of nonbiological parental rights only applied in instances of adoption. In the case of In Re Marriage of Buzzanca, the appeal court ruling awarded legal parenthood to Luanne Buzzanca and required that John pay child support as he is held responsible for intention of procreation through the practice of surrogacy involving a donated egg and sperm (Wald 1998). In reaching this decision, the Court had to reflect on previous California law that covered the topic of consenting to artificial insemination. Through this they were able to determine that even though the Buzzanca’s were not biologically related to Jaycee, their intent of procreation was more important than biological relationship in determining parental rights in the court of law. This ruling was viewed as having significantly strengthened the rights of infertile couples who chose to have children through surrogacy (Hernandez and Maharaj 1998). This case illustrates how State law demonstrated progression in the way they adapted to instances that were not previously regulated by law. By addressing the validity of intention of couples to procreate using ART, state legislation was able to broaden the laws by acknowledging the legality of nonbiological parental rights. The case of Johnson v Calvert was also brought up in the court proceeding because of the factor of intention on the basis of procreation and a two thirds evaluation that determined who was awarded parental rights through action and intention versus providing gestation services. The Buzzanca case ruling, in particular, helped to significantly update legislation on Assistive Reproductive Technology (Hernandez and Maharaj 1998). Prior to this case there had been a significant time period in which ART had advanced immensely and court legislation had updated its policies on the topic. The rulings of this case helped to keep pace with the progression of ART advancements while simultaneously chipping away the concept of “traditional” family relationship and expanding the ways in which we recognize nonbiological adults as having the right to parent and having legal custody despite socially untraditional circumstances.

In Vitro Fertilization

In Vitro Fertilization introduces a variety of new factors that contribute to family reproduction in ways that would be perceived as deviant of ‘traditional’ family construction. With all this technology being integrated into the practice of reproduction, standard “traditional family” beliefs were no longer valued as being critical factors in identifying familial legitimacy. Along with this broadened identification of familial construct, the increasing popularity of IVF heightened the State’s pressure to regulate the rights and responsibilities of all parties involved. In the case of Johnson v Calvert, Mark and Crispina Calvert were unable to have children on their own and opted to use In Vitro Fertilization to create a zygote and utilize the availability of a gestational surrogate (Panelli 1993). A contract was made, and all parties consented that upon birth, Mark Johnson was to be given full custody of the child and Anna (their surrogate) would relinquish her birth rights and allow for Crispina to adopt the child, in exchange for a payment of $10,000 and a life insurance payout. Conflicts arose due to lack of full disclosure of the surrogate’s previous health risks and Anna changed her mind and fought to keep custody of the child. Under the Law of the Court, the surrogacy contract was voided because it conflicted with the residing law in California at the time that prohibited the exchange of money for adoption of children. It was enforced, however, that the contract was made before conception and it laid out the clarification that even though she was the birth mother, Anna’s involvement was to provide a gestation service whereas the Calvert’s had the genetic parental ties to the child and acted with intent to procreate and raise the child from the start (Panelli 1993). This case was important in clarifying the parental rights of genetic versus birth relationship to the child. The court referred to the Uniform Parentage Act which recognized only one natural mother. Since both women were able to establish their maternal ties to the child, the court decision favored the relationship that consisted of intended procreation. The court ruling awarded the Calverts with parental custody of the child, but this case highlighted the need for better regulation of Assisted Reproductive Technology as it became evident that a majority of this process was excluded from laws and legislations referenced in the case. The State was able to determine that even though the Calverts used nontraditional methods of procreation, their parental rights were acknowledged for having the justifiable intention to establish a family. Even though the legal jurisdiction of this circumstance still needs some revamping, the state was able to resolve this issue, and acknowledge the rights of infertile couples to maintain custody through this unconventional method of establishing family.

State’s Responsibility for revamping legislation involving ART practices

Even though individual States have made progress in the way they expand laws to address situations involving the more modern methods of assisted reproduction, there are still many factors of ART that needs to be included in state regulation of medical practices and parental rights. Lack of well-structured regulation in this field promotes uncertainty and variation in the way conflicts are addressed. The lack of structured proactive legislation has psycho-social consequences for those who are affected by this reactive method of governing.

In the case of Davis v. Davis, the State’s absence of regulation in IVF contributed to the issue of not knowing how to determine the rights of a father to have control over embryos situated outside of the mother’s body (Sanger 212). Many questions arose in this case pertaining to the status of the eggs and whether to classify them as persons or property. Under Tennessee Law, the eggs were not covered as being living thing’s or property, but rather somewhere in-between, so the ruling was decided on a three-stage process that assessed how the two parties disagreed, discussed any prior arrangement, and expressed relative interest in how both parties wanted rights to the embryos (Davis v. Davis 1992). During this era, the gender roles of family organization and reproduction catered to women because of how gestation occurred within the mother, so when the court protected Juniors right to not procreate it was a very new concept that individuals right to parenthood were recognized in that context. Despite this expansion of the rights of parenthood between individuals, the lack of regulation of this process prior to conflict raises a lot of issues in how we deal with problems relating to IVF. Much of this dispute could have been resolved much easier had there been a method of established protocol enforced when engaging in IVF treatment. The same scenario of reactive legislation overlays in many of the cases mentioned previously. The lack of proactive regulation of ART practices results in avoidable legal problems and psychological strain on those affected by these developing case issues (for instance the case of Anna Johnson reacting negatively to sudden court rulings).

While state laws have made a lot of progress in the way we recognize parental rights, there is much more that needs to be addressed in regard to ART practices and how it is regulated by law. These unregulated circumstances create confusion and strain on how we address further cases involving third-party reproductive assistance. If states continue to address current and potential conflicts that relate to IVF regulation, more expansion and progressive legislation would help to make the laws surrounding assistive reproduction more concise and standardized to preserve equality in the way we recognize parental rights through nontraditional methods of procreation.

Family law is a fascinating area of study. It seeks to impose order on the chaos of people’s intimate lives (Herring, 2014). The area of study deals with relatively broad practice of issues that relate with marriage life and blood relations. Family law focuses on issues such as, adoption, divorce, child custody and among others. According to Herring, people seek the advice of a lawyer before getting a house or writing a will. Attorney are hired to represent their clients in the court proceedings. Since family law matters hit so close to home, having a trusted legal attorney by someone side can help one ensure their loved ones are properly represented during any legal process. This paper will deal with the family laws that help to tackle and solve different problems that are faced by different families and their significance.

Firstly, Family law is used to protect the weaker members of the family to get the justice required, for instance, children. Child trafficking have become a reality whereby children who are left with no one to take care of them are denied the right to have a place to call home. The Children’s Act has come to fill in the gaps and has come up with guidelines that regulate adoptions. Adoption is a concept that allows legal means to provide children with home that would protect and fulfill all their dreams. The process of adoption has to go through a very rigorous test before the orders can be granted. Adoption is complex process that differs with the type of adoption, where the child is from and other factors. Therefore, it’s important to consult with a family law attorney.

Secondly, domestic violence is another issues that is faced in a family. A spouse or any other member of the family can be harassed or physically abused. Family law systems are located at the intersection of contradictory gendered expectations. In family courts, abused mothers find themselves in a catch-22 situation where they are expected to separate from their abusers and divorce for the sake of their children (Dragiewicz, 2014). The Protection Against Domestic Violence Act is an act that provide protection and relief of victims of domestic violence. Spouse or children are protected under that law. When allegations of abuse are made, the court will typically issue a restraining order to prevent further contact. Judge will not hesitate to assert jurisdiction to protect any member of the family. All in all family law is included whereby some investigation will be done and laws to be applied to ensure relatively safe environment for those involved.

Thirdly, family law also deals with divorce matter. Today, there is little doubt that “divorce has become an intrinsic part of the family system.” It exist within the family, as it “transforms, rather than ends, family relationships.” (Antognini, 2014). According to Antognini, family law has come to recognize divorce as routine, capturing as a matter of law the reality of families seeking dis-unity. Even as divorce may continue to be normatively contested, it is anything but novel, or exceptional. There is laws that govern, rules and regulation to be followed during the process of divorce. If the court is satisfied on the evidence that petition has been proved, shall pronounce a decree of divorce. The law ensures the process is done in the rightly manner and every spouse is protected under the law. Children who are under parents that are undergoing through divorce are also protected by the law. Such children are given child support, payment are made by a parent for the financial benefit of the child. In some countries child support is often arranged as part of a divorce, marital separation. Attorneys in this case are hired to present their clients and provide arguments in order to win the case. Child custody decisions may sometime be difficult following a divorce, as parents tend to be distrustful of each other at these times. Judges will always decide custody based on the best interest of the child.

Moreover, family law is also applied in estate planning. The practice area of estate planning law involves the drafting of trusts, powers of attorney, and other documents to facilitate transfer of property after death. When estates are not managed and someone dies without a will, their possession will be distributed to the next kin whereby they will have no say in how the property will be divided. Therefore, family law attorney will be needed to help the families decide to create trusts, which is a documents similar to a will.

In conclusion, family law deal with issues involving family relationships which from the above discussion include adoption, divorce, domestic violence, child support, estate planning and among other. Thus, it ensure safe environment for the victims and protect them where rules and regulations are adhered to.

References

1. Gilmore, S., & Glennon, L. (2018). Hayes and Williams’ family law. Oxford University Press, USA.
2. Dragiewicz, M. (2014). Domestic violence and family law: criminological concerns. International Journal for Crime, Justice and Social Democracy, 3(1), 121-134.
3. Sifris, A., & Parker, A. (2016). Family violence and family law: Where to now?.
4. Antognini, A. (2014). Family Unity Revisited: Divorce, Separation, and Death in Immigration Law. SCL Rev., 66, 1.
5. Herring, J. (2014). Family Law: A Very Short Introduction (Vol. 379). Oxford University Press.

International relationship breakdown and separation have represented critical challenges for Australian international family law. The increase in family dispute means more women fall victim, and it seem that there is very little protection or appropriate legal protection for the victims. Without a doubt Family law is different in each country, and as the number of international family cases increased, so have the disputes involving children and family violence issue.

Family dispute can be very problematic for children, but deadly for women. As family law matter crosses international borders, things can get very complicated; in conjunction with jurisdiction issues creating prolong process adding to the frustration and conflict for the litigants living parents and child who are forced to rely on the system vulnerable. Scholars have written about the issues with family law systems, as the need to protection women becomes more urgent both internationally and locally. Over the pass year’s violence against women is widely recognised as a global problem of significant magnitude that needs to be address.

Though there are many aspect of Australian international family law that are in much need of reform, women protection would be the one aspect that need urgent change.

So why should Australian international family law reform to better protect women? Firstly, there are many reports that show the number of women murdered by the estranged husband despite the fact that the law is involved. When a woman escaping domestic violence to another country with their children due to numerous reasons, they are often face harsh legal penalties. Because Under the Hague Convention on the Civil Aspects of International Child Abduction 1980 As this is considered to be abduction of a child.

While Hague Convention agreement in international family law applied to helping resolve cases of international parental child abduction, it neglect to adequately protection mothers fleeing domestic violence which therefore put the children at harm’s way. Considering that Family law have stated that child’s best interests must be paramount in court proceedings and when making orders, generally, children have a fundamental right to their best interests being a primary consideration in all matters affecting them, as recognised in the United Nations Convention on the Rights of the Child (CRC). How can children’s interest be paramount, if when a mother take their child to safety, the law that supposed to protect that child now works against the mother who is only doing the right thing by them both.

The issues involving family violence and children have been the subject of lawmaker and its time that the domestic violent issues need to be given up most attention. Instead of continually putting to women’s lives and their children’s safety in danger, Australia’s law makers need seriously consider adding domestic violence to regulate under which The Hague Convention. Even more importantly women need to have an access to justice.

Introduction

In Australia, primary legislation is the Family Law Act of 1975 in matters relating to the divorce, property settlement after marriage dissolution or the violation of de facto marriage or spouse maintenance after a party has broken down and the parental arrangements after their separation. The case has data on foreign marriage, their children and property order, and parenting orders between two non-Australian persons. The jurisdiction of the Australian Family Court and of the Federal Circuit Court of Australia will be the focus of the litigation.

The case is Nicholas hills vs. Jane Evans. Both are international citizens. Nicholas is a British citizen till 2002 and moved to Sydney in 2002. He owns property in Britain.

Jane is a New-Zealand citizen but was born in Britain. Both married each other in Fiji while Jane was 18, but in Fiji, the legal age of marriage is 21. With the approval of parents, one can marry under the age of 21. Here in the case of Jane, the misconduct by the marriage planner and the marriage register let the marriage happen without the permission of her parents. They came back to Sydney. Their daughter Nina was born in Australia. Now, Nina claims that the father was not Nicholas, and she married him only for the property. There are no strict parenting rules among them. Nicholas has a frequent traveling history to the UK for his work. Jane is the primary caretaker of Nina. Jane visited her parents in the UK, along with Nina. Coincidentally Nicholas was also there for his work. Jane let Nicholas stay with Nina and returned to Sydney to promise that Nicholas and Nina will come to Sydney after two days of Jane’s return. But Nicholas does not come back with Nina after two days.

Hence Jane has applied for their marriage to annul and in the alternative for a divorce order, for property orders and parenting orders. Now the Family court of Australia has to decide the facts assessing all the terms and conditions regarding the petitioner’s nationality. To answer whether the Australian court has Jurisdiction is to hear the pleas of Jane, the facts and information regarding the laws of international citizen and monetary behavior are required.

Jane is not an Australian; she is born in the united kingdom and a present citizen of New Zealand. Hence the laws and regulations for her will be related to international legalities.

It presume that Jane’s plea concerning the nullity of her marriage and the order for divorce is within the jurisdiction of the family court of Australia. for this answer. The declaration of nullity of the marriage is based on the fact that marriage is invalid under FAMILY LAW ACT of 1975 No.53 of 1975 SECT 51(zero-matrimony).

Here, as mentioned before, the marriage between Nicholas and Jane was done in Fiji. Though there was a miscommunication between the planer and the register, the marriage was legal in Fiji. So the Australian family court cannot order the wedding as null and void. Thus, the alternative plea comes into the play for the divorce order, property, and parenting order.

FAMILY LAW ACT OF 1975 NO. SECT OF 48(divorce) State that the application for a divorce order in respect of marriage under this Act is based on the irretrievable break-down of marriage.

In October 2017, Jane left Nicholas and took Nina with her. After three years of separation, she has applied for the order of divorce. So under the norms of irretrievability, their marriage is broken. Under the provision, A divorce decision shall also be made if, and only if, the court is satisfied that, for a continuing duration of 12 months immediately preceding the date of filing, the parties were separated and after living separately from each other and that they were not living separately.

If the Court is convinced that there is a fair opportunity for living together, the Court will not order divorce. Both the parties have stayed separately from October 2017 to 2020. So the court has the provision for declaring it of divorce.

For the sake of argument, we will assume that the court has Jurisdiction to stay those proceedings. Nicholas has applied this plea. The question remains if the Family court under the law of the Family law act of 1975 can do that.

The courts exercise the Jurisdiction under the Family Law Act 1975, and it has the power to grant a stay of the proceedings. The reason can be a pending foreign proceeding under Section 34 of the Family Law Act 1975 and the court’s internal Jurisdiction to preserve its process from being used to bring injustice. The principle of forum non-conveniens or inappropriate forum test decides the result of the stay of proceedings. The example of henry v henry (1996) HCA 51. It can be referred to here. For an Australian court to consider a ‘clearly inappropriate forum.’ The court has to find that the continuation of the proceeding would be oppressive or vexatious.

The non-exhaustive reasons which are relevant to consider one case for a stay of proceedings:

• When both courts have Jurisdiction.
• Overseas Judgementthat are not from the legislation are customarily recognized and given due respect by the Australian courts.
• Where did the order of proceedings was instituted?
• Which court can provide the best resolution of the matter?
• The connection between the party’s jurisdiction.
• The general circumstance of the case is present.

So, the plea of stay of proceeding will be considered under the lights of these cases. If all these facts answer positively, the Family Court may order of stay of proceeding.

I am assuming that the court is competent and will not order the stay in proceedings.

• (a) To annul the marriage, the Australian Court has to be satisfied that the marriage between Nicholas and Jane was Void. The wedding happened in a very complicated situation. It will require a lot of laws to consider for nullity.

Both the parties married each other under exceptional circumstances. Nicholas was totally against the marriage, while Jane was pregnant. So the wedding happed to justify the pregnancy of both. This marriage took place in Fiji, where the minimum age of marriage is 21. But if the parties come from countries where the minimum age of marriage is 18. As both of them are in a foreign land, they have to follow that nation’s rules.

In Fiji, a minor of 18 ages can marry with the approval of parents. Both Jane’s parents were against the marriage. But coincidentally, the wedding planner forgot to ask Jane about written permission to her parents, and the marriage register did not check whether the approval has been provided. The fault was on behalf of the officials, and none of the parties was guilty of it, so now that Fijian should be discussed about the nullity of the marriage.

But the Australian Court has always been respectful to the other countries Jurisdiction. To order the marriage between Nicholas and Jane, the Australian Family court will consider Fijian marriage laws.

• (b) The Australian Family Court will consider the FAMILY LAW ACT OF 1975, NO. SECT OF 60CA (child’s best interest paramount consideration in making a parenting order). To make a parenting decision, the court must consider the child’s best interest as an essential consideration.

While making such an order, the court will consider two main prospects regarding the order of parenting—first, the benefit of the child of having a meaningful relationship with both of the parents. Second, the child should be protected from being a subject of any physical, psychological, or exposed to abuse or family violence.

Here, in this case, the mother Jane has clarified that Nicholas is not Nia’s biological father. But the relationship between Nicholas and Nina is alike of father and daughter.

On the other hand, though Jane is the primary caretaker of Nina, Jane herself is not an earning member of the family. So the question of maintenance of Nina is instead a significant one. None the less, the court must consider all these factors while delivering the judgment on parenting.

As argued before, the Australian Family court is respectful of the other nation’s constitution and legalities. Under the particular circumstance, if it has been the case that an English Court has granted a divorce in 2020 on Nicholas’ application, on the basis that Nicholas was domiciled and habitually resident in England, the Australian Court will recognize the decree as valid only if At the dates of such proceedings, either or both spouses, as though they had been resident for at least either year before the issuing date, residency or nationality have had appropriate interaction with the foreign jurisdiction ..

However, the approval of the international divorce could be refused, if natural justice has been denied to a party or to a public policy, for example if a party does not have a hearing. So under these circumstances, the court has to decide whether they will recognize Nicholas’ divorce in English Court.

Conclusion

In conclusion, this case is an amalgamation of various exceptional circumstances and needs an astute lawyer to analyze those circumstances. The Family Law Act of 1975 is the primary Act that needs to be concerned. All answers regarding these situations have been specified in the constitution beforehand. Hence, after assessing the laws and circumstances, the Australian Court will provide their decision.

Each and every country has its own set of rules regarded as constitution. Family law is just one of the arms of constitution focusing on family relationships. Adoption of children, divorce and support of children among others, form the definitions of this law. Specialized personnel such as judges, attorneys and lawyers, form part of this law each of them being assigned specific role to ensure no person goes against the legal customary action in place. The same way constitution differs from state to state; family law principles are also unique in every nation. This paper defines family law in details, giving illustration on how it works generally, including the role of each personnel in delivering justice to both victims and perpetrator of family crimes. All in all the principle focus of this paper revolves around family law.

Pre/postnuptial agreements define legal marriage. Voluntary connection between two individuals, who have accepted a contract of staying together as wife and husband, is regarded as marriage. According to Lowe & Douglas (2015), specific procedures are mandatorily followed in issuing legal document (marriage certificate) that recognizes existence of concerned parties as subjects of marriage. The fundamental reasons behind issuing of prenuptial documents, is to ensure easy handling of family disagreements that often arise in future. It acts as evidence in court of law i.e. first consideration before marriage cases examined by judges and lawyers. Spouses are guaranteed certain benefits by law once they have the required documents, Such as equal sharing of wealth obtained while staying together. The next part explains divorce and how this law comes in.

Secondly, divorce is considered legal. This involves spouses ending their contract of staying together as husband and wife (Abrams, Cahn & Meyer, 2015). Annulment judging, dissolving the bonds and legal disuniting the marriages are the basic method family applies to ensure divorce. All the three guarantees each party concerned equal rights such as equal division of wealth. Children are not counted as part of the property, but there are steps followed in providing child custody as explained below.

Lastly, Child custody and support forms part of family law. Huntington (2014) argues that once there is divorce between couples, judge follows a list of criteria according to the law. Parent with greatest bond with the children is given the right to stay with the kids. Factor two involves checking on the mental condition of both parents. Abrams, et al, (2015) emphasizes that once decision is reached, court organizes how one parent will be providing financial, advice and all forms of support to the other parent for the sake of the children. It can also be achieved once the ‘couple’ agrees on how they’ll go about it.

Conclusively, Each and every country has its own set of rules regarded as constitution. Family law is just one of the arms of constitution focusing on family relationships. Adoption of children, divorce and support of children among others, form the definitions of this law (Lowe & Douglas, 2015). Specialized personnel such as judges, attorneys and lawyers, form part of this law each of them being assigned specific role to ensure no person goes against the legal customary action in place. This paper has defined family law in details, giving illustration on how it works generally.

References

1. Abrams, D.E., Cahn, N., Ross, C.J. and Meyer, D.D., (2015). Contemporary family law.
2. Huntington, C. (2015). Postmarital family law: A legal structure for nonmarital families .Stan. L. Rev., 67, 167.
3. Lowe, N. V., & Douglas, G. (2015). Bromley’s family law. Oxford University Press, USA.
4. Abrams, D.E., Cahn, N., Ross, C.J. and Meyer, D.D., (2015). Contemporary family law.

Introduction

Islam is a perfect religion governing all the principles that is required in the human life till the very end of the world. It was sent down by Allah Subhanahu wa ta’aala through His messenger and prophet Muhammad (ﷺ) and preserved by Him in the form of Quran and Sunnah. The Quran and Sunnah serve as a guidance to the mankind in all the walks of their life.

Shariah can be defined as the set of laws ordained by the Creator Himself which are obligatory on every human being to follow in order to be in the right path. These laws are divine and thus infallible.

“Then We put thee on the (right) Way of Religion: So follow thou that (Way), and follow not the desires of those who know not.”

Islamic family law

Shariah mainly deals with the responsibility of the Muslims towards their Creator, other people, himself and the nature. Holding on to the ties of kinship is very important in Islam. Thus, family law is one of the branches of the Shariah which deals with the relationship of the man with his kinship.

Islamic family law includes the matters of marriage, divorce, inheritance, etc. “A’isha reported that the Prophet (ﷺ) said, ‘Kinship (rahim) is derived from Allah. If anyone maintains ties of kinship Allah maintains ties with him. If anyone cuts them off, Allah cuts him off.’”

Marriage

Marriage plays an important part in the life of human beings. Prophet Muhammad Sallallahu Alaihi Wasallam has encouraged people to marry if they are able to. The fact that he married makes the act of marriage sunnah for the people. ‘Anas reported God’s Messenger as saying, “When a man marries he has fulfilled half of the religion; so let him fear God regarding the remaining half.”’

The basic principles of marriage in Islam includes

• It is regarded as honourable
• The marriage should not be done in haste instead it should be done honourably, and with complete trust in Allah Subhanahu wa ta’aala
• The marriage is invalid without the consent of both the spouses
• It is considered the best way to fulfil the natural sexual need of a person.
• It is important to maintain the human race.
• Marriage prevents the people from getting involved into immoralities that would deter the community.
• The permission of the bride’s guardian is necessary for the marriage to be valid.
• The presence of two witnesses is necessary for the marriage to take place.
• A man can marry up to four wives only.
• The marriage allows the spouses to have certain rights over each other

Divorce

Divorce can be defined as the dissolution of the marriage contract. According to the Islamic Family Law, divorce is considered something detestable by Allah Subhanahu wa ta’aala but at the same time it is considered permissible in Islam for the welfare of the people.

Some of the basic principles of divorce are as follows

• Divorce is the last step to an unsuccessful marriage
• Divorce is permissible only when the harm resulting from the marriage is greater than its’ benefit.
• Divorce is valid only when it is issued by a sane and mature person
• The divorce should not be forced.
• The divorce is prohibited when done during the menses of the women.
• After divorce, the husband is not allowed to take back the dowry from the latter.
• After the divorce is issued, three months of reconciliation has been granted in Islam unless it is for the third time.

The relevance of Islamic Family law in dealing with the problems of 21st century

The Islamic Family Law was revealed thousands of years ago. However, the speciality of the Shariah is that it is divine and revealed by the Creator whose knowledge encompasses all things. It is vague and is not limited to particular time. Thus, these laws are applicable even in the modern period.

The following are some of the common family problems faced in the 21st century with the solutions based on the Shariah:

Dispute over money

Money is a big issue in marriage. This issue mostly takes place in the two-income household. One spouse might feel resentment over the other who earns more leading to a bitter competition. The husband might also refuse to spend on the maintenance of his wife because she earns.

Solution: Islam commands the men to spend on their women. “Men are the protectors and maintainers of women…”

Trust issues

The problems in marriage also occurs due to trust issues between the couples. NThis happens when one of the spouses disclose their secrets to a third person while the latter might despise it.

Solution: Islam gives great importance to trustworthiness. “It has been narrated that Prophet (ﷺ) said, “The most wicked among the people in the eye of Allah on the Day of judgment will be those men who divulges their wife’s secrets to others.””

Division of work

The most common problem related to division of work among the couple is that the husbands believe that the household chores are the duties of the women only. The men belief that their self-respect is affected by doing such chores.

Solution: Prophet Muhammad (ﷺ) used to help his wives with their chores. Thus, it is Sunnah.

“Narrated Al-Aswad: I asked `Aisha what did the Prophet (ﷺ) use to do at home. She replied. ‘He used to keep himself busy serving his family and when it was time for the prayer, he would get up for prayer.””

Extra marital affairs

One of the major reasons for the dissolution of marriage contract is the extra marital affairs. There are some men who have strong physical desires and they don’t suffice with the presence of one wife. Thus, their desires take them in the wrong way.

Solution: To prevent such problem, Islamic family law has made the act of polygamy permissible with certain conditions which involve consent of the first wife and financial ability of the man to provide them.

Child custody

Child custody issue is one of the major problems that occurs after the divorce of the parents. The parents are not ready to give up their children to the other. In certain extreme cases, the parent with the custody won’t allow the other to even visit their children.

Solution: The beauty of this religion is evident in the fact that it doesn’t fail to give attention even to the rights of the children. According to Islam, the right of custody of a child belongs more to mother than to father because of the compassionate nature of her and she will be naturally more aware of his needs than him. Whereas, the right of the father is to provide for the maintenance of the child.

Divorce in duress

One of the forms of divorce that is common is “forced divorce.” The husband is forced to divorce his wife by his family who is jealous that he loves her more whereas the husband has no intention to divorce at all.

Solution: Allah Subhanahu wa ta’aala has pardoned professing of disbelief under duress even though it is something very serious. Thus, divorce under duress is considered invalid in Islam.

Conclusion

From the above discussions, it is very clear that the Islamic laws were not revealed for a particular time period or people or place. These laws are binding on every individual till the end of the world. Thus, these laws are highly relevant in dealing with the problems of 21st century.

Reference

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The advancements in birth technology has irreversibly changed the discourse regarding families, for this reason the Australian Legal system must be responsive to these changes, in order to achieve just outcomes for family members and society

Through analysing the legal and non-legal responses surrounding birth technology such as IVF and Sperm donation, it becomes clear that the Justice system has been limited in its ability to provide just outcomes for individuals and society. Technological advancements in birth technology such as IVF and Sperm donation has raised questions in regards to paternity, and has led to legislation in an effort to respond to these changes. The Status of Children Act 1996 (NSW) created the notion of the ‘Presumption of Paternity’, which states that the sperm donor involved is relinquished of parental responsibilities and is handed to the partner of woman impregnated. This introduction of legislation has facilitated just outcomes for families and society, through ensuring better protection of children. This becomes clear through the B v J case (1996), in which a father refused to pay maintenance arguing the child was not his and the maintenance was the donor’s responsibility. The court refuting this argument enacting the ‘presumption of paternity clause’ in the status of children act 1996 (NSW). However in cases where sperm donor involvement is desired, the limitations of the legal system become clear. In the case of Re: Patrick (2002), a sperm donor was restricted contact the child, who desired more interaction against the parent’s wishes. This confirms S65AA of the Family Law Act 1975 – ensuring “the best interests of the child” and just outcomes for the family. In contrast an article published in the ABC outlines a case in which a ‘High Court ruled a sperm donor, the legal father of his daughter’. In which a man agreed to donate to his friend under the belief that he would be involved in the child’s life. The landmark case caused conflict between Commonwealth Family Law Act and NSW state law, and in ensuring the “best interests of the child”, a just outcome was received as the high court ruled the donor the legal father. Therefore, it becomes clear that in relation to birth technology, the australian legal system look out for the best interests of the families, however the lack of consistency in the law creates a major diminishment of justice in society.

Surrogacy

Recent reforms to surrogacy legislation have been extremely effective in ensuring just outcomes for society and family members in regards to Altruistic surrogacy, however has created inconsistencies in regards to legislation jurisdiction. The introduction of the Assisted Reproductive Technology Act 2007 (NSW) allowed for Altruistic surrogacy to be legalised, this form of surrogacy involves no profit or financial transaction in the process. This reform has been a result of the absence of adequate legislation, and in order to protect the “best interests of the child”. This becomes clear when analysing the Re: Evelyn (1998) case; in which a child was removed from prospective parents in NSW and given to surrogate mother in SA. Granted that the Assisted reproductive technology act 2007 addressed issues regarding justice for family members and society, as the best interests of the child were ensured. The act did not address the inconsistencies in legislation jurisdiction , as although NSW has adequate legislation surrounding Surrogacy; Northern Territory has no laws pertaining Surrogacy. This in effect, reduces the effectiveness of the legal system and creates inequalities between states.

Non-legal mechanisms have responded to issues regarding surrogacy and have aided in providing just outcomes for family members and society. This becomes clear through analysing the effectiveness of the media in it’s exploration of overseas commercial surrogacy. This practice has increased in numbers as a result of the Surrogacy Act 2010 (NSW), which effectively banned commercial surrogacy. SBS’s Insight episode, ‘Baby Business’ (2010), exposed the mistreatment and exploitation of overseas women and effectively protected vulnerable women and children from the practice. Furthermore, through involving NGO group ‘Surrogacy Australia’ that advocates for legalising the practice the media source is able to sustain a balanced discussion regarding the issue, whilst maintaining the best interests of the child and women involved. It becomes clear that although non-legal mechanisms are limited in their capacity to enforce the law, they have to ability to raise awareness towards the issue. This is evident through the SMH article ‘Concern over complex laws on surrogacy’, in which through raised awareness of the issue, the Australian immigration department were able to grant citizenship to 14 children born out of commercial surrogacy. Ensuring the best interests of the child and making certain they did not become “stateless orphans”. Therefore it becomes clear that the Australian legislation to a limited extent is able to ensure just outcomes for family members and society in regards to the issue of Surrogacy. Therefore, it becomes clear the strong effectiveness of non-legal mechanisms such as the media in insighting change and exposing issues within the family law system.

Care and protection of children

Another contemporary issue that arises when understanding laws surrounding family, is in regards to the care and protection of children. Children are vulnerable members of society and as such they deserve and are in greater need of higher levels of protection than adults. The inability of the legal system to create effective legislation highlights a major weakness in the justice system to provide just outcomes for family members and society. Despite the legislation Children and young persons act 1998 (NSW), which outlines the procedures in place to protect minors from Abuse and commission reports to the FACS (family and community services), the lack of accessibility reveals the inadequacies of these laws. The ABC article “vulnerable children getting lost in the system” emphasises the lack of effectiveness in providing justice and protection to children at risk of harm. With the report exposing that only “21% of ‘high risk’ children were in contact with a case worker” the remaining 79% becoming lost in the system. Outlining that although the system effectively identifies children at risk, diminishes it’s capability to protect children and society, through its lack of accessibility and practicality.

In contrast , the responsiveness of the Australian Legal mechanisms highlights the ability for the law to create coherent and consistent action in regards to the care and protection of children. This is emphasised through the The Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009, in which comprehensive changes were made by justice Wood in an effort to ’build an integrated system that supports vulnerable children, young people, and their families’ (NSW Gov). These changes were the result of the existing mechanisms and their inadequacies leading to deaths of children. As by 2007, more than 150 children who has previous been reported to Community Service died at the hands of their abusive parent or carer. The changes included a ‘Five year action plan’, which included raising reporting threshold from ‘risk of harm’ to ‘risk of significant harm.’ However, although numbers of children who have died has been reduced significantly (SMH ‘Wood inquiry review’), the effectiveness of such amendments has been heavily debated, due to the lack of funding and heavy strain placed on the system. With Yahoo news reporting in september 2012 a “50% increase in reports of child abuse”. This increased workload has meant that in “2014-15 only 28% of ROSTT reports were completed” and that “child protective staff (were) trying to meet the demand for their help.” This reveals that although the responsiveness of the legal mechanisms is effective in their ability to provide just outcomes to family members and society, the degree of such amendments is limited to the lack of resource efficiency and adequate funding.

According to a 2010 Community Service report, “286,437 reports were made of suspected child abuse and neglect.” High statistics are able to indicate that there is a lack of resource efficiency and accessibility in order to protect the rights of children, stated under the UN Conventions On The Rights Of The Child (CROC) as well as Children and Young Persons (Care and Protection) Act 1998, ensuring no child is subjected to child abuse nor neglect. However, evidence of ineffectiveness can be seen in the media article, “Secluded hills hid a family’s darkest secret”. The article entailed the department’s lack of protection and recognition of children’s rights, involving 12 children under the age of 16 escorted by police and protection officers.

Non-legal mechanisms have strived to compensate for the limitations of the legislation and government facilities surrounding the care and protection of children. This can be concluded through the influence of non-government organisations such as AMA (Australian Medical Association), and their effectiveness in creating just outcomes for family members and society. A media campaign constructed by AMA in NSW has strived to remedy the inadequacies of the legal system, and has proved to become successful in the protecting children from domestic violence and abuse. The ‘Stop the clock’ campaign was launched in 2014 and was aimed at providing medical professionals and individuals within the community, tools and resources to take steps to prevent further abuse. The significance of the media campaign can be comprehended through its impact on children and society, highlighted within SBS article ‘the power of medicine’ in 2015. The article outlined the “40% decrease in reported child abuse – to the Department of child protection”, and idenified the importance of empowering the victims and children, telling them that “it is not their fault”. It becomes clear through non-legal media campaigns such as ‘Stop the Clock’ have the capacity to provide just outcomes for family members and society who are impacted by the care and protection of children. Such conclusions can be drawn, due to the capacity of such programs in reducing the prevalence of domestic violence, providing remedies for victims and alleviating pressure on the government systems.

Part A: Essay questions

1. In what way is the dissenting view of L’Heureux-Dubé J in Re Attorney-General of Canada v Mossop (1993) 100 DLR 4th 658 relevant to the way family law and society work?

In Re Attorney-General of Canada V Mossop, Brian Mossop sort a bereavement leave to attend the funeral of his same-sex partner’s fathers and was denied. The majority held that the Canadian Human Rights Act did not accord him a right to claim leave under the circumstances. However, in the dissenting opinion, Justice L’Heureux-Dube argued that ‘family status’ should include sexual orientation. Critically, her argument that same-sex marriages should be included in the definition of a marriage due to the increase in non-traditional weddings has played a crucial role in the re-definition of family and matrimonial laws. Cory J and McLachlin supported this point of view and advocated for refining the regulations to include same-sex marriages.

2. Is the law on surrogacy in Victoria satisfactory? Discuss.

Victorian law states that a couple may engage the services of a surrogate to carry a pregnancy on their behalf. However, the Assisted Reproductive Treatment Act of the year 2008 has some regulations regarding surrogacy. Critically, the surrogate agreement is meant to ensure that a woman who carries the child agrees to relinquish all the rights to have the child as her own. In my opinion, the law presents a perfect opportunity for all individuals to become parents (Kerridge, Lowe & Stewart, 2009).

Further, the relationship between the potential parents and the surrogate is defined by the Act to prevent misunderstandings of the rights to the child. The fact that the law only regulates gestational surrogacy as opposed to traditional surrogacy leaves makes it ideal for most individuals (Kerridge, Lowe & Stewart, 2009). Importantly, it means that the surrogate mother does not have a genetic connection to the child; traditional surrogacy allows the surrogate to donate an age, linking her genetically to the infant (Kerridge, Lowe & Stewart, 2009). The surrogacy law in Victoria is not satisfactory because the law disregards the surrogate. The surrogate does not contribute an egg and therefore makes the process of getting a child a transaction as opposed to the natural way of life. Surrogacy should give the surrogate a chance to claim the child, even though it is done for other people.

Part B: Scenario

Bumbles are Contemplating Separation

Legal separation or divorce in Australia is regulated under the Family Law Act of the year 1975. Critically, the law establishes a no-fault divorce settlement, which allows the court to disregard the reason for the marriage breakdown when issuing a ruling (Graycar, 2012). Furthermore, the regulation sets the only condition for divorce as a marriage breakdown and that there is no possibility of the couple ever getting back together. Some of the requirements for applying for divorce in Australian courts include the following; the individuals regard themselves as Australian citizens and have a home in the country, they are citizens by birth, descent or grant and finally, that the individuals have lived in the nation for the twelve months before applying (Graycar, 2012). A written notice at the time of separation is critical in proving to the court that divorce took place. Critically, the note might be in the form of a text message or a written letter, and it plays a critical role for the interested party during court proceedings.

Moreover, the couple must demonstrate to the court that they have lived apart for more than twelve months or a year. Under the conditions set by the Family Law Act in Australia, the Bumbles are eligible for a divorce settlement (Graycar, 2012). The couple has lived in separate rooms for more than a year, and their housemates can attest to that in court. The reason for divorce is immaterial under Australian law.

The Situation with Liddy after Separation

Under Australian law, children should enjoy a meaningful relationship with both parents, even after divorce. However, the courts are tasked with the responsibility of ensuring that the child is protected from harm during the divorce settlement (Flood, 2010). It is critical to note that the Family Law Act of 1975 does not consider the gender of parents when allocating custody as the law is gender-neutral. Section 60CA of the Family Law Act states that Australian courts should ensure that the best interests of the child are protected during a custody hearing and decision making. Some critical aspects of the child’s best interest include the protection of physical and emotional harm (Flood, 2010). In the Bumbles case, Spittoon has spanked Liddy with furry on several occasions, causing bodily harm to her, as reported by Dr. Retainer Jones. Australian courts are mandated with protection a child from physical and emotional damage, and therefore, it would be in the best interest of the child to have her custodian as her mother.

The case of Goode V Goode played a critical role in defining the best interests of a child in a divorce hearing. The case involved a couple with two children, aged two and eight years. Moreover, the husband claimed that his wife had taken the kids away from him, denying him his constitutional rights to spend time with the children (Rhoades, Graycar & Harrison, 2001). The wife claimed that the husband was physically abusive, and that was the main reason for denying him the custody of his children. A lower court judge allowed the wife to keep the care of the children and the father to spend time with them during weekends. An appeal to the case led the court to define essential sections of the Family Law Act of 1975, and the importance of the best interest of the child is protected (Flood, 2010).

What Doctor Retainer Should do about Liddy’s Bruising

The use of physical force against children is illegal in Australia. Critically, all disciplinary actions applied to the body of a minor to inflict pain are unlawful and should be reported by all individuals in authority (Ainsworth, 2002). The Children and Young People Safety Act 2017 makes mandatory to report cases of child abuse. Critically, doctors are mandated by the law to report all cases of suspected child abuse or neglect. Therefore, Dr. Retainer should report the matter to the nearest authorities as the bruises Liddy has are a sign of child abuse (Ainsworth, 2002).

Furthermore, after the report is made, Liddy will be considered to be at risk because of the physical damage she has sustained from her father on several occasions. Doctors should examine the medical history of the patient and report any suspicion of the abuse (Ainsworth, 2002). The time and location of injury are immaterial when reporting to the relevant authorities. Different states in Australia have separate legislation mandating individuals in various professions to report cases of child abuse (Dewar, 2010). However, all states mandate doctors to report incidences of suspected child abuse to relevant authorities to ensure the protection of children to physical and mental abuse from their parents and caregivers. Dr. Retainer should report the incidence through child helpline.

Liddy’s Future Medication

Various significant laws that govern children’s rights in Australia, critically, all individuals below the age of eighteen years are considered minors under Australian law (Bird, 2011). Consent in medical procedures is governed by both state and national laws in the country. However, the rules are guided by the maturity of the child and the ability to comprehend the medical procedure and the effects of refusing the process on their health. In most states in the nation, children can give their consent to medical procedures at the age of 16 years (Bird, 2011).

Parents consent to treatment for children below the ages of sixteen if they are satisfied that the medication is in the best interest of the child. The test to determine the ability of a child to consent to medical treatment in South Australia has been modified to include the following requirements. First, the medical practitioner should be satisfied that the child understands the consequences of the decision; secondly, that the opinion of the medical practitioner is supported by written notice from a different doctor in the same field. Liddy and her parents reside in Kew, which is in Melbourne, southern Australia. The Human Rights and Equal Opportunity Act of 1986 regulates the consent of children (Bird, 2011). Critically, Liddy, cannot make decisions regarding her treatment as she has not demonstrated sufficient knowledge of the repercussions the decision would have on her health and life. Furthermore, she has not attained the minimum age of sixteen years allowed by Australian laws to decide on medical procedures (Bird, 2011).

Rights and Obligations in Same-sex Relationships: Gretel and Broomhilda

Australia legalized same-sex marriages since the year 2017. Critically, the Marriage Amendment Act of 2017, allowed individuals of the same sex to marry and live together legally. Consequently, the first same-sex wedding was witnessed in Australia on the 15th of December in the year 2017. Furthermore, a de facto relationship recognition of same-sex marriages accords equal rights and responsibilities to individuals married under the same law (Richters et al., 2014). Therefore, it is critical to note that such an individual’s rights and obligations are similar to those of conventional couples. Gretel and Broomhilda registered their relationship under the Relationships Act of the year 2008 (Dempsey, 2013). Critically, the act was enacted to register and give rights to relationships in Australia. However, the catch is that the law applies to a select group of couples whose relationship broke down before March 1st in the year 2010. The Act accords both Gretel and Broomhilda equal rights to shared property as married couples under the Family Law Act of the year 1975 (Dempsey, 2013).

Australian Surrogacy Laws: Gretel, Broomhilda, and Valery

Current laws allow altruistic surrogacy. Additionally, this means that individuals are permitted to reach surrogate arrangements as long as they do not involve compensation (Klein, 2011). The Assisted Reproductive Treatment Act facilitates surrogate arrangements through an accredited medical institution. Furthermore, the surrogate is expected to relinquish her right to the child and cannot claim the offspring as her own after the procedure (de Visser et al., 2014). Monetary compensation of the whole process is illegal, and couples should make arrangements based on friendships and a genuine need to help (Klein, 2011). Also, doctors must confirm that the couple is medically incapable of bearing a couple through natural means. It is critical to note that surrogacy in Australia exempts genetic connections of the surrogate with the child. Gretel and Broomhilda secured a proxy by the name Valery. Furthermore, the process was done using the correct procedure at the Lotus Fertility Clinic in Richmond. Therefore, Valery renounced her rights to the child before the process and cannot claim the child under Australian law.

Commercial Surrogacy: Gretel, Broomhilda, and Aditi Doshi

Giving monetary compensation for surrogacy is illegal in all Australian states. Furthermore, it is unlawful to make international surrogacy arrangements for all Australian citizens. Critically, this is because Australia is part of both the Hague Convention of the Protection of Children and the United Nations Convention on Children Rights (Millbank, 2015). Both Gretel and Broomhilda seek to arrange with Aditi Doshi from India, who promises to have a child for them in return for monetary compensation for her efforts (Salter, 2014). Commercial surrogacy is outlawed in most Australian states, and the couple could face jail time or harsh monetary fines for their energy. Some of the regulations in the area of commercial surrogacy across Australia include the following; the Parentage Act 2004 imposes a maximum penalty of one-year jail time or a hundred units in the Australian Capital Territory (Millbank, 2015). In New South Wales, the 2010 Surrogacy Act imposes a fine of 2500 units and a maximum of two years prison time for commercial surrogacy. Therefore, the couple should not go forward with the process of getting a baby from India.

Randy Ramble’s Proposed Legislation

The Australian parliament and judicial systems are independent bodies. Further, the court has original jurisdiction in some issues, and the parliament cannot interfere in such matters (Wynes, 1976). Similarly, parliament has original jurisdiction in some topics, such as the formulation of laws, and the courts may not interfere. However, parliament may confer additional powers to courts regarding requirements that challenge the constitution or raise constitutional questions and may require interpretation (Wynes, 1976). Randy Ramble’s case raises several matters of legal importance, and the high court will be tasked with the analysis of the law. Critically, an amendment of the Marriage Act of the year 1961 to allow people to marry robots will be determined by the high court in light of recent technological advancements. The decision of whether or not to accept the draft legislation will be made by members of the judicial bench, with keen consideration of laws and other vital issues.

References

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2. Bird, S. (2011). Consent to medical treatment: the mature minor. Medicus, 51(9), 54.
3. Canada (Attorney General) v. Mossop, 1993 S.C.R.1 554 (1993).
4. Dempsey, D. (2013). Same-sex parented families in Australia. Melbourne: Australian Institute of Family Studies.
5. Dewar, J. (2010). Can the Centre Hold-Reflections on Two Decades of Family Law Reform in Australia. Child & Fam. LQ, 22, 377.
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7. Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990).
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16. Wynes, W. A. (1976). Legislative, Executive, and Judicial Powers in Australia (p. 15). Law Book Company.