Hey davidss! Thanks for posting!! I've attached your essay below with comments in bold:
Essay with Feedback
The law has been partially effective in achieving equality, fairness and access – which form the notion of justice – for married and de facto couples and their children during relationship breakdowns through an examination of the law’s capacity to protect individual’s rights. A little unclear in that sentence - I think it flows better to say it like, "To be truly effective in achieving protecting individual rights, the law needs to provide just outcomes. The legal system has been partially effective in achieving equality, fairness and access to this end, blah blah blah." Splitting in two gives it more clarity. It provides guidance to parties during the lead up to and actuality of a breakdown. Not super relevant/beneficial to the intro. The law also ensures a provision of comprehensive arrangements for children, and provides means of the allocation of property following relationship breakdowns. Don't describe the measures, analyse them! Do they work and why? However, the range of avenues that is facilitated by the law, coupled with continuous reforms to statute law, and to a lesser extent common law induces greater complexity and inconsistency that impedes the achievement of justice. This last sentence is great! Looking for a more definite conclusion: "Thus, it can be said that _________."
Divorce orders and non-court based services have been partly effective in achieving justice by providing guidance to parties in relationship breakdowns. Excellent intro. According to the Family Law Act 1975 (Cth), no party is legally bound to a relationship and due to the no-fault divorce principle espoused, it has enabled “the empty legal shell to be destroyed with the maximum fairness” as university academic Brohier writes in the 2015 Austlii journal. Nice use of LCTMI in a really fluent way there, normally I'd say to avoid description of the law, but I think this works well. As per s48, a divorce order is approved by the court once the applicants provide evidence that “The marriage has broken down irretrievably.” This entails 12 months of separation, which was breached in Campbell v Case (2012) due to a continued sexual relationship. Be careful, you aren't evaluating here! What worked? What didn't? Effective or ineffective and why? On the other hand, since de facto couples are not recognised as a legal marriage under S4AA, they are not legally required to go through the arduous process of a breakdown. Evidently, there is inequality and unfairness as a married couple essentially emulates a de facto but has to endure longer emotional trauma. Nice! Accessibility has been improved for parties experiencing financial hardship through reductions from $865 to $265 for the filing fee of a divorce order. Source for this? Just an interesting stat, it would have more weight if it had a reputable source. However, the 2009 Attorney-General’s Department report ‘A Strategic Framework for Access to Justice in the Federal Civil Justice System’ reported that 2% of waivered fees represented legal aid exemptions. The unfair and inadequate protection of vulnerable litigants’ rights have been emphasised by the Australian article: ‘Divorce fee too high for poor,’ reporting that Women’s Legal Services found that the $265 fee comprised “over 80 per cent of the weekly single parent payment.” Again, love the variety of evidence! This lack of fairness and failure in protecting rights is also apparent where children of de facto couples are neglected in that s55A stipulates proper arrangements must be made for the welfare of children only from married couples, before divorce orders are granted. Non-court based services are facilitated via family counselling in S10B and family dispute resolution, evinced in S10F. While the sections are impressive, describing the purpose of each isn't going to earn you points! Relationships Australia for instance provides family counselling services, and with family dispute resolution, they provide parties with emotional support. These services are accessible to parties during any stage of the breakdown, and are fair as each hearing considers party’s different circumstances and promotes cooperation between parties which improves future relationships with children. Ultimately, the complexity and inconsistency of the legal framework has undermined individual’s rights and has thus partially achieved justice in breakdowns.Really solid paragraph - Evidence is phenomenal. Watch that you are always evaluating, not just describing, the legal frameworks.
The law has been partly effective in achieving justice for de facto and married couples in terms of allocating property after relationship breakdowns. One avenue that the law facilitates are financial agreements, established under s90B-S90BD for married couples, and following the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, s90UB-S90UD for de facto couples. Its high accessibility is continued as agreements can be formed at any time and are legally binding without courts. Nice, you introduce the mechanism then immediately evaluate. Consequently, the law has placed stringent criteria to protect parties’ rights. For instance, s90G outlines that two lawyers are required as advisers. This brings forth issues of equality and fairness in that those with less financial power are prone to loopholes in agreements. Further complexities pertinent to financial agreements have led to them being set aside, as in Black v Black (2008). This prompted the Federal Justice System Amendment Act (2009), allowing courts to apply discretion in upholding agreements even when technicalities are not adhered to. Was this an effective or an ineffective change? Evaluate EVERY piece of evidence you present. The ABC article (16/5/16) also suggests that a “lack of government funding” in Legal Aid for family matters is “destroying lives,” thus inhibiting access to justice. This is reinforced by a report from the University of Adelaide, detailing that woman receive 9%, compared to the 61% ex-partners receive of marital assets, yet when legal aid was used, there was an estimated average of a 55/45% split. Thus demonstrating, what? How does this relate? Be careful not to go onto "content vomits," where although you have amazing knowledge, you aren't using everything in the most effective way! Courts also have the power of arbitration to resolve disputes in property allocation, accessible for both de facto couples under s90F, s90M and S75, s79 for married couples. Specifically, s79 pursues fairness, where “the court may make such order” of the alteration of property interests. However, due to the no-fault divorce principle, emotional strain has been unfairly dismissed as a factor in determining property allocation. This is in light of research by the Australian Institute of Family Studies, with 24% of men and 12% of women feeling isolated after 2 years of divorce. Greater need to protect individual’s rights has seen domestic violence and other misconduct be factored into property allocation, evident in Kennon v Kennon (1997). However, this has led to contradictions in other cases, such as Palmer & Palmer (2010), which dismissed the principles in the Kennon case as obiter dicta. Although reform has been made to improve the protection of rights, inadequate consideration of parties for parties in statute law, in addition to the inconsistencies arising in common law have culminated in a partial effectiveness of achieving justice in breakdowns. Another AMAZING paragraph for evidence, and a little better analytically, but still work to do there. I want you to take more time to evaluate each piece of evidence/group of evidence, explain how it relates to your argument. Basically, you are throwing a few dozen $2 cheeseburgers from Maccas at me. I want half a dozen Big Macs!
The law’s facilitation of comprehensive child arrangements have been moderately effective during relationship breakdowns. In line with Australia’s international and natural law obligation to forefront children’s rights during breakdowns, article 3 of the Convention on the Rights of the Child (1989) stating “the best interests of the child shall be a primary consideration” have been embedded into s60B of the Family Law Act 1975 (Cth). Nice - It is really easy to forget treaties in the Family option. Excellent work for including them. One arrangement adopting this notion are parenting plans, established under s63B with access branching to both de facto and married couples. Regarding these plan’s fairness, the National Alternative Dispute Resolution Advisory Council’s has written they are “capable of easy alteration to meet the changing needs of the child” and can identify potentially contentious issues “in as a positive a way as possible.” However, in a 2009 report by the Australian Psychological Society ‘Parenting after separation,’ only 25% of parents have a cooperative relationship, thus limiting the protection of children’s rights. Good. In response, the law has established legally binding parenting orders under s64B, again accessible to all parties, which strives to improve fairness and equality by placing the onus on the courts to determine child arrangements. Good - Nice use of the key terms 'accessible, fairness, equality' etc. Watch for emotive language, "strives" rings an alarm for me. As written in the Australian (6/2/2010), parental responsibility has been another issue in arrangements for children - The AIF reported that before 2006, there was a “presumption in favour of an 80:20 outcome” for mothers, clearly deviating away from an equal and fair protection of children’s rights to both parents. Excellent. Consequently, the Family Law Amendment (Shared Parental Responsibility) Act 2006 was introduced, establishing equal shared responsibility to encourage children to maintain meaningful relationships with parents. This improved fairness in that judicial discretion is used to determine parental responsibility based on greatest caring capacity, but crucially still maintaining a parental relationship for children’s development. At the same time, this exposes children to domestic violent parents, as was the case in Robins v Ruddock (2010), where the two daughters were ordered to spend a small amount of time with their father, a convicted child sex offender, frankly neglecting their protection. THIS is the perfect level of detail. See how you are properly explaining and analysing this argument you are leading us through? This is the perfect balance. A 2013 Family Matters publication recounted that there was likely to be “entrenched conflict” from shared responsibility beyond the relationship breakdown. This prompted the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, wherein the “need to protect the child from physical or psychological harm” has greater weight than a meaningful parental relationship, consequently improving fairness for children. Whilst arrangements for children are paramount, MRR v GR (2010) highlights how the law protects parent’s rights where shared responsibility was impractical to uphold equal shared responsibility due to the deteriorating circumstance of a party. Therefore, while there are still issues that must be addressed regarding arrangements for children, the law has reasonably achieved justice for them in relationship breakdowns. This is probably your strongest paragraph - The argument was more fleshed out than the prior two. Nicely done.
Overall, the Family Law Act has primarily established the foundation for providing guidance, comprehensive arrangements for children and allocating property during relationship breakdowns. Issues of inconsistency and complexity are still prevalent for the protection of individual’s rights, and therefore, the law has been partially effective in achieving justice. I'd normally like a beefier conclusion, but I think this does the job reasonably well.
Incredible essay David, truly stellar stuff. Your evidence is just, well, incredible. Probably the best essay in terms of breadth and depth of Legal evidence I've read in a long time. Well done!
need to work on is what you do with that evidence. I wrote in a comment, you are giving me a few dozen $2 cheeseburgers in those first two paragraphs. You cram a HEAP of evidence in, and that's great, but you don't do much to link them to your argument. It's either missing or implied. What I want you to do instead is give me just a few Big Macs, some groups of evidence that logically flow together and are linked cleverly to your argument. YOu did this well in your final paragraph!
hard to get them, but I don't feel the section numbers are adding a whole lot for you, in
of the cases you use them. Sometimes they work, sometimes they just seem like they are adding clutter to your response. Try it out - It could be smoother to remove some of them and just reference the law itself. Additionally, watch for places (early half primarily) where you are just describing the mechanism. Don't do that - Cut it and jump straight into judging it, providing only the barest of details as to what it actually is
Fantastic essay though my friend, easily strong Band 6 material if you tidy up how you use that evidence