Legal Studies - Evaluate effectiveness of law protecting alt. family arrangement

[ToChristinaLin]

The effectiveness of the law in protecting members of alternative family arrangements is constantly varying, as reflective of the changing composition of modern families in Australia. An evaluation of these laws can be seen in areas such as single-parent families, same-sex couples, and ART families,where  effective law reform is due fundamentally to a refocus on the most vulnerable group in each case, thus improving legal protection. Despite deficiencies, modern law still addresses, to a competent level, an increasingly well-rounded range of protection for litigants in each case.

In evaluating single-parent family protection under the law, the varying degree of its efficiency can be seen by the centralised protection of children, which were previously not explicit. For the most part, children has been quite effectively protected by law, however past laws have shown a deficiency in balancing the necessary but safe parent-child relationships in separated families. In reflection of changing social values at the time, the “no-fault” divorce doctrine was introduced under the Family Law Act 1975 (NSW). This legislation replaced the Matrimonial Causes Act 1959 (Cth), where once marriage breakdowns had to be proven by acceptable causes (eg. adultery), the only standard of proof was changed to just being at least 12 months of separation. In protecting the interests of both spouses and any child involve, the implementation helped eliminate the hostile nature of divorce. However there was no proper consideration on the government’s behalf to the sharp increase of divorce claims in 1976, as per a report released by the ABS Family Formation: Trends in Marriage and Divorce (1995). As a result of intense backlog, the act failed to foresee the risks of children subject to prolonged violence in domestic abuse situations. This shortfall of child protection thus triggered the Family Law Reform Act 1995 (NSW), which fundamentally enshrined Australia’s domestic obligations to the United Nations Convention on the Rights of the Child (CROC).
Furthermore, the 2006 notion of “equal shared parental responsibility” captured in the Family Law (Shared Parental Responsibility) Amendment Act 2006 enhanced protection for children by its provisions. Specifically only where the “best interests” of the child is upheld are courts obliged to consider either substantial or significant time to be spent with each of the parents. This highlights the law’s attempt to simultaneously satisfy the interests of both the parent and child, where circumstances may allow.  In a more heightened consideration for the most vulnerable being prioritised, protection for them has been bettered to an extent. This is because despite the renewed attempt, backfiring was caused by pervasive misunderstanding and questioning to the still convoluted doctrine. This can be seen in a 2008 study undertaken by the Family Lawyers Survey where respondents were asked to indicate their level of agreement with the proposition that: "The legislative reforms towards shared parental responsibility have benefited children in most cases" The statistics revealed that just over half of the lawyers who participated in the survey (57%) disagreed with this proposition, with only 19% strongly disagreeing.
In addition, the notion was often exploited by abusive fathers in power-imbalanced relationships - where the mother did not wish to be seen as controlling and non compliant with the law. This meant that the “best interests” of the child were often subverted, contrary to the original purpose of the legislation. In The Courier article “I will never be free”: Family Violence victims suffer abuse after separation (2018) the reality of this issue is highlighted.
Thus as more weight were put on the “need to protect a child from harm”, the legislation has only been effective to some, although some protection has been addressed to spouses domestic violence cases.
 
The laws in the increasingly social and legal need to protect same-sex couples has also reflected both ineffective and effective protection for a relatively discriminated group. However much reform in the area more recently  has demonstrated an urgent push for a delayed renewal of laws governing same-sex marriage in Australia. Under the Marriage Act 1961 (Cth), marriage had always been defined as between a “man and a woman”. However the 1990s saw a gradual recognition and also improvement in the legal status of homosexual relationships. Notable events such as the 1992 discussion paper by  the Gay and Lesbian Rights Lobby (NSW) were integral in pushing for changes in the De Facto Relationships Act (1984). As well, the R v McEwens (1996) ruled that the “battered partner syndrome” be applied to same-sex couples, thus expanding same-sex rights. Enhanced protection also stemmed from the Hope & Brown v NIB Health Funds Ltd case, which resulted in entitling health fund access for homosexuals. While such events have rippled some influence in the community and legal realm, it wasn’t until the Property (Relationships) Act 1999 (NSW) that solidified some changes for homosexual couples. The act significantly amended the then existing definition of de facto spouse to include same sex cohabiting couples, and in general, streamlined homosexual and heterosexual rights.

The act also amended other aspects of life for homosexuals such as in family provision, and intestacy.Terms such as ‘marriage-like', 'as his wife' or 'as her husband' were also repealed to eliminate the convoluted explanations of the previous act. As a result this new non-gendered definition of de facto spouses allowed for an unprecedented extension of homosexual rights, highlighting how same-sex protection in Australia has been quite effective.
Fast-forwarding to the more recent Marriage Amendment (Definition and Religious Freedoms) Act 2017 which finally legalised same-sex marriage, the mixed effectiveness of legal protection for same-sex couples can be observed. While there has been widespread acceptance of the family arrangement, a 2019 USyd article titled Study shows same-sex marriage vote damaged LGBT mental health indicated the ongoing detrimental stigma associated with homosexual relationships. The controversial issue of overlapping rights with religious ministers can also be seen in a 2017 news article titled Malcolm Turnbull defends church which axed wedding of bride who supported same sex marriage on Facebook. Both sources thus demonstrate that despite a great step in the decriminalisation of same-sex marriage, the law is still hindered in its effectiveness by its obligations to protect and balance homophobic group rights as well.
Overall several reforms has been made to enhance the protection of same-sex couples throughout the decades. However there are still social limitations and difficulties seen with the notion of same-sex family arrangements.

In the several reforms for legislation pertained to families created via assisted reproductive technology (ART), there has been relatively enhanced protection over the last 20 or so years. Under the current ART Act 2007 (NSW), ART is “any medical treatment or procedure that procures or attempts to procure pregnancy in women by means other than sexual intercourse.” Pre 2007, the Australian society had very few of these services being performed - estimates indicating that only about 3.6% of Australian women received some form of ART treatment according to an Australian Institute of Health and Welfare (2011) report. In having very few effective and adequate codes to address the conduct and delivery of such services then, there was therefore no clear outline of the roles and identity of stakeholders involved (ie the child conceived via ART, the gamete donors, and intended parents). As a result there were much confusion as to the legal responsibilities and status between the intended parents and gamete donors. In response, the NSW government quickly passed the Artificial Conception Act 1984 (NSW), where the newly added protection for ART children is well exemplified in the B v J 1996 case. This was where the court upheld the newly added presumption that the external donor was (and still is) not legally responsible for the child. In addition, the act enabled children conceived via artificial insemination and in-vitro fertilisation the same legal status as those born naturally. In this way the rights, privileges and thus protection of such children has been improved where before there was legal uncertainty. The extension of protection and entitlements for lesbian partners was also introduced in 1996, which eliminated discrimination of non-heterosexual couples wishing to form a family via ART procedures. Contained in the Status of Children Act 1996 (NSW), the new repealing act not only preserved the original protections, but it provided for parentage testing procedures and amendments to other relevant acts. Consequently this has furthered both the ART children and intended parents’ legal recognition.

Furthermore, the Assisted Reproductive Technology Act 2007 (NSW) which commenced in 2010 established core standards which better protected the interests of ART litigants. That is, where previously there was no requirement for the donor to leave identity information (for the intended parents and child to be conceived), there is now a requirement to do so. This was set up in the interests to protect the rights of the ART child to medical attention. In essentially prohibiting anonymous gamete donations, the interests of the most vulnerable (children) are upheld to ensure, for example, that there would not be any unforeseen birth defects or risks associated with the pregnancy of that child. Hence several reforms has taken place in an attempt to address the inadequate laws pertaining to ART families. Following more active reforms in the early 2000s, the law reforms governing both heterosexual and homosexual ART families has overall demonstrated somewhat effective legal protection for them.

In conclusion, the effectiveness of the law in protecting alternative family members vary from area to area. There has clearly been effective reforms leading up to more well-rounded and sensitive protection of vulnerable members in areas like single-parent families, same-sex couples, and ART families. While there are deficiencies in each of these aspects, modern law reform in them has reflected, to a large degree, the ongoing changing values and needs of current Australian society. Thus these factors demonstrate a rather competent and protective legal system for alternative family arrangements in general.