Custody Jurisdiction in the Family Court

1981 ◽  
Vol 12 (4) ◽  
pp. 281-307
Author(s):  
Owen Jessep ◽  
Richard Chisholm*
Keyword(s):  
Family Law ◽  
State Courts ◽  
Family Court ◽  
High Court ◽  
The Family ◽  
Difference Of Opinion ◽  
Considerable Confusion

Considerable confusion and difference of opinion exists as to the precise boundaries of jurisdiction in custody matters between Federal and State courts. This Article examines the main cases in which the scope of the Family Court's custody jurisdiction has been in issue, and reviews suggestions made to remedy the problems resulting from the division of jurisdiction. The authors argue for an interpretation of the relevant provisions of the Family Law Act 1975 (Cth) which is consistent with the trend of High Court authority as to the scope of the marriage power (section 51(xxi) of the Constitution), and which would remove much of the uncertainty concerning the Family Court's jurisdiction.

scholarly journals Family Law, Involuntarily Separated Couples and their Property

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Robyn Carroll
Keyword(s):  
Cognitive Decline ◽  
Family Law ◽  
Third Parties ◽  
Family Court ◽  
High Court ◽  
Financial Decisions ◽  
The Family ◽  
Legal Position ◽  
High Court Of Australia

This article considers the implications for parties to a marriage and their property when they are forced to separate as a result of ill health. This has particular relevance for elderly Australians who experience declining health accompanied by cognitive decline and loss of decisionmaking capacity. The potential for the property interests of the couples in these circumstances, to be altered by family law proceedings, has been confirmed by the High Court of Australia in Stanford v Stanford. The door to the Family Court is open for financial proceedings to be brought on behalf of a party to a marriage who no longer has the capacity to make financial decisions for him or herself and who has financial needs that cannot be met from their own property. The article examines the legal position of couples when third parties are contemplating the commencement of proceedings in the Family Court for financial orders.

Reconsidering Independent Advice: A Framework for Analysing Two-Party and Three-Party Cases

2020 ◽  
Vol 43 (1) ◽  
Author(s):  
Felicity Maher ◽  
Stephen Puttick
Keyword(s):  
Family Law ◽  
Undue Influence ◽  
High Court ◽  
General Law ◽  
The Family ◽  
New Framework ◽  
Key Questions

What is the significance of the receipt of independent advice by the plaintiff in a claim to set aside a transaction on the basis of a vitiating factor – such as duress, undue influence or unconscionable conduct? The generally held view has been that it is highly significant. Indeed, the receipt of advice has been understood as an answer to many such claims. The High Court of Australia’s decision in Thorne v Kennedy apparently changes this. Although that case concerned advice in relation to binding financial agreements under the Family Law Act 1975 (Cth), the decision has important implications across banking, commercial and other areas of practice. This article, then, offers a reanalysis of this question in light of this decision and other developments. The authors propose a new framework – based around two key questions – for conceptualising the function and significance of independent advice in a particular case. The article considers and develops this framework with regard to the main general law vitiating factors in both two-party and three-party cases.

The Importance of Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure

2017 ◽  
Vol 45 (1) ◽  
pp. 97-125
Author(s):  
Hugh P K Kopsen ◽  
Robyn Carroll
Keyword(s):  
Family Law ◽  
Civil Litigation ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Full Disclosure ◽  
High Court ◽  
Disclosure Requirements ◽  
The Family ◽  
The Many ◽  
Do So

This article examines the duty of full and frank disclosure of parties to family law financial proceedings in Australia, and the potential consequences of failure to comply with this fundamental obligation. The duty is briefly compared and contrasted with disclosure requirements in civil litigation and criminal proceedings to demonstrate the uniqueness of the family law position. The rationale and content of the duty is considered in light of recent cases including the High Court decisions of Stanford v Stanford (2012) 247 CLR 108 and Hall v Hall (2016) 257 CLR 490. The article presents a three-pronged taxonomy of the consequences of non-compliance with the duty, namely evidential, procedural, and final orders/related consequences. We conclude that the absolute nature of the duty and the comprehensive nature of the potential consequences of failure to make full disclosure mean that parties and legal practitioners do so at their peril.

scholarly journals Bill Atkin: A Fierce Defender of Children's Rights and Proponent of Child-Focused Legislation

2015 ◽  
Vol 46 (3) ◽  
pp. 591
Author(s):  
Mark Henaghan ◽  
Ruth Ballantyne
Keyword(s):  
Child Support ◽  
Family Law ◽  
Well Being ◽  
Family Court ◽  
Physical Discipline ◽  
Court System ◽  
The Family ◽  
Legislative Reforms ◽  
Children’S Views ◽  
Made In

This article illustrates the different ways in which Professor Bill Atkin has shown where family law legislative reforms have fallen short in making the rights and well-being of children the paramount consideration in family law disputes, and properly taking account of children's views on matters that affect them. It examines Atkin's thought-provoking analysis of the introduction of the Care of Children Act 2004 and the changes made in recent years to the Child Support Act 1991, the Property (Relationships) Act 1976 and the Family Court system as a whole. The article also explores Atkin's approval of the amendments to the Crimes Act 1961 preventing parents from using physical discipline against their children for the purposes of correction. Overall, the article highlights Atkin's extensive contribution to family law and demonstrates what needs to be changed to ensure New Zealand family law and society becomes more child-focused in the future.

scholarly journals Multi-disciplinary practice in a community law environment: new models for clinical legal education

2014 ◽  
Vol 19 ◽  
pp. 413 ◽  
Author(s):  
Richard Foster
Keyword(s):  
Family Law ◽  
Legal Education ◽  
Law Students ◽  
Academic Disciplines ◽  
Family Court ◽  
Legal Services ◽  
Legal Service ◽  
Financial Difficulty ◽  
Assistance Program ◽  
The Family

<p>The Monash-Oakleigh Legal Service (MOLS) is a community legal service auspiced by Monash University, Melbourne Australia, and partly funded by Victoria Legal Aid. MOLS was principally established to provide practical legal education to Monash law students over 30 years ago, but has since evolved to focus also on serving community legal needs. Incorporated within MOLS is the Family Law Assistance Program (FLAP) which, as the name suggests, deals exclusively with family law matters. FLAP students attend the Family Court each week with lawyers who provide assistance to clients in a duty lawyer capacity, as well as operating four clinical sessions each week within MOLS.</p><p>Like many community legal services, most MOLS clients experience a form of disadvantage and resultant financial difficulty. Consequently, MOLS deals with a range of legal matters including: criminal law, family law, tenancy and neighbourhood disputes, and a number of credit, debt, and<br />bankruptcy issues.</p><p>In July 2010, the Multi-Disciplinary Clinic (MDC) was established at MOLS to provide a holistic service to clients by involving students from three academic disciplines to deal with client issues. Later, in December 2010 (the commencement of the university’s summer semester), students from one other discipline were included in FLAP and a third discipline was also adopted in the following semester.</p>

1. Introduction to Family Law

2015 ◽  
Author(s):  
Sonia Harris-Short ◽  
Joanna Miles ◽  
Rob George
Keyword(s):  
Family Law ◽  
State Intervention ◽  
Family Court ◽  
Sex And Gender ◽  
Private Ordering ◽  
The Family ◽  
Rules Versus Discretion ◽  
And Gender ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with an overview of families and family law in England and Wales today. It then discusses themes and issues in contemporary family law, covering rules versus discretion; women’s and men’s perspectives on family law; sex and gender identity; sexual orientation; cultural diversity; and state intervention versus private ordering, including the role of the family court and of non-court dispute resolution in family cases.

scholarly journals Implementing the Law of khulʿ in Egypt

Hawwa ◽  
2020 ◽  
Vol 18 (2-3) ◽  
pp. 265-294
Author(s):  
Monika Lindbekk
Keyword(s):  
Family Law ◽  
First Century ◽  
Family Court ◽  
Scholarly Literature ◽  
Legal Professionals ◽  
Early Twenty ◽  
The Family ◽  
Family And Marriage ◽  
Family Court Judges ◽  
Male Authority

Abstract This article aims to contribute to the growing scholarly literature on the implementation of shariʿa-based family law codes by describing and analyzing the gender implications of religiously inspired judicial activism in relation to judicial divorce through khulʿ. The article highlights two functions played by family court judges and other legal professionals. First, I argue that Egyptian family court judges and other court personnel, such as court experts and court-appointed arbiters from al-Azhar, enjoy considerable discretion in interpreting and implementing the personal status codes. Second, the article argues that legal professionals sometimes use the court and other legal spaces as a platform to articulate alternative visions of family and marriage, as well as to voice anxieties over a perceived increase in female-initiated divorce. The article situates these contradictory practices against the background of the contestation of early twenty-first-century reforms, which challenged male authority in the family, in particular the 2000 law of judicial khulʿ.

7. The family justice system

2021 ◽  
pp. 197-217
Author(s):  
Martin Partington
Keyword(s):  
Domestic Violence ◽  
Child Support ◽  
Justice System ◽  
Family Law ◽  
Institutional Framework ◽  
Family Court ◽  
Legal Aid ◽  
System P ◽  
The Family ◽  
Domestic Violence And Abuse

This chapter discusses the family justice system. It considers the role law plays in regulating the family. The chapter covers the institutional framework of family justice and its transformation. It notes the creation of the Family Court and the pressures on that court. It reviews the remedies which are available in that court, in particular those relating to the protection of children. The chapter briefly considers adoption. It considers other matrimonial matters, in particular the introduction of no-fault divorce and the financial effects of divorce. It considers policy relating to child support, and notes changes to ways of dealing with domestic violence and abuse. It considers the legal practitioners involved in family law issues and how they seek to deal with family disputes on a less adversarial basis. The effect of changes to legal aid for funding for family law cases is discussed.

7. The family justice system

2019 ◽  
pp. 191-209
Author(s):  
Martin Partington
Keyword(s):  
Domestic Violence ◽  
Child Support ◽  
Justice System ◽  
Family Law ◽  
Institutional Framework ◽  
Family Court ◽  
Legal Aid ◽  
System P ◽  
The Family ◽  
The Creation

This chapter discusses the family justice system. It considers the role law plays in regulating the family. The chapter covers the institutional framework of family justice and its transformation. It notes the creation of the Family Court and the pressures on that court. It reviews the remedies which are available in that court, in particular those relating to the protection of children. The chapter briefly considers adoption. It considers other matrimonial matters, in particular the financial effects of divorce. It considers policy relating to child support, and notes changes to ways of dealing with domestic violence. It considers the legal practitioners involved in family law issues and how they seek to deal with family disputes on a less adversarial basis. The effect of changes to legal aid for funding for family law cases is discussed.

scholarly journals Consent to Treatment for Transgender and Intersex Children

2004 ◽  
Vol 9 (2) ◽  
pp. 376-397 ◽  
Author(s):  
Kate Parlett ◽  
Kylie-Maree Weston-Scheuber
Keyword(s):  
Hormonal Treatment ◽  
Family Court ◽  
High Court ◽  
Gender Reassignment ◽  
The Family ◽  
Consent To Treatment ◽  
Congenital Condition ◽  
The Subject ◽  
Consent To Medical Treatment ◽  
A Minor

More than a decade has passed since the landmark High Court decision in Marion’s Case,1 where the Court authorised the sterilisation of a young woman who suffered from a disability. Recently, the principles established in that case were applied by the Family Court in a different context – for the provision of hormonal treatment for a 13 year old child,2 some aspects of which are irreversible. Previously, the Family Court had authorised gender reassignment surgery for a child suffering from a physical, congenital condition,3 but notably in Re Alex, the subject child suffered no identified physical condition indicating treatment, but from an identified psychological condition, gender identity dysphoria. This article considers the issues raised by recent applications of the principles relating to the capacity of children to consent to medical treatment, including the decision in Re Alex and the application of those principles to transgender and intersex children. While not all children or adults who identify as transgender or intersex choose the long and difficult path of gender reassignment, some will choose surgical gender reassignment or hormonal treatment at some stage of their lives. In cases where it is proposed that a minor undergo such treatment, the application of the principles of child consent poses particular difficulties.

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