scholarly journals An Inheritance Code for New Zealand

2021 ◽  
Author(s):  
◽  
Gregory Francis Kelly
Keyword(s):  
Ad Hoc ◽  
Family Court ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
High Court ◽  
The Family ◽  
Avoidance Measures ◽  
Minor Children ◽  
Inheritance Laws

<p>In this thesis I review New Zealand's present inheritance laws which are characterised by: 20 disparate statutes stretching back 100 years; a lack of clear and consistent policies; a failure to adapt to fundamental changes in life expectancy, re-partnering and family groupings that have taken place over the last 40 years; inconsistent judicial decision-making; dual jurisdiction of the Family Court and High Court; mechanisms to avoid the consequences of the current legislation. Calls for urgent and fundamental reform have been met by piecemeal ad hoc changes. In contrast, reform in Australia has been systematic and carefully analysed. After considering the two common inheritance regimes around the world (the fixed rule scheme and the court-based discretionary system), I reach two fundamental conclusions: adoption of an inheritance code; recognition of the principle of testamentary freedom. In addition I recommend a number of changes to New Zealand's inheritance laws, and in particular: acceptance of the primacy of the position of a surviving spouse or partner; replacement of the current family protection and testamentary promises claims with support and contribution claims; restriction of estate claims to spouses, partners and minor children; recognition of the rights of "accepted children" (stepchildren and whangai); clarification of the ability to compromise and contract out of claims; empowering one court to administer all inheritance laws; anti-avoidance measures; equating the rights of spouses, civil union partners and long term de facto partners on separation. I conclude this thesis with a skeleton of the proposed inheritance code including drafts of some of the key provisions.</p>

scholarly journals An Inheritance Code for New Zealand

2021 ◽  
Author(s):  
◽  
Gregory Francis Kelly
Keyword(s):  
Ad Hoc ◽  
Family Court ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
High Court ◽  
The Family ◽  
Avoidance Measures ◽  
Minor Children ◽  
Inheritance Laws

<p>In this thesis I review New Zealand's present inheritance laws which are characterised by: 20 disparate statutes stretching back 100 years; a lack of clear and consistent policies; a failure to adapt to fundamental changes in life expectancy, re-partnering and family groupings that have taken place over the last 40 years; inconsistent judicial decision-making; dual jurisdiction of the Family Court and High Court; mechanisms to avoid the consequences of the current legislation. Calls for urgent and fundamental reform have been met by piecemeal ad hoc changes. In contrast, reform in Australia has been systematic and carefully analysed. After considering the two common inheritance regimes around the world (the fixed rule scheme and the court-based discretionary system), I reach two fundamental conclusions: adoption of an inheritance code; recognition of the principle of testamentary freedom. In addition I recommend a number of changes to New Zealand's inheritance laws, and in particular: acceptance of the primacy of the position of a surviving spouse or partner; replacement of the current family protection and testamentary promises claims with support and contribution claims; restriction of estate claims to spouses, partners and minor children; recognition of the rights of "accepted children" (stepchildren and whangai); clarification of the ability to compromise and contract out of claims; empowering one court to administer all inheritance laws; anti-avoidance measures; equating the rights of spouses, civil union partners and long term de facto partners on separation. I conclude this thesis with a skeleton of the proposed inheritance code including drafts of some of the key provisions.</p>

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.

Historical Institutionalism and Judicial Decision-Making

2017 ◽  
Vol 70 (1) ◽  
pp. 53-85 ◽  
Author(s):  
Erik Bleich
Keyword(s):  
Decision Making ◽  
Hate Speech ◽  
Analytical Framework ◽  
Historical Institutionalism ◽  
Judicial Decision ◽  
Change Over Time ◽  
Judicial Decision Making ◽  
High Court ◽  
Original Dataset ◽  
Over Time

This article integrates insights from different veins of historical institutionalism to offer an analytical framework that specifies how ideas, institutions, and actors account for key aspects of judicial decision-making, including change over time. To the extent that ideas are widely distributed, highly salient, and stable among actors in the judicial field, they can affect patterns of rulings in a particular issue area. The distribution, salience, and stability of norms, however, may change over time for reasons embedded in the institutional structures themselves. Existing policies, laws, or treaties create the potential for new actors to enter the judicial field through processes that theorists of institutional change have identified as intercurrence, displacement, conversion, layering, and drift. New actors can shift the relative salience of ideas already rooted in the judicial field. This ideational salience amplification can alter patterns of judicial decision-making without the fundamental and often costly battles involved in wholesale paradigm change. French high court hate speech decisions provide the context for the development of this framework and serve to illustrate the dynamic. The author uses evidence from an original dataset of every ruling by the French Court of Cassation regarding racist hate speech from 1972 through 2012 to explain the varying propensity of the high court to restrict speech that targets majorities compared to minorities.

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.

Scale Fitting in the Psychometric Model of Judicial Decision Making

1979 ◽  
Vol 73 (2) ◽  
pp. 430-441 ◽  
Author(s):  
David John Gow
Keyword(s):  
Decision Making ◽  
Ad Hoc ◽  
Behavioral Approach ◽  
Multidimensional Space ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Ideal Points ◽  
Fitting In ◽  
Scalogram Analysis ◽  
Psychometric Model

The psychometric model, developed by Glendon Schubert, is a widely accepted way of conceptualizing judicial decision making. It entails the representation of justices' ideal points in a multidimensional space. A vector (representing the ordering of the justices derived from scalogram analysis) is projected through this space to aid in interpreting the underlying attitudinal dimensions of interagreement. Despite the apparent rigor of this model it contains certain indeterminacies, as no mathematical procedure has been used to determine the location of the scale vectors. Consequently ad hoc. hand procedures which may yield suboptimal solutions have been developed.This article provides solutions for the problem of fitting scale vectors to multidimensional configurations. These solutions are developed for the problem where the scale analogue is treated at the measurement level of interval or ordinal values. In order to demonstrate the advantages of using these procedures, we undertake a reanalysis of Schubert's results (for which he used ad hoc procedures). In one-half of the cases analyzed, the results reported by Schubert are suboptimal when evaluated in terms of the coefficient he sought to maximize. The mathematical solutions and the associated computer programs give greater rigor to the psychometric model and provide a response to the criticism that scale fitting in the psychometric model is subjective and inconsistent with the premises of the behavioral approach to judicial decision making.

scholarly journals Informative Precedent and Intrajudicial Communication

2002 ◽  
Vol 96 (4) ◽  
pp. 755-766 ◽  
Author(s):  
Ethan Bueno de Mesquita ◽  
Matthew Stephenson
Keyword(s):  
Decision Making ◽  
Voting Behavior ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Legal Rules ◽  
Legal Evolution ◽  
Informational Model ◽  
Trial Judges ◽  
The Relationship

We develop an informational model of judicial decision-making in which deference to precedent is useful to policy-oriented appellate judges because it improves the accuracy with which they can communicate legal rules to trial judges. Our simple model yields new implications and hypotheses regarding conditions under which judges will maintain or break with precedent, the constraining effect that precedent has on judicial decision-making, the voting behavior of Supreme Court Justices, the relationship between a precedent's age and its authority, the effect of legal complexity on the level of deference to precedent, the relative stability of rules and standards, and long-term patterns of legal evolution. Perhaps most importantly, we demonstrate that “legalist” features of judicial decision-making are consistent with an assumption of policy-oriented judges.

“The Duty to Act Fairly”: Ethics, Legal Anthropology, and Labor Justice in the Manual Workers Union of Botswana

2014 ◽  
Vol 56 (2) ◽  
pp. 479-507 ◽  
Author(s):  
Pnina Werbner
Keyword(s):  
Legal Anthropology ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Public Sector Union ◽  
High Court ◽  
Legitimate Expectations ◽  
Public Ethics ◽  
Judicial Reasoning ◽  
Court Of Appeal

AbstractThis paper analyses the significance of the Botswana High Court and Court of Appeal judgments of a case in which the Manual Worker Union, a blue-collar public sector union, challenged the Botswana Government to reinstate dismissed workers with all their past benefits. I examine the role of public ethics and morality in Botswana as reflected in key notions used by High Court judges, such as “the duty to act fairly” and “legitimate expectations,” and argue that legal anthropologists have neglected such ideas, despite their having become a bedrock of contemporary judicial reasoning. While anthropology has shown a renewed interest in ethics, issues of public ethics and morality remain relatively unexplored in contemporary legal anthropological debates. One has to go back to the work of Max Gluckman on reasonableness in judicial decision-making among the Barotse to find foundational anthropological insights into the morality and ethics of law in non-Western societies. In the legally plural context of Botswana, notions of equity and fairness, this paper argues, “permeate” the legal landscape.

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.

scholarly journals POLICE, PROSECUTION, COURTS AND WARTIME DEMONSTRATIONS: ADELA PANKHURST IN THE AUSTRALIAN HIGH COURT

2012 ◽  
Vol 23 (1) ◽  
pp. 65-91 ◽  
Author(s):  
Jocelynne Scutt
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
High Court ◽  
Majority Opinion ◽  
Police Powers ◽  
Court Of Justice ◽  
European Court ◽  
Disorderly Conduct ◽  
The Law

Rights of assembly and freedom of speech are a rich ground for decision-making by police, prosecutors and courts in determining a balance with obligations of authorities to keep the peace and prevail against disorderly conduct or riot. Recent claims of abuse of police powers through “kettling” have reached the European Court of Justice. These cases directly address the scope and exercise of police authority in maintaining order during demonstrations. Yet not only police powers are in issue at times of political disputation. Two cases heard early last century by the Australian High Court illustrate the way in which both the decision to prosecute and judicial decision-making may be influenced by socio-political considerations, particularly in time of war. Pankhurst v Porter and Pankhurst v Kiernan saw Adela Pankhurst, youngest daughter in the redoubtable Pankhurst family of Suffragette fame, testing the limits of the law during the struggles to ensure that sending wheat abroad to feed the troops would not justify pricing bread out of the reach of ordinary, working-class households. The success of the appeal in Pankhurst v Porter exposed error in the prosecutorial process. The failure of the appeal in Pankhurst v Kiernan exposed flawed reasoning in the majority opinion and the strength of the dissenting judgment in it’s application of the law to the facts and the need to maintain objectivity or at least neutrality as to the particular appellant.

6. The Structure of the Courts

2019 ◽  
pp. 201-224
Author(s):  
Alisdair A. Gillespie ◽  
Siobhan Weare
Keyword(s):  
Supreme Court ◽  
Family Court ◽  
Privy Council ◽  
England And Wales ◽  
High Court ◽  
The Supreme Court ◽  
The Family ◽  
Family Division

This chapter discusses the organization of the modern court structure and what each court does. The courts in England and Wales (ie excluding the Supreme Court which is a UK court) are administered by a single agency, HM Courts and Tribunal Service. The courts of original jurisdiction (ie which hear trials of first instance) are ordinarily the magistrates’ court, county court, Crown Court, and High Court although they have now been joined by the Family Court. The Crown Court and High Court have both an original and appellate jurisdiction. The High Court is divided into three divisions (Queen’s Bench Division, Chancery Division, and Family Division) and when two or more judges sit together in the High Court it is known as a Divisional Court. The chapter also briefly describes the Judicial Committee of the Privy Council, Court of Protection, and Coroner’s Courts.

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