Family Property Division and the Principle of Judicial Restraint

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Patrick Parkinson
Keyword(s):  
Property Rights ◽  
Family Law ◽  
The State ◽  
High Court ◽  
Family Courts ◽  
The Past ◽  
The Family ◽  
The Relationship ◽  
Do So

The Family Law Act 1975 (Cth) provides that judges must not alter property rights on the breakdown of the relationship unless satisfied that it is just and equitable to do so. This is the principle of judicial restraint. In the past, and prior to the 2012 decision of the High Court in Stanford v Stanford, this principle was given almost no effect. The High Court sought to correct this approach, insisting that the family courts should not begin from an assumption that a couple’s property rights are or should be different from the state of the legal and equitable title. It also reaffirmed that there is no community of property in Australia. This article considers the significance of the principle of judicial restraint: first, in cases where the property is already jointly owned and, secondly, in cases where the couple have chosen to keep their finances separate.

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.

A post-colonial patriarchy? Representing family in the Indian nation-state

2009 ◽  
Vol 44 (1) ◽  
pp. 121-144 ◽  
Author(s):  
ELEANOR NEWBIGIN
Keyword(s):  
Property Rights ◽  
Social Order ◽  
Hierarchical Structures ◽  
The State ◽  
Indian Society ◽  
Nation State ◽  
Post Colonial ◽  
The Family ◽  
Personal Law ◽  
The Relationship

AbstractThat the transition to self-governance under a nation-state has not been accompanied by the greater focus on Indian citizens’ welfare which many expected, has been the source of much confusion and disappointment. Looking at late-colonial debates about property rights under Hindu personal law, this paper seeks to explain why people assumed that independence could change the relationship between the state and Indian society, and also why this has not come about. It argues that, from the latter half of the nineteenth century, economic, social, and political changes placed pressure on the very hierarchical structures of joint-family patriarchy that colonial rule had hitherto depended on. Calls for family reform seemed, at certain moments, to critique patriarchal control and social order more generally, creating the intellectual space to rethink the place of women within the family, and the state more widely. Yet, while couched in the language of women's rights, underpinning these reform debates was an interest to change men's property rights and enhance their individual control over the family. Thus, the interwar years witnessed not just a breaking down of an old colonial patriarchal order, but also the establishment of a new, post-colonial patriarchy based around the authority of the propertied husband.

The Right to Protection from Poverty of Children of Divorced Couples

1987 ◽  
Vol 12 (4) ◽  
pp. 11-13
Author(s):  
Richard Ingleby
Keyword(s):  
Family Law ◽  
Child Poverty ◽  
The State ◽  
Legislative Reform ◽  
The Family ◽  
Legislative Activity ◽  
Future Direction ◽  
The Right ◽  
Social Importance ◽  
The Relationship

In this paper I intend to examine ways in which the problem of child poverty might be remedied by legislative reform. The legislative activity taking place at present means that this is a matter of current, as well as social, importance (1). The paper is not intended as an arid academic exercise, but as a contribution to the debate about the future direction of reform in this area. The emphasis of the paper is on the effect of legislative provisions outside the court-room. When more than 90% of divorce disputes are not resolved by judicial adjudication, it is vital to an understanding of the law to examine its out-of-court operation (2). This demands that we consider how the provisions of the Family Law Act are used in negotiations, and the effect of the relationship between parents' rights against each other, and parents' rights against the State. But therefore considering ways in which the interests of children might be protected on divorce, it is necessary to give a brief introduction to the nature of the problem of child poverty and its relationship with matrimonial breakdown.

Effects of Family Coping and Resources on Family Adjustment and Parental Stress in the Acute Phase of the NICU Experience

2000 ◽  
Vol 19 (6) ◽  
pp. 27-37 ◽  
Author(s):  
Janet Pinelli
Keyword(s):  
Acute Phase ◽  
Parental Stress ◽  
The State ◽  
Family Adjustment ◽  
Family Coping ◽  
Family Assessment Device ◽  
The Family ◽  
General Functioning ◽  
First Time ◽  
The Relationship

Purpose: To determine the relationship between family coping and resources and family adjustment and parental stress in the acute phase of the NICU experience.Design: Correlational study based on the Resiliency Model of Family Stress, Adjustment, and Adaptation. Main study instruments included the State Anxiety scale of the State-Trait Anxiety Inventory, the Family Inventory of Resources for Management, the Family Crisis Oriented Personal Evaluation Scales, and the General Functioning subscale of the McMaster Family Assessment Device.Sample: Data collected from 124 mother and father pairs within two to four days of their infant’s admission to the NICU.Main Outcome Variables: Family adjustment and parental stress.Results: Adequate resources were more strongly related to positive adjustment and decreased stress than were either coping or being a first-time parent. The relationships among the variables were generally the same for both parents. Mothers utilized more coping strategies than did fathers.Practice Recommendations: Families with limited resources should be identified early to facilitate their adjustment to the NICU.

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.

scholarly journals Identification of grain areas replaced by sugarcane and analysis of the relationship with family farming production in the state of Goiás

2014 ◽  
Vol 34 (6) ◽  
pp. 1296-1306 ◽  
Author(s):  
Maria A. Petrini ◽  
Jansle V. Rocha
Keyword(s):  
The State ◽  
Family Farming ◽  
Food Acquisition ◽  
Family Farmers ◽  
Annual Crops ◽  
Sugarcane Crop ◽  
The Family ◽  
Data Tables ◽  
Agricultural Areas ◽  
The Relationship

In Brazil, the State of Goiás is one of sugarcane expansion's frontiers to meet the growing demand for biofuels. The objective of this study was to identify the municipalities where there were replacement of annual crops (mainly grains) by sugarcane in the state of Goiás, as well as indicate correlations between the sugarcane expansion and the family farming production, in the period between 2005 and 2010. For this purpose, grains crop mask and sugarcane crop mask, obtained from satellite images, were intersected using geoprocessing techniques. It was also used IBGE data of sugarcane production and planted area, and data of family farming production linked with the National Food Acquisition Program (PAA), in relation to the number of cooperatives and family farmers. The crops masks and data tables of the National Food Acquisition Program were provided by National Food Supply Agency. There were 95 municipalities that had crops replacement, totaling 281,554 hectares of grains converted to sugarcane. We highlight the municipalities of Santa Isabel, Iaciara, Maurilândia, and Itapaci, where this change represented more than half of their agricultural areas. In relation to family farming, the sugarcane expansion in the state of Goiás has not affected their activities during the period studied.

scholarly journals TALKING ABOUT RAPE – AND WHY IT MATTERS: Adjudicating rape in the Western Cape High Court

2016 ◽  
Author(s):  
Stacy Moreland
Keyword(s):  
Criminal Law ◽  
Institutional Factors ◽  
Western Cape ◽  
Sexual Offences ◽  
High Court ◽  
The Law ◽  
The Relationship ◽  
Selection Of ◽  
Do So

This article asks the question: how do judges know what rape is and what it is not? The statutory definition contained in the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 (SORMA) guides courts in adjudicating rape cases, and as such the definition is theirs to interpret and implement. This article analyses a small selection of recent judgements of the Western Cape High Court2 (WCHC) for answers. The article begins by establishing why judgements are an important source for understanding what rape means in society at large; it then discusses the relationship between power, language, and the law. This is followed by specific analyses of cases that show how patriarchy still defines how judges express themselves about rape. It concludes by looking at the institutional factors that discourage judges from adopting new ways of talking about rape, and their constitutional mandate to do so.

scholarly journals Evolution of the Concept of Citizenship in the Islamic Thought: An Analysis

2020 ◽  
Vol 2 (1) ◽  
pp. 121-141
Author(s):  
Osama Sami AL-Nsour
Keyword(s):  
The State ◽  
The Past ◽  
Islamic Thought ◽  
State And Society ◽  
The Government ◽  
The One ◽  
The Individual ◽  
Islamic Civilization ◽  
Political Economic ◽  
The Relationship

The concept of citizenship is one of the pillars upon which the modern civil state was built. The concept of citizenship can be considered as the basic guarantee for both the government and individuals to clarify the relationship between them, since under this right individuals can acquire and apply their rights freely and also based on this right the state can regulate how society members perform the duties imposed on them, which will contributes to the development of the state and society .The term citizenship has been used in a wider perspective, itimplies the nationality of the State where the citizen obtains his civil, political, economic, social, cultural and religious rights and is free to exercise these rights in accordance with the Constitution of the State and the laws governing thereof and without prejudice to the interest. In return, he has an obligation to perform duties vis-à-vis the state so that the state can give him his rights that have been agreed and contracted.This paper seeks to explore firstly, the modern connotation of citizenship where it is based on the idea of rights and duties. Thus the modern ideal of citizenship is based on the relationship between the individual and the state. The Islamic civilization was spanned over fourteen centuries and there were certain laws and regulations governing the relationship between the citizens and the state, this research will try to discover the main differences between the classical concept of citizenship and the modern one, also this research will show us the results of this change in this concept . The research concludes that the new concept of citizenship is correct one and the one that can fit to our contemporary life and the past concept was appropriate for their time but the changes in the world force us to apply and to rethink again about this concept.

Judges in the Protection Orders and Family Law Systems

2021 ◽  
pp. 184-214
Author(s):  
Heather Douglas
Keyword(s):  
Intimate Partner Violence ◽  
Legal System ◽  
Partner Violence ◽  
Child Custody ◽  
Family Law ◽  
Physical Violence ◽  
Intimate Partner ◽  
Family Courts ◽  
Protection Orders ◽  
The Family

This chapter explores women’s interactions with judges when they appeared before them in relation to protection orders and child custody orders after experiencing intimate partner violence (IPV). Commonly women identified that judges prioritized physical violence and minimized other forms of abuse and that they seemed to align with abusers, discounting the women’s experiences of abuse. Women identified that judges often lacked preparation for hearings, rubber-stamped witness subpoenas, and failed to stop irrelevant witness examination. They explained how these approaches facilitated their partner’s misuse of the legal system as a tactic of abuse. Women also discussed how judges, especially in the family courts, prioritized fathers’ rights to contact with children over safety. However, women’s stories also demonstrated resistance to their abuser’s control over them through the courts, and their efforts to ensure the safety of their children regardless of court orders.

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