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Discuss the difficulty of defining ‘family’ and the changing concepts of family
The rise of the nuclear family
Nuclear family no longer the norm
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In this day and age there are many variations of what constitutes a couple or family in comparison to many years ago. Long ago the idea of a ‘nuclear family’ was considered the norm; it consisted of the conventional husband, wife and children . But as our society progressed through the years this definition became less conventional and criticisms were made, this definition of ‘family’ did not account for gay unions, soul parents nor did it acknowledge the prevalence of extended family. The definition of family has changed over time, as have the socially defined roles of mothers and fathers. Within these varied family units, situations occur in which divorces and separations take place and a lot of the times these tricky situations may involve children, which can make an already tricky situation even more problematic. There are pieces of legislation which are in place which aim to protect the best interests of a child during the time their parents are going through divorce but sometimes these avenues can be more problematic and ultimately destroy unions whereas other avenues of dispute resolution such as mediation, albeit with its own criticisms, helps to keep relationships afoot in that it provides an opportunity for peaceful and mutual agreements to be made in a more laid back environment.
In the Commonwealth of Australia’s Constitution Act s 51, powers of the Commonwealth Parliament to legislate on family law subjects is laid out, it states:
“The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxi) Marriage: (xxii) Divorce and matrimonial causes; and relation thereto, parental rights and the custody and guardianship of inf...
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...amily Law, 4th edn, Lexis Nexis, Australia
McDonald, P 1984, Can The Family Survive? - Change in Australia, Discussion Paper no. 11, Australian Institute of Family Studies, accessed 10 April 2012 http://www.aifs.gov.au/institute/pubs/dp11.html
Commonwealth of Australia Constitution Act s 51, Prepared 2003,
Accessed 3 April 2012, http://fedlaw.gov.au/comlaw/comlaw.nsf/440c19285821b109ca256f3a001d59b7/57dea3835d797364ca256f9d0078c087/$FILE/ConstitutionAct.pdf
Commonwealth Consolidated Acts, Family Law Act 1975, Australasian Legal Information Institute (Austlii), http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/
Goode v Goode (2006) FamCA 1346 (http://www.familylawwebguide.com.au/attachment.php?id=43&keep_session=21863255)
Marriage Act 1961 (Cth)
Family Law Act 1975(Cth)
• s 60I
• s 60CC
• s 60CC (3)(a)
• s 60CE
• 61DA
• s 65DAA
The main case that will be discussed in this paper is Nova Scotia (Attorney General) v. Walsh. This paper will argue that Bastarache J delivers the significant argument due to the recognition that individual’s choice to marry or not to marry must be respected; benefits arise from both married and common law relationships therefore, the Matrimonial Property Act does not discriminate unmarried heterosexual couples. This essay will address the facts, the legal issues, the decision, and an analysis of the decision.
There appears to be widespread agreement that family and home life have been changing dramatically over the last 40 years or so. According to Talcott Parsons, the change in family structure is due to industrialization. The concept that had emerged is a new version of the domestic ideal that encapsulates changed expectations of family relations and housing conditions. The family life in the postwar period was highly affected. The concept of companionate marriage emerged in the post war era just to build a better life and build a future in which marriage would be the foundation of better life. Equality of sexes came into being after...
Although it is required to consider the common law rule, principles and to apply settled laws to new facts. The court is also restricted by different legal doctrines of precedent, separation of powers and the court is required to make Australia laws remain predictable and certain.
Herring J., ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ [1999] C.F.L.Q.11 (3), 223-235
The Australian legal system, through the process of law reform, aims to keep the nation a safe which, to a significant extent, is effective in creating a more just society. The Law reform, is the process of introducing changes to existing laws in the legal system. In order to suit contemporary society, laws are improved to in which reflects societal values and thus, accommodate the needs of majority of Australia. However, there are instances where the legal system may not be as effective in these changes. Issue such as the native title, marriage equality and the lock out laws cases can justify whether the law reform is effective.
The decision for Australia to adopt the Federal system was on the principle of which the State’s governments wanted to keep their power. For this reason there was the separation of powers between the newly formed Commonwealth government and the existing State governments. At a constitutional level, there are rulings in which the powers are separated, these rulings due to disputes have slightly changed since 1901. These changes all fell towards the one government, the Commonwealth (Federal) government. However this was not just a landslide event, the Constitution of Australia set up this imbalance of powers between the Commonwealth and State governments. We will explore this further in the points discussed later in this essay.
Divorce is a heavy concept that has many implications for those involved. The situation becomes even more consequential when children are considered. As divorce has become more commonplace in society, millions of children are affected by the separation of the nuclear family. How far-reaching are these effects? And is there a time when divorce is beneficial to the lives of the children? This paper will examine some of the major research and several different perspectives regarding the outcomes of divorce for the children involved, and whether it can actually be in the best interest of the kids.
Families are becoming more diverse and they come in all shapes and sizes. Some people consider families to be strictly biological, while others consider people they love to be their family. Although two-parent families, also known as a nuclear family are the majority, one-parent families are becoming more common in today’s society. A sole-parent is considered to be a parent without a partner or spouse who is the primary care giver of one or more children in a household (Ministry of Social Development, 2010). From the age of 14 onward I was raised by m...
Marano, Hara Estroff. "Children of Divorce: 25 Years Later." USA Weekend. Sept. 15-17 2000: 16-17. SIRS Issues Researcher. Web. 04 May. 2014.
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of E...
Girgis, George, & Anderson (2011) define marriage as the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. These marriages are intended to last eternity and are partially accomplished by raising children together, yet four of every ten marriages lead to divorce and of these divorces, 35% involve children (Ambert, 2009). Children tend to blame themselves for the divorce and are usually caught in the crossfire. These divorces lead to both stress and depression for children and without a strong sense of family, children will have a huge disadvantage over children with a stable healthy family (Arreola, Hartounian, Kurges, Maultasch, & Retana, 2013). Without the ability to cope with the stress of a divorce, children can be effected in multiple ways including a change in mentality, unacceptable behavioural traits and both short and long term emotional factors that will ultimately lead to a critical issue in child development.
Both the federal parliament and the high court of Australia inherit their powers from the constitution and therefore regardless of how the law is made in Australia it must be in flow with the constitution. The same logic applies for any substantive principle said to flow from the rule of law
“The family is a social group characterised by common residence, economic co-operation and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship, and one or more children, own or adopted of the sexually cohabitating adults.” MURDOCK (1949)
Divorce can be a very draining process involving a conglomerate of variables, that can affect a child directly or indirectly. As a definition, divorce is the action of legally dissolving a marriage, but when children are added to the equation, the divorce process takes a different route. In the united states, divorce rates are higher that in other countries around the world, with a 40 % of children of varying ages experiencing their parents’ legal separation (Santrock, 2013, p.308).
Kirby, M. 1997, ‘Bill of Rights for Australia – But do we need it?’, viewed 30 March 2014, < http://www.lawfoundation.net.au/ljf/app/&id=/A60DA51D4C6B0A51CA2571A7002069A0>