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Legal

In: Social Issues

Submitted By tahminaah
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The multifaceted nature of the legal system allows it to be both effective and ineffective in ensuring compliance with the law regarding family relationships. The legal system can never ensure complete compliance but ensures it effectively through legislation and common laws implemented in the family law areas of surrogacy . The law can be seen to not effectively ensure compliance in the areas of domestic violence and relationship breakdown involving children. In the issue of the legal rights and obligations of parents agreement with the law can be seen to occur, but more reform both legally and socially is needed for such effectiveness

In family law issue of surrogacy, much recent reform has been orchestrated as a means to effectively encourage compliance with the law. The need to change and reform surrogacy laws to ones which were more coherent and simpler to comply with are noted in ‘Time to Change unjust surrogacy laws’ 2007 the age and in case law demonstrating the complex nature of complying with such laws ‘Wilson and Anor and Roberts and Anor 2010’. Thus in the surrogacy Act nsw 2010 was implemented to create a more decisive and coherent set of laws that are to be compiled with and that encouraged through their reflection of societies values and ethics. SMH published an article in 2015 stating head of family court Diana Bryant is confident Australia will legalize commercial surrogacy to prevent such tragedies such as ‘Baby Gammy’ who was let behind because of his disability. Commercial surrogacy is outlawed in Australian states and territories, but such couples that are desperate for a child persist in breaking the law. In the case RE Michael 2009, The case was heard under the family law act because the state lacked legislation relating to surrogacy. It was found that the court could not make an order over the parentage they had to apply, to the Supreme Court for an adoption under the adoption act 2000. Thus the surrogacy act nsw was made with the best interest of the child in mind, ratification of CROC and such agreement with this main Goal is central to the legislation and subsequent case law. Highlighted in the landmark case Elison v Kanchanit 2012 where non-compliance with the surrogacy acts ban on commercial surrogacy was overlooked for the ‘best interest of the child’. Evidently in the family law issue of Surrogacy effectively encourages laws that reflect society’s values and ethics and are used for the best interest of the child.

Changes to surrogacy laws in recent years were vital due to the absence of legislation that adequately and conclusively addressed the practice of altruistic or not profit and commercial surrogacy. In the case of re evelyn 2998 the birth mother did not wish to give her child up to the commissioning parents, with the court ruling in favor indicating that the protection of vulnerable family members and the best interest of the child are paramount in determining surrogacy matters which may, however head to injustice for family members. This was highlighted in the case of re Michael, where both the birth mother and commissioning parents were in full agreements towards the transfer of parenting responsibilities. Thus in 2009, the NSW standing committee on law and justice launched an inquiry into surrogacy, receiving over 100 submission from groups such as gay and lesbian rights lobby and the Australian family association. Thus highlights the effectiveness of non legal responses in resolving family conflict in achieving justice for families.

According to Hammer 2013, ‘domestic violence is one of the most widespread human rights abuses in Australia and Globally. It is because of the NSW legal system has done a lot to effectively deal with all types of domestic violence, including emotional and sexual. Most of their responses has been through the substantial changes in legislation over time, especially through the introduction of ADVOS under the crime (domestic violence) amendment act 1982 (nsw). The provision of ADVOS improved a lot since then, evident recently through the crime (domestic and personal amendment act 2013(commenced in 2014) which enables police to remove offenders form the scene. Both AVDO’s and APVO’s have proven to be generally effective given that, out of the 24,378 and 7,325 respectively granted y local courts in NSW, most were found without incidents. In Jennifer Kokany’s case in 2015 apprehended and avo against her violent husband, however the law did not cooperate and breached the AVO due to her husband being wealthy. Also highlighted in the ‘no single factor, no single solution to domestic’ claims 64% of domestic violence reported are by men which director of the Bureau of Crime Statistics and Research states providing more apprehended orders and more venues for escapes to pursue domestic violence from happening. As seen in R v Mulvihill where Simon gitanny was charged with the murder of Lisa Harnum

However this response is not fool print as ADVOS can be breached, also evident through the Ingrid Paulson case, where her children and her father were killed by her husband (who killed himself). Despite the ADVO against him ‘A mothers tale of murder reduces police to tears’ the age 2006. Despite the need for some operational improvements, including educating police as to the seriousness of domestic violence, the legal system need compliance in protecting families from domestic violence, shown through the NSW Domestic Violence Justice Strategy. Under the Family Law Act 1975 and the Crimes (domestic violence and personal violence act 2007 accentuates that there should be equal and just outcomes for domestic violence. This is the latest NSW legal response to domestic violence, following on from the domestic violence intervention court model establishment in 2005, which provided support for victims and managed offenders. The strategy commits all justice agencies and victims support services to work together to identify areas of legislation where reform is needed to better protect individuals.

Evidently, although there are some areas which still need improvement, the legal system has responded efficiently to various problems that arise conflict within families.

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