Seminar 3 week 3
In week 3, the first topic discussed is the nullity of marriages according to the family court of Australia. Hence, in the topic, I learned the various grounds in which a decree of nullity is available. First, I learned that decree of nullity is where a marriage is not considered legal despite a marriage ceremony having taken place. I learned that a decree of nullity can happen when the two parties in the marriage are in a prohibited relationship, when one of the partiers was married to someone else at the time of the marriage in question, and in situations where one of the parties had not attained legal marriage age when the marriage was taking place (Biggs, 2016).
Additionally, the decree of nullity is possible where either of the parties did not give real or legal consent for the marriages. This helped me to realize that consent obtained fraudulently by one of the parties means that the marriage is null. One assumption that I had was that the decree of nullity can happen because of reported domestic violence. However, this is not the case (Sifris and Rodrick, 2016). The other factor that can lead to a marriage being considered invalid in Australia is when the marriage ceremony was officiated or solemnized by a legally recognized celebrant.
In the Pavey & Pavey family case, the possibility of separation under one roof is discussed. The biggest question I had concerning the case is how can a couple be deemed to be living separately while they are still living under one roof. I learned from this case that it is indeed possible for couples to be living separately but under one roof (Jamil, 2015). According to the case, for a couple to prove that they are separated when they are living under one roof, they must prove that they are sleeping in separate rooms, there is no sexual relationship between them, and there are no household services being rendered by either of the two. However, the findings and explanations of the case still left me with questions regarding how the couples can prove that they are indeed separated. It is difficult for them to give evidence that can be trusted and hence it is highly possible for either of them to falsify the separation.
The week 10 seminar focused on family violence. I realized that it is difficult to fully describe family violence and separate it from domestic violence. In the seminar, I learned that domestic violence is referred to as the violence between a couple that has been ion an intimate relationship. On the other hand, family violence is broader and it refers to more complex incidences of violence within the family setting. It is especially relevant where aboriginal families are concerned. Additionally, family law is incorporated by the Family Law Act 1975 (Cth). However, in many publications and references, the two terms are used interchangeably. I learned that some of the acts and behaviors that can be classified as family violence include intentional damage of property, stalking, causing death or injury to an animal, acts that are meant to isolate a family member, and consistent derogatory taunts. All these and other acts that are meant to coerce or control a family member are termed classified under family violence.
Domestic violence is a serious issue in Australian family law because it is reported that it accounts for up to 20% of homicides in the country. In most cases, women are usually the victims. In the seminar, I also learned that there are various tools that can be used to screen for domestic violence (Roberts et al., 2015). However, in my opinion, I do not believe that they are useful enough. It is better for the lawyer or other relevant authorities to use personal skills and experience when determining cases of domestic violence. To support this, there are many lawyers who opt to use their sills instead of the FDV tools. There are provisions that allow a family lawyer to both advice and represent a perpetrator or the survivor of domestic violence.
Domestic violence affects the children in many ways. Many children witness domestic violence between their parents. The witnessing refers to seeing, hearing, or even observing the incident of violence. Hence, they are affected mentally by the violence. Some of the emotional responses of children who have experienced domestic violence include shame, guilt, sadness, depression, anger, and fear. This can sometimes affect them for the rest of their lives if they do not get the relevant support in terms of counseling. The physical responses include headaches, stomachache, lack of concentration, and bedwetting. Hence, it is essential for a lawyer to identify cases of domestic violence early for the sake of the children and the survivor of the violence (Phillips and Vandenbroek, 2014).
However, I learned that it is quite hard to quantify domestic violence in the case of lawyers. A graduate lawyer is likely to top encounter problems when it comes to screening for domestic violence. This is because on ends to not only understand the tools available for the screening but also have sufficient personal skills that help identify domestic violence. Hence, it is essential for graduate lawyers to be keen so that they can ensure they do not miss anything.
The topic for the week was family dispute resolution. One of the essential things I learned in the topic is the importance of mediation when it comes to solving family conflicts. It is important to solve the family problems through mediation because it benefits the children who are usually the innocent victims of the conflict. Unlike other resolutions such as adversarial litigation, mediation enables the parties involved to put the interests of the children first and also avoids putting them in the middle of a divorce or separation. Without mediation, the parents try to hurt each other in the many ways and their anger clouds the effects of the conflict on the children (Field and Lynch, 2014). Therefore, it is important to use mediation so that the children cannot be affected by the differences between their parents. Additionally, mediation is confidential and hence the information that is likely to ruin the reputations couple is not disclosed. This gives privacy to the conflict resolution. Mediation is also less expensive when compared to other long court processes.
In family dispute resolution, I learned that the courts have an important role to play. They provide the middle or neutral ground. They are responsible for determining the fate of the children and how best to take care of them, in the event of a divorce. Moreover, the courts determine how property and money are to be shared between the couples, look over [prenuptial agreements between the couples, and also determine the possibility of criminal charges against a party especially where fraud or violence is involved.
In the topic, I learned that the adversarial system has many advantages that enable it to be applicable in family law. One of the advantages is that the system is just and less prone to abuse. It also considers the rights of both the prosecuting and defending parties in the court and provides both sides with an opportunity to defend and support their position. Hence, it is an excellent choice for the solving family disputes. However, I observed that it might not be the best choice, as it ends up affecting innocent children, which is avoidable in the case of mediation.
In the seminar, the topic under discussion was the ethical issues that arise in family law. In this seminar, I learned the various challenges that face family lawyers in their daily practice. One of the challenges that come up in practice is making a decision on the final judgment when it comes to family issues that involve children. In this case, the best interest of the child is the most important consideration. However, problems come up at this point because it is hard to evaluate family violence. Additionally, it is hard to decide whether there is any kind of violence that is acceptable, the consequence of the abuse of the child and whether a perpetrator of violence is an acceptable role model for the kid.
Another challenge that faces family lawyers arises from the conflict of interest where they have to uphold client confidentiality and also report relevant information to the authorities when necessary. This leaves the lawyer in a dilemma that he has to navigate through carefully to avoid disciplinary action against him. Moreover, the full and frank disclosure of current or former clients is an ethical breach.
A family lawyer can do several things that can help him avoid the challenges that are outlined above. One of the things a lawyer can do in this case is making sure that they conduct a thorough conflict check before choosing to provide legal services. This is helpful because it can help them avoid a situation of conflicting interest. In case the lawyer finds out that there is an existing conflict, he or she should limit the legal service provided to assistance that does not need explicit information that can cause ethical issues.
Additionally, the lawyer must inform the client that he or she is merely offering general information or assistance. Hence, the client should be refrained from providing detailed information on the matter at hand. Moreover, the lawyer should refer the client to the relevant provider of the legal services depending on the situation of the client. Therefore, by doing this, the lawyer can easily avoid ethical dilemmas (Sprianovic et al., 2014).
In the cases to be discussed in class, I would make sure that I reported the legal issue of tax evasion and undisclosed income when it comes to the Mrs. Nguyen case. As an officer of the court, I have an obligation to report illegal issues to the court. Additionally, in the Julia case, I would make sure that I reported the case of child abuse to the court and to the DCS. This is because, despite the fact that Julia is my client, I am ethically obliged to consider the interests of the child before making any decision as a family lawyer. Personally, I believe that there is no such thing as acceptable violence especially when small children are the victims.
Books and Articles
Biggs, J. M. (2016). 04_Matrimonial Legislation in Australia.
Sifris, A., & Rodrick, S. (2016). 100 Years of Open Justice in Family Law Proceedings in Australia.
Jamil, S. (2015). An Analysis of Irretrievable Breakdown of Marriage as a Ground for Divorce.
Roberts, D., Chamberlain, P., & Delfabbro, P. (2015). Women's experiences of the processes associated with the family court of Australia in the context of domestic violence: A thematic analysis. Psychiatry, Psychology and Law, 22(4), 599-615.
Phillips, J., & Vandenbroek, P. (2014). Domestic, family and sexual violence in Australia: an overview of the issues. Department of Parliamentary Services, Parliamentary Library.
Field, R. M., & Lynch, A. (2014). Hearing parties' voices in Coordinated Family Dispute Resolution (CFDR): An Australian pilot of a family mediation model designed for matters involving a history of domestic violence. Journal of Social Welfare and Family Law, 36(4), 392-402.
Sprianovic, C., Clare, J., Bartels, L., Clare, M., & Clare, B. (2014). Aboriginal young people in the children's court of Western Australia: Findings from the national assessment of Australian children's courts. UW Austl. L. Rev., 38, 86.
Family Law Act 1975 (Cth).
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