Law Reform free essay sample

To do this the law must adapt to accommodate society’s changing needs and attitudes. This means that, over time, new laws must be introduced and old ones repealed or amended. The decriminalizing of homosexuality is one area in which law reform has been driven by changes in society’s values and the consequent advancement of society in recognizing equality and justice for its members, through recognition of non-traditional family structures. The effectiveness of law reform in achieving just outcomes for family members and society can be evaluated by examining issues such as the treatment of same-sex couples in adoption, recognition of same-sex marriage and same-sex couples having equal rights under the law, for example under inheritance laws, health and other insurances, superannuation entitlements and other aspects of social contract. In the case of Re J amp; M 2004, Ms. F and Ms. B were in a same-sex relationship. Ms. F gave birth to twins after IVF treatment. We will write a custom essay sample on Law Reform or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page The couple separated and the Federal Magistrates Court granted them joint responsibility ‘in the best interests of the children’. This case demonstrates laws that look at â€Å"what is in the best interest of the child† rather then whether couples adopting are in a traditional relationship, two women are equally effective at achieving just outcomes for family members as a man and a woman. Therefore the two women were granted joint responsibility of the two children, even though they were a same-sex couple, as it was seen as beneficial to the children’s wellbeing. Another example, this one demonstrating equality of financial responsibility is the case of W v G 1994. W and G were in a female same sex relationship. W gave birth to two children and both W and G had joint parental responsibilities. When G left the relationship she claimed to have no financial responsibility and did not want to contribute to the support of the couple’s children. The NSW Supreme Court ordered G to pay $150, 000 to support these children. Laws introduced in Australia that ensure same-sex couples have equal financial responsibility for the families they create appear effective in this case as W and G’s same-sex relationship was recognized, thus G had to pay financial support to W, just as a heterosexual with financial capacity would have to provide child support. This creates a just outcome for the family members. Another example of law reform being effective was illustrated in a Sydney Morning Herald article, Body language said it all first same-sex couple to adopt in NSW are great dads (2010). Two men, O. V and O. W, were described as the first gay couple in NSW to be allowed to adopt children. Judge Palmer declared the men, â€Å"Unquestionably capable of parenting these two children. † This case highlights the effectiveness of law reform as it has resulted in two men being assessed only for their ability to be good parents, provide for an adopted child and create a proper home. The fact that they were a homosexual couple was not an issue. The result was just- they were treated in the same way as other couples that want to adopt would be. This also provided a just outcome for the two children and the same-sex couple as they are now legally recognized as their parents. The ABC News article Same-sex adoption bill passes NSW Parliament (2010) highlights that the law reform for same-sex adoption will be beneficial for children waiting to be adopted. The new Bill will provide children with the same stability, legal status and recognition as other children. From society’s viewpoint this change has provided not only equality for same-sex couples but has also provided more families into which children, especially those with special needs, can be placed as these children have previously not been able to find homes within traditional heterosexual couples therefore creating a just outcome for this very disadvantaged group. However, those in favor of the traditional family (a man and a woman) see this law reform as ineffective, this is evident in the ABC News article Anglicare flags withdrawal over gay adoption bill (2010). Traditional Christian religious groups see this type of law reform as a means of breaking down the fundamental values of traditional family structures and as a consequence breaking down the fabric of our society. Lack of consensus on law reform can create schisms within society that is ultimately very challenging for a cohesive approach to reform. A prominent issue is the right to marry for same-sex couples. The Marriage Act 1961 (Cwlth) and the Family Law Act 1975 (Cwlth) prohibits same-sex marriage in Australia. This legislation is ineffective at providing homosexuals the capacity of forming their own families and therefore can’t deliver just outcomes. Same-sex couples do not have the same rights as heterosexual couples. In 2004 the Howard government passed the Marriage Amendment Act 2004 (Cwlth) to specifically define marriage as â€Å"a union between a man and a women†. Family policy, such as the right to marry, if denied to same-sex couples can be seen as denying basic individuals a right within a democracy that essentially promotes equality. This can be argued to be a fundamental breach of human rights. As Justice Kirby argues in The Australian the issue of same-sex marriage is not only about property rights, it is about whether a â€Å"secular civilian status of marriage under law should be denied to other citizens whose sexual orientation is alternate† (11/9/06). This demonstrates the need for law reform to achieve just outcomes for family members and society as it is currently not recognizing same-sex marriage creating inequality under the law. In the case Corbett v. Corbett (1970) the Family Court ruled that a person remained the sex indicated on their birth certificate, irrespective of any sex change surgery. This meant that the couple could not remarry, as it wouldn’t be considered a valid marriage. The ruling on this case was ineffective for the couple because one partner’s new gender would not be legally recognized. However, 30 years later, in the case re Kevin (2001) the Court took a different position and ruled that a person who has decided to change their sexual identity can still get married and live life as the gender of their choice. In this particular case law reform was effective in providing a just outcome for the couple and any future couples who are in the same situation. Same-sex couples may undergo a ‘commitment ceremony’ so that their union is publicly acknowledged, but this is not the same as a marriage ceremony. Lucinda Schmidt, writer of the Sydney Morning Herald article Portia DeGeneres and the fight for same-sex marriage (2010), points out that the majority of Australians support same-sex marriage. Yet both major political parties are firmly against it. Same-sex couples have financial equality but the law is yet to recognize same-sex relationships under the Marriage Act. The ABC News article Opposition blocks same sex marriage push (2011) confirms that law reform on the matter of same-sex marriage is an â€Å"uphill battle† and that the current government is continually opposed to any changes in legislation. The Greens have tried to negotiate a back door approach to achieving rights for same-sex marriage with the Federal Government by negotiating with the Labor Party for the Federal Government to water down its right of veto over legislation passed in the Territories. This would mean that the ACT Government, without fear of the Federal Government vetoing that legislation, could pass the legislation proposed to permit same-sex marriages. The terms of this negotiation is set out in The Australian article Greens’ gay marriage victory (2011). However, the political ramifications of this approach meant that by the next day the Government had retreated from this change indicating that law reform is not a sufficient means by itself of achieving just outcomes for family members and society. A shift in policy on the issue of same-sex marriage will require much discussion within society as well as negotiation between third parties particularly church groups. Sometimes law reform is achieved in progressive decisions of the courts. An example of this law reform is in the case of Hope and Brown v NIB Health Fund Ltd (1995) where the NSW Supreme Court held that a same-sex couple and their son was entitled to the lower family insurance rate denied by the insurance company. This was effective in achieving just outcomes for family members and society as it allowed a same-sex family the same lower insurance rate as heterosexual couples; it enforced anti-discrimination laws in a broad and equal manner. Through the Supreme Court’s ruling it was established that bona fide same-sex couples are eligible for the equivalent family rate. Law reform was also found effective in 1999 when the Property (Relationships) Legislation Amendment Act replaced the De Facto Relationships Act 1984 (NSW) in order to address the inequalities suffered by de facto partners of a same-sex relationship. Now both heterosexual and homosexual de facto relationships are recognized under the law. This allows same-sex de facto couples the same financial treatment as heterosexual de facto couples. For example, they can now receive spouse support. However, same-sex couples are discriminated against under superannuation law: Same-sex couples cannot salary sacrifice for their partner and their intentions to leave their superannuation benefits to their partner may be challenged. Another example of where law has not been reformed to provide a just outcome for all family members is in connection with wills and probates. A relative of a deceased, who was a partner in a same-sex relationship, can successfully seek to overturn their relative’s will to obtain some support thereby annulling the clear intention of the deceased to provide for this same-sex partner. For the same-sex partner not to be able to make some provision for their partner on death can lead to extreme financial hardship. The Sydney Morning Herald article Same sex superannuation changes coming (2010) confirms that despite various statutes banning discrimination, justice in this area of family law can still be patchy, there is a need for law reform to provide better outcomes for family members and society. In conclusion, the recognition of same-sex relationships through law reform can be evaluated by examining individual issues such as the treatment of same-sex couples in adoption, recognition of same-sex marriage and same-sex couples having equal rights under the law. The discussion above shows that law reform has taken place through both judicial extension of rights through the common law and also through very specific legislative changes that have been introduced by Parliament. This combination of methods has produced increasing fairness and equality in the treatment of same-sex couples in insurance, superannuation, adoption, child support and foster care. It has not, however, succeeded in creating true equality and recognition for same-sex couples in every aspect of Australian life. This is evident through the present discussion in the community as to whether same sex marriage should be introduced. Judicial determination is not enough to change this aspect of our society and it needs specific legislative reform to bring about just outcomes for all family members and society. Unfortunately, as seen above, changes to fundamental aspects of our society, like marriage, is a fluid process and cannot take place without discussion and negotiation between different interest groups within our society. Reform is therefore just one, though crucial, tool in society’s armory to bring about just outcomes for family members and society.