Australia Greater Recognition of Adults as Individuals?

Summary

If a theme must be identified in family law in Australia over 2017 it would be that the developments in the law have arguably shown an emerging role for the consideration of the rights of the individual adult, not only with respect to access to the status of marriage but also within marriage or de facto marriage relationships. In this chapter, a range of developments in Australian family law over the last year will be identified, which, it is argued, display aspects that bear out this theme.

The most significant development in 2017 has been the legislative changes to the institution of marriage to allow access to all citizens, removing the limitation upon formal recognition of marriages to spouses in the traditional male-female dyad. As will be discussed in the first section of this chapter, the process of legislative change was challenging for a variety of reasons, although ultimately ended quite simply. The changes clearly promote the rights of couples to have intimate relationships solemnised as marriages without gender limitations and thus achieve the same legal status as traditional marriages arguably carries prestige and demonstrates acceptance of the legitimacy of same-sex partnerships.

In the past 12 months, the parenting provisions in Australian legislation have not significantly altered; however, a number of difficult issues have been the subject of significant appeal court decisions. The difficulties of controlling the living arrangement of a child in their middle teenage years (on the motion of a parent), in the face of entrenched opposition from the child, was addressed by the High Court, affirming orders contrary to the child's wishes. Secondly, the Full Court of the Family Court has again considered the extent of parental authority to authorise medical procedures in cases where children are to have medical intervention concerning gender issues, confirming greater authority for parents and children to make decisions that may be irreversible for the child by the time the child is an adult.

The option of pre-nuptial agreements (known as Binding Financial Agreements in the Australian legislative scheme) has been available in Australia for many years. In 2017, the courts were required to consider the enforceability of such an agreement in light of alleged undue influence by a party.