Australian Adversarial System

The case of Jonah v White (2012) 48 FAM LR 562 wishes to appeal the original decision of Murphy J, in which his Honour asserted that the appellant, (“Ms Jonah”) and the respondent (“Mr White”) had not been in a de-facto relationship in correspondence with the Family Law Act 1975 (Cth) (“the Act”). The appeal is bought before May, Strickland and Ainslie-Wallace JJ in the Full Court of the Family Court of Australia in Brisbane. The case seeks to question and determine what constitutes a law-binding de-facto relationship.

Out of the shadows and into the limelight, the once hidden crime of domestic violence has recently emerged within the Australian community as a widespread criminal issue. This abuse of power occurs in a relationship when one partner attempts to physically or psychologically dominate and control the other. Inflicting physical harm upon another human being is undoubtedly a breach of the criminal law, yet the Australian legal system takes little measures to protect the wider community from this type of violence. According to Family Lawyer Richard Ingleby, domestic violence has often been condoned by the legal system due to the fact that assaults occur in the ‘private’ realm of the home where legal measures are regarded as inappropriate, and interventionist. However, by overlooking domestic violence as a criminal offence, does the Australian legal system fail to adequately protect the family unit from this form of violence? Recent studies from the Australian Bureau of Statics have revealed that 23% of women who have ever been married or engaged in a de facto relationship have experienced violence by a partner at some time during the relationship. Due to the secrecy that once surrounded this kind of abuse, victims often feel unable to speak out and seek help, therefore even large surveys cannot provide accurate estimates of the extend of domestic violence within the Australia community (Domestic Violence and Incest Resource Centre, 1998). Despite the high incidence rate of

In today's Australia the price of handling a substantial litigation matter is unobtainable for the average Australian, justice does indeed go to the highest bidder and “Unless you are a millionaire or a pauper, the cost of going to court to protect your rights is beyond you.” George Brandis, shadow attorney-general. To say that justice is earned and reserved for the population of Australia is a myth and it is true that legal aid community centres are grossly underfunded and explicitly for those in dire need of legal aid and do not represent the common Australian, there is no universal legal safety-net unlike the education and health systems.

Justice is the concept of moral rightness that is based on equality, access and fairness. This means that the law is applied equally, understood by all people and does not have a particularly harsh effect on an individual. In Australia, the adversary system is used as a means to achieve justice by proving the accused, beyond reasonable doubt, committed the crime. The criminal trial process has many features which aim to fulfill the requirements of achieving justice. These elements, though considers equality, fairness and access, are flawed in practice. Flaws such as the handling of evidence, jurors not understanding instructions, inadequate funds for legal

Family law is the most complex aspect of the Australian legal system as it is constantly under review and reform pursuing to adopt society’s continual change in values and principles. The changing of laws in an attempt to be parallel with society is a strenuous process. Nevertheless, legislations are reflective of contemporary society’s values and ethics. Numerous legal issues arise in regards to family including, same sex relationships, domestic violence and divorce ideally on the best interest of the child, where family laws have been imposed to protect individuals and aim to achieve justice.

With fault based divorce in the 1960s, child custody depended primarily on the child’s age. If the child was under seven years old, also known as the ‘tender years,’ the mother would receive physical custody. This was because of the belief at the time that women are good caregivers and it was their job to take care of the children at home. However, if the children were older, custody would be granted to the parent of the same sex. Sometimes judges would also award custody of children dependent on martial or sexual conduct of the spouses. When custody was awarded in this way, the presiding judge could be more focused on the rights of the parents than what is best for the child in that situation. Either way, it was quite noticeable that child custody was based on the judge and their opinion, which could change from case to case.

The adversarial nature of the Australian court system is fundamentally implemented to ensure a fair and impartial trial for members of the public, yet this is not always the case. Access to justice, and the courts themselves, are often perceived quite variably depending on an individual’s experience with such institutions. In particular, it is often the disadvantaged in our society, such as those from low socio-economic backgrounds, youth and Indigenous Australians, who are the most neglected and disheartened by fair access to the court systems. However, this is not to say that the system specifically works in favor of educated, white individuals. The systematic approach to court processes, consisting of the apparent impartiality of judges and trials by jury, often impede the natural course of justice and do not allow for a fair and unbiased trial.

Australian law is greatly influenced by English Law, being the foundation to the Australian Law System that shaped our country to the democratic and unbiased country known today. Australia has adapted the adversary law derived from English Law, it is when two contrasting sides in a case present their evidence and argument in court, this occurs with an unbiased third party overviewing the cases (Hamper et al., 2009). The Lin Family Case was over viewed by two third parties; the Jury and Justice Elizabeth Fullerton, the opposing sides is Mr Xie and the witness is Detective Constable Anthony Ryan who investigated the crime scene (Visitation, 2015). The adversary system ensures a fair verdict of the case put forward thus, a particular side at no time has a unfair upper-hand.

Societies changing social values towards the notion of ‘family’ has resulted in the legal system attempting to reform the law to reflect these changes. A family is defined by the Australian Bureau of Statistics as ‘two or more persons living in the same household related to each other by blood, marriage, de facto, fostering or adoption’. Within the various types of family relationships, varying differences can cause breakdowns. Due to the range family types that exist today, relationship breakdowns have become complex. The legal system aims to provide a fair and equitable outcome, with the aim to achieve justice for all those involved, despite the challenge of conflicting interest of parties.

A mistreated child going to court is balanced with the potential disruption of parent-child relationship and these decisions are not taken lightly. Relationships and rehabilitation can be best achieved through

The processes and laws regulating property orders for divorcing couples are found in Part VIII of the FLA. In Australia the main requirement of property division is coming to an outcome that is just and equitable for both parties on a case-to-case basis (Mallet V Mallet (1984)). When deciding upon this, three considerations are

Family court is tasked with hearing matters of family law, divorce and child custody. It is a delegation of authority from the states’ superior courts. Family court was established in 1910. The U.S. Family courts’ purpose is to provide family services that are specialized for their case and to obtain positive results in family matters. In each state across the country, the state has specific laws involving family issues such as child custody, visitation, child support, spousal support, adoption, guardianship, and domestic violence.

Australia’s judicial system relies heavily on an Adversarial System of law. The Adversary System is a characteristic of common law. It involves a system of law which has two opposing sides known as the defence and the prosecution. Both sides present their case to an impartial judge or jury in attempt to achieve justice.

According to the Act, it was worth noting that the women (mothers) were entitled to benefits with a directive from the Courts, that

The next aspect of the Act that needs to be analysed is the relief it seeks to provide to the victim. A broad overview of the scheme of the Act suggests three things: first, it is not punitive in nature. The various modes of relief provided for under it are aimed, principally, at protecting the victim from any further abuse and compensating her for the abuse already suffered, and additionally, at restoring stability and harmony in the family unit. Thus, all the provisions have been structured so as to give effect to this dual purpose. Second, the Act is not exhaustive and is only complementary in nature, i.e. it supplements the existing legislations and the relief provided under it is only in