Redefining the outer boundaries of EU Law: the Zambrano, McCarthy and Dereci trilogy

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens.These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of ‘depriving citizens of the Union of the genuine enjoyment of the substance’ of their rights (the ‘Zambrano principle’).The cases can, at the same time, also be read as a confirmation that the free movement provisions do – still – require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts.6 Moreover, the ‘reverse discrimination Pandora’s box’, the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to – once again – broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis.As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.

Fractal-to-Euclidean crossover of the isotropy restoration feature in a family of fractal resistor networks

Fractal with microscopic anisotropy shows a unique type of macroscopic isotropy restoration phenomenon that is absent in Euclidean space [M. T. Barlow et al., Phys. Rev. Lett. 75, 3042]. In this paper the isotropy restoration feature is considered for a family of two-dimensional Sierpinski gasket type fractal resistor networks. A parameter xi is introduced to describe this phenomenon. Our numerical results show that xi satisfies the scaling law xi similar to l(-alpha), where l is the system size and alpha is an exponent independent of the degree of microscopic anisotropy, characterizing the isotropy restoration feature of the fractal systems. By changing the underlying fractal structure towards the Euclidean triangular lattice through increasing the side length b of the gasket generators, the fractal-to-Euclidean crossover behavior of the isotropy restoration feature is discussed.

Family-friendly employment laws (re)assessed: the potential of care ethics

In light of various reforms in recent years, this article provides a (re)assessment of the broad package of family-friendly employment rights and relevant dispute resolution procedure now available to pregnant workers and working carers. It exposes how the realities of working life for many pregnant workers and carers and the long standing desire to promote gender equality in informal care-work remain at odds with the legal framework. An argument is presented in favour of an approach that, based upon the concept of care ethics, better engages with the impact of the provisions upon crucial interdependent care relationships.

Re Alex: adolescent gender identity disorder and the family court of Australia

'People with gender identity disorder live with a conviction that their physical anatomy is incompatible with their true gender role. They have an overwhelming desire to live and function in the opposite biological sex' . The manifestation of the disorder in children and adolescents is dominated by secrecy, confusion and shame. The purpose of this article is to promote discussion amongst the legal fraternity of the difficult issues confronting the Family Court of Australia when asked to make decisions with life-altering ramifications for the young and vulnerable.

Sex and the surgeon's knife: the family court's dilemma...informed constent and the specter of iatrogenic harm to children with intersex characteristics

The article focuses on the opinion of the Australian High Court on the doctrine of informed consent and the judicial reasoning including the supporting medical evidence in sex assignment cases. The author explains that the remaining credible basis for the jurisdiction assumed by the Family Court in such cases rests in the inability of parents as guardians to give their informed consent to irreversible surgical procedures.

Zero impact: are lawyers' values affected by law school?(Survey)

In 2001 approximately 700 Australian final-year undergraduate law students were surveyed as the first part of a three-year study of Australian lawyers' values. This study is being undertaken in an effort to understand what values are important in determining lawyers' attitudes to difficult behavioural choices confronting them in legal practice. It is hoped that knowledge of the actual values held by lawyers (in the context of critical professional choices) will enable better targeted values awareness education in both pre- and post-admission contexts.

The main quantitative survey employed a number of hypothetical scenarios. These were designed through the use of ethical dilemmas to examine issues of conflicting loyalties within a context of self-interest and lawyers' perceived obligations to the community, employers, family, friends and clients. (1)

Our approach in this paper is to set the scene by providing basic frequencies to responses in each scenario, followed by an analysis of themes elicited from respondents during the focus groups. Our immediate objective is to provide representative interviewee (that is, respondent) commentary designed to throw some light on the major choices of those respondents in the first year of the main quantitative survey. (2) Note that these focus groups were conducted some months after the quantitative analyses, and in particular after respondents had left law school. All respondents were, by that stage, working within a variety of legal workforce environments. In this analysis, it must be stressed, we have not attempted to match and compare individual respondents' comments with their earlier choices in the quantitative survey. That task awaits the longitudinal analysis now under way for the whole period of data collection during the three-year study.

Work choices : Increasing productivity, job creation and work-family balance? Not likely!

The introduction of the Workplace Relations (Work Choices) Amendment Act 2005 (Cth) has resulted in one of the most contentious changes to federal labour law in Australia’s history. There is considerable debate as to whether it has fulfilled the government’s expectations of giving ‘flexibility’ and ‘choice’ to both employees and employers or if there has been an overall deterioration in working conditions. In order to identify the impact of this legislation in the workplace, Deakin University surveyed 11,000 AHRI members throughout Australia. Preliminary results are reported in the paper but, even at this early stage, there is sufficient material to critically comment upon the changes to Australia’s industrial relations system. It appears that the vast majority of AHRI members felt that there had been no change in productivity, job creation or work-family balance and that only a few expected an improvement over the next 3 years.

Professional issues related to allegations and assessment of child sexual abuse in the context of family court litigation

This article focuses on the challenge of dealing with allegations of child sexual abuse in the context of the Family Court of Australia. Of all cases that come before the Court, those involving such allegations are relatively uncommon. they tend to be the most difficult cases, however, and are more likely to require a trial and the involvement of qualified practitioners. The review establishes that parental separation is a special circumstance in which sexual abuse may be more likely to occur, and many allegations of sexual abuse are found to be true. There is evidence, however, that a proportion of allegations made by people other than the child concerned may be false. Whether these false allegations are well intentioned and genuinely believed, or maliciously motivated has been a contentious issue. Issues considered include the mishandling of cases, the failure by professionals to consider equally plausible alternative hypotheses than the sexual abuse of a child, confirmation bias, and the profound repercussions of allegations for all members of the family. It is concluded that all allegations of child sexual abuse must be evaluated in a thorough and sensitive manner to separate the few false allegations from the many that are true.

Business valuation practice issues under Family Court of Australia proceedings

The study investigated the valuation of businesses valued for property settlements in the Family Court of Australia and related issues. The findings have important implications for the Family Court of Australia, the legal profession and the accounting profession in highlighting deficiencies in valuation practice at various stages of the settlement process.

Inter-family transfers and altruism

Examines various models of altruistically motivated transfers between family members. The issues investigated are, keeping up with the Joneses type behaviour, the transfer of intermediate commodities, the transfer process as an informal way of insurance, and the efficiency of market exchange as opposed to private transactions.

Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context

The purpose of this article is to critically evaluate the existing capacity of Indigenous people to exercise succession rights against their estate. This article begins with a discussion of the sources of the general succession laws in Australia, noting that they have derived from UK law, where the common law notions of property, property rights and family, including the expectational right to succeed to property, are all important factors. These common law notions do not easily fit within the spectrum of Indigenous customary law. Generally, many Indigenous Australians will die without executing a valid will (ie, they die intestate) and it is here that this article undertakes an examination of the general intestacy laws in all Australian jurisdictions noting the inadequacy of the provisions to recognise Indigenous persons’ spiritual and cultural obligations to property, land or otherwise, together with a failure to distinguish extended Indigenous kinship relationships under Indigenous customary law. It is argued that Indigenous people who die intestate should be supported by a flexible and adaptive intestacy framework, responsive to the full customary and cultural responsibilities of the deceased, thus promoting an organic and developmental approach to succession entitlements.