A digest of English civil law,

v.1. General, by Edward Jenks.--v.2. (part 1) Law of contract (general) by R. W. Lee.--v.2. (part 2) Law of contract (particular contracts) by R. W. Lee.--v.2. (part 3) Law of quasi-contract and tort, by J. C. Miles.--v.3. Law of property, by Edward Jenks.--v.4. Family law, by W. M. Geldart. Succession, by W. S. Holdsworth.--v.5. Succession (cont'd.) by W. S. Holdsworth.

Orders for sale:the creditor and the family home : part one

This, the first part of a two-part article on the discretionary powers of the courts to order a sale of the family home at the request of a secured creditor, considers whether the enactment of the Trusts of Land and Appointment of Trustees Act 1996 s.15 has led judicial decision making to favour the interests of the co-owner of the home. Reviews cases heard since the coming into force of the Act, looking at the factors taken into account when balancing the interests of the creditor and debtor, including the continued need to have a family home, the availability of other assets to pay off the debt, the size of the debt and the likelihood of repayment.

Orders for sale:the creditor and the family home : part 2

This, the second part of a two-part article on the discretionary powers of the courts to order a sale of the family home at the request of a secured creditor, continues the review begun in part one of common factors taken into account by the courts in post-1996 cases when balancing the interest of the creditor and debtor. Considers the availability of alternative accommodation, the health of the parties, the right to private and family life, the age of the parties, hardship a sale would cause other family members and delay on the part of the creditor in prosecution of proceedings to recover its debt.

The regulation of cohabitants in Scottish succession law

Ten years ago, cohabitants in Scotland had no statutory rights in respect of their deceased partner’s estate. Section 29 of the Family Law (Scotland) Act 2006 gave cohabitants the right to apply to the court for discretionary provision from their deceased partner’s intestate estate. This thesis examines the process of making such an application and the way that the provisions have been applied in practice. The juxtaposition of the Family Law (Scotland) Act 2006 and the existing rules for intestate succession in the Succession (Scotland) Act 1964 is considered, with particular focus on the subordination of cohabitants’ rights to the succession rights of a surviving spouse, and the negative impact that this may have on children. It is concluded that the current succession framework is incapable of protecting cohabitants and children in reconstituted families. Potential measures are considered to displace the traditional primacy of marital succession rights, and provide a fair and flexible system of succession law that is capable of dealing with complex family structures.

Communication in family court:financial remedy proceedings from the perspective of litigants in person

The article presents a rationale for communicative, conceptual, cognitive and procedural challenges experienced by litigants in person in financial remedy proceedings. The article also explores oscillation between written and spoken legal genres and narrative development strategies which litigants in person have to use throughout different stages (from the early stages of starting proceedings, filling in court forms and providing documentation, through the negotiation process to interaction in court). While legal professionals express themselves in paradigmatic legal mode influenced by legal acts and legislation, litigants in person tend to express themselves in narrative mode similar to everyday storytelling. The objective is to investigate obstacles litigants in person experience during the process originally designed by legal professionals for legal professionals. The article evaluates different options for empowering lay people involved in legal proceedings and argues for the need to provide more specific support for different stages of family proceedings.

Non-adversarial advocates and gatekeepers : lawyers, FDR practitioners and co-operative post-separation parenting

The compulsory dispute resolution requirements in family law parenting cases create new roles and obligations for both lawyers and family dispute resolution (FDR) practitioners. This article will discuss how the legislative provisions impact on both sets of professionals in practice. It will also highlight the increased non-adversarial role of lawyers and a new role for FDR practitioners as “gatekeepers” to family courts in cases requiring FDR certificates.

Beyond charity : outlines of a jurisprudence for civil society

There is not a single, coherent, jurisprudence for civil society organisations. Pressure for a clearly enuciated body of law applying to the whole of this sector of society continues to increase. The rise of third sector scholarship, the retreat of the welfare state, the rediscovery of the concept of civil society and pressures to strengthen social capital have all contributed to an ongoing stream of inquiry into the laws that regulate and favour civil society organisations. There have been almost thirty inquiries over the last sixty years into the doctrine of charitable purpose in common law countries. Those inquiries have established that problems with the law applying to civil society organisations are rooted in the common law adopting a ‘technical’ definition of charitable purpose and the failure of this body of law to develop in response to societal changes. Even though it is now well recognised that problems with law reform stem from problems inherent in the doctrine of charitable purpose, statutory reforms have merely ‘bolted on’ additions to the flawed ‘technical’ definition. In this way the scope of operation of the law has been incrementally expanded to include a larger number of civil society organisations. This piecemeal approach continues the exclusion of most civil society organisations from the law of charities discourse, and fails to address the underlying jurisprudential problems. Comprehensive reform requires revisiting the foundational problems embedded in the doctrine of charitable purpose, being informed by recent scholarship, and a paradigm shift that extends the doctrine to include all civil society organisations. Scholarly inquiry into civil society organisations, particularly from within the discipline of neoclassical economics, has elucidated insights that can inform legal theory development. This theory development requires decoupling the two distinct functions performed by the doctrine of charitable purpose which are: setting the scope of regulation, and determining entitlement to favours, such as tax exemption. If the two different functions of the doctrine are considered separately in the light of theoretical insights from other disciplines, the architecture for a jurisprudence emerges that facilitates regulation, but does not necessarily favour all civil society organisations. Informed by that broader discourse it is argued that when determining the scope of regulation, civil society organisations are identified by reference to charitable purposes that are not technically defined. These charitable purposes are in essence purposes which are: Altruistic, for public Benefit, pursued without Coercion. These charitable puposes differentiate civil society organisations from organisations in the three other sectors namely; Business, which is manifest in lack of altruism; Government, which is characterised by coercion; and Family, which is characterised by benefits being private not public. When determining entitlement to favour, it is theorised that it is the extent or nature of the public benefit evident in the pursuit of a charitable purpose that justifies entitlement to favour. Entitlement to favour based on the extent of public benefit is the theoretically simpler – the greater the public benefit the greater the justification for favour. To be entitled to favour based on the nature of a purpose being charitable the purpose must fall within one of three categories developed from the first three heads of Pemsel’s case (the landmark categorisation case on taxation favour). The three categories proposed are: Dealing with Disadvantage, Encouraging Edification; and Facilitating Freedom. In this alternative paradigm a recast doctrine of charitable purpose underpins a jurisprudence for civil society in a way similar to the way contract underpins the jurisprudence for the business sector, the way that freedom from arbitrary coercion underpins the jurisprudence of the government sector and the way that equity within families underpins succession and family law jurisprudence for the family sector. This alternative architecture for the common law, developed from the doctrine of charitable purpose but inclusive of all civil society purposes, is argued to cover the field of the law applying to civil society organisations and warrants its own third space as a body of law between public law and private law in jurisprudence.

Children and consent to medical treatment

This chapter deals with the law concerning children and consent to medical treatment. Where a child under the age of 18 requires medical treatment, issues arise as to who may lawfully consent to the treatment and under what circumstances. Depending on the circumstances, consent may be given by the child’s parent or guardian; the child; or a court. The chapter provides a thorough treatment of Australian law about these issues and circumstances.

Early Intervention Program Final Evaluation Report

The Early Intervention Program aims to facilitate contact between children and their non-residential parent as soon as practicable after breakdown and separation of the immediate family unit. The Program is auspiced by the Sunshine Coast Family Contact Centre Association. The Program has been offered since late 2007 following receipt of a grant from the National Community Crime Prevention Program [NCCP] for Domestic Violence Prevention. This external evaluator report summarised main achievements with respect to meeting program objectives and also makes recommentations in view the of the continuation of this innovative program.

Surrogacy and IVF

While in the past surrogacy was illegal in Queensland, since June 2010 the Surrogacy Act 2010 (Qld) (“the Act”) has made altruistic surrogacy arrangements lawful in Queensland. In addition, it provides a mechanism for transfer of legal parentage from the surrogate to the person(s) wishing to have a child (the intended parent(s)). Commercial surrogacy – where a payment, reward or other material benefit of advantage (other than the reimbursement of the “birth mother’s surrogacy costs” (s11 of the Act) is made for entering into a surrogacy arrangement – remains unlawful. The paramount guiding principle underpinning the Act is that of the wellbeing and best interests of a child born as a result of surrogacy. The Surrogacy Act 2010 (Qld) allows a single person or a couple (heterosexual or same sex couples) to enter into an agreement with a woman, and her partner (if she has one), to become pregnant with the intention that the child will be relinquished to the intended parent(s). The Act also provides a mechanism for the intended parent(s) to be legally recognised as the parent(s) of the child. In order for the intended parent(s) to be legally recognised (via a parentage order, discussed below) it must be shown that the surrogacy arrangement was entered into when all the parties were over 25 years of age and the intended parent(s) are male or, in a heterosexual or lesbian couple the female(s) are not likely to conceive or give birth to a healthy child due to medical reasons. The arrangement must be entered into before the surrogate becomes pregnant and all parties must have obtained independent legal advice and counselling about the proposed arrangement, and evidence of this is required at the time a parentage order is applied for. For the purposes of the Act it does not matter how the surrogate conceives the child or if the child is genetically related to the parties. During the period of the pregnancy, the surrogate has the right to manage her pregnancy in the way she wishes. Although she cannot profit from acting as a surrogate, section 11 states that she is entitled to surrogacy costs. These include, for example, reasonable medical costs related to pregnancy and the birth of the child; counselling and legal costs associated with the surrogacy arrangement; actual lost earnings because of leave taken during pregnancy or following birth and any reasonable travel expenses incurred. The surrogacy arrangement itself is not legally enforceable; however, obligations to pay a surrogate’s surrogacy costs are enforceable unless she chooses not to relinquish the child to the intending parents. While the Act does not specifically deal with the situation where the surrogate decides she is unprepared to relinquish the child to the intended parents, there have been examples where parties have entered into these kinds of arrangements, and the arrangements have become difficult. For example, the Family Court case of Re Evelyn (1998) FLC 92–807 involved a child born to a surrogate mother who decided not to surrender her. The child was the genetic child of the surrogate mother and the husband of the couple who had contracted with the surrogate mother. Both sets of parents brought proceedings in the court, seeking that the child live with them. In hearing the application, the court applied the paramount principle of the ‘best interests of the child’. The court made clear that there is no presumption in favour of the birth mother, although in this case the court found that the child may be better placed with the surrogate mother’s family.

Continuing the critical analysis of 'meaningful relationships' in the context of the 'twin pillars'

This article continues the critical analysis of ‘meaningful relationships’ in the context of the operation of the ‘twin pillars’ which underpin the parenting provisions. It will be argued that the attitude of judicial officers to three key questions influence how they interpret this concept and consequently apply the best interest considerations. Relevant to this discussion is an examination of the Full Court’s approach to the key parenting sections, particularly the interaction of the primary and additional considerations. Against this backdrop, a current proposal to amend the ‘twin pillars’ will be examined.

Parental responsibility and removal of life sustaining treatment : Re Baby D

The case of Re Baby D (No. 2) has been described as a “landmark decision” as to whether parents themselves can authorise medical staff to withdraw life-sustaining treatment from their child or are required to seek the permission of a court or tribunal. The reasons for the decision that the removal of an endotracheal tube from the airway of Baby D was to treat “a bodily malfunction or disease” and therefore could be authorised by the parents will be explored.