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Veerle Van Den Eeckhout - One of the best experts on this subject based on the ideXlab platform.
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private international Law questions that arise in the relation between migration Law in the broad sense of the word and Family Law subjection of pil to policies of migration Law
Social Science Research Network, 2013Co-Authors: Veerle Van Den EeckhoutAbstract:In many analyses of international Family Law attention is exclusively given to “cultural” aspects; the analysis of rules of international Family Law is often embedded in the debate on the collision of cultures. But in analyses of international Family Law a so-called socio-economic component can be distinguished, certainly if international Family Law is studied in interaction with migration Law: in regulating mobility, residence, nationality and social security issues at present sensitive areas – one is inevitably confronted with the intricacies of PIL – for example, the recognition of a foreign marriage or of a foreign judgment containing a change of age of a foreigner (both typical issues of PIL) could be decisive in evaluating a residence claim or a retirement claim. Awareness of this impact of international Family Law apparently functions as a catalyst on various levels: in parallel with current “two-track policies” in migration Law, a double-track policy is also emerging in the process of dealing with international Family Law. On the one hand, the European Union has “brought in” international Family Law as an instrument to stimulate the freedom of movement of European citizens: the awareness that mobility of European citizens within the European Union can be influenced by the way people weigh the pros and cons of its impact on the regulation of their Family life, spurs the elaboration of a liberal international Family Law. On the other hand, when international Family Law issues involve non-European foreigners, national authorities sometimes tend to use international Family Law rules in such a way as to prevent non-European migrants from claiming residence, social security and nationality. Thus, if one examines the “economic” component of international Family Law, both the so-called European context (mobility of European citizens and their Family members within Europe, whereby principles as free movement of persons, non-discrimination of EU citizens and European citizenship are crucial) and the so-called non-European context (migration from non-European countries) should be examined – with attention for the shaky dividing line which seems to exist between the two, as well as the double-track policy which, when comparing dynamics, seems to develop (trends to liberalisation in a European context versus opposite trends in a non-European context). An analysis of the “instrumentalisation” of PIL requires a) research into the foundations of PIL b) as well as research into PIL’s “hinge-function.” There is a need to lay down the scientific foundations for future developments in this area through the identification of a series of mechanisms, the critical analysis of the legitimacy and side-effects of current practices and the exploration of future scenarios. The paper includes references to the themes of Transnational Corporate Social Responsibility and International Labour Law, as related to Private International Law.
Tony Bogdanoski - One of the best experts on this subject based on the ideXlab platform.
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towards an animal friendly Family Law recognising the welfare of Family Law s forgotten Family members
Social Science Research Network, 2010Co-Authors: Tony BogdanoskiAbstract:Companion animals have assumed a pivotal role as legitimate members of the Family in contemporary Western liberal societies, including Australia. However, the legal position of Australian Family pets following Family breakdown has largely gone unexamined. Even though their welfare is promoted by animal protection Laws, Australian Family courts do not currently need to explicitly consider the welfare of companion animals when deciding their post-separation placement or ownership. Drawing upon the emergent field of animal Law, as well as developments in North American Family Law, this article argues that Australian Family Law should not simply regard companion animals as equivalent to any other piece of personal property requiring distribution between the parties upon separation or divorce. In particular, this article proposes that specific provisions should be inserted into the Family Law Act 1975 (Cth), distinct from existing provisions relating to the property and human children of the parties, stipulating that Family courts explicitly consider the welfare of Family pets in allocating them to the parties. Ultimately, the effect of treating Family pets differently from personal property would be to acknowledge that companion animals are not merely chattels but, as living beings that are dependent on their human owners for their future welfare, are instead very similar to human children and therefore also require special legal protection and attention in Family Law proceedings.
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towards an animal friendly Family Law recognising the welfare of Family Law s forgotten Family members
Griffith law review, 2010Co-Authors: Tony BogdanoskiAbstract:Companion animals have assumed a pivotal role as legitimate members of the Family in contemporary Western liberal societies, including Australia. However, the legal position of Australian Family pets following Family breakdown has largely gone unexamined. Even though their welfare is promoted by animal protection Laws, Australian Family courts do not currently need to explicitly consider the welfare of companion animals when deciding their post-separation placement or ownership. Drawing upon the emergent field of animal Law, as well as developments in North American Family Law, this article argues that Australian Family Law should not simply regard companion animals as equivalent to any other piece of personal property requiring distribution between the parties upon separation or divorce. In particular, this article proposes that specific provisions should be inserted into the Family Law Act 1975 (Cth), distinct from existing provisions relating to the property and human children of the parties, stipulati...
Georgina Dimopoulos - One of the best experts on this subject based on the ideXlab platform.
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divorce with dignity as a justification for publication restrictions on proceedings under the Family Law act 1975 cth in an era of litigant self publication
Griffith Journal of Law & Human Dignity, 2019Co-Authors: Georgina DimopoulosAbstract:Upon its enactment, the Family Law Act 1975 (Cth) closed the Family Court of Australia to the general public and imposed a total prohibition on the publication of proceedings. Such privacy protection, together with the advent of ‘no-fault’ divorce, were intended to serve the objective of ‘divorce with dignity’, by ridding divorce of its stigma which had made it a public spectacle and prime media fodder. In their current form, the publication restrictions imposed by section 121 of the Family Law Act prohibit the publication or dissemination of identifying details of Family Law proceedings. Adopting a personhood account of privacy, this paper asks whether the privacy protection embodied by section 121 remains justifiable in terms of human dignity, in light of the phenomenon of litigants self-publishing details of their Family Law litigation on digital and social media platforms. It explains how online self-publication by litigants may violate privacy and be an affront to dignity, and argues that, notwithstanding the privacy paradox, section 121 can still be justified by ‘divorce with dignity’ to which the Family Law Act aspired.
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embracing children s right to decisional privacy in proceedings under the Family Law act 1975 cth in children s best interests or a source of conflict
Social Science Research Network, 2018Co-Authors: Georgina DimopoulosAbstract:Privacy and Family Law are both dynamic, subjects of passionate debate, and constantly changing with developments in society, policy and technology. This paper develops a normative understanding of the meaning and value of privacy in the context of proceedings under the Family Law Act 1975 (Cth) (Family Law Act) that embraces children’s decision-making autonomy. The focus is privacy’s decisional dimension, which has received scant scholarly attention in the Australian Family Law context. Recognising and respecting children’s (as distinct from their parents’) decision-making autonomy, and children’s right to make decisions that might conflict with their parents’ (and the state’s) wishes, remain significant, and unresolved, challenges for the Australian Family courts. This paper explores these issues using court authorisation of special medical procedures for children diagnosed with gender dysphoria as a case study. This paper argues that the construction of children as vulnerable to harm and the hierarchical nature of the parent-child relationship under the Family Law Act, coupled with judicial approaches to determining the ‘best interests of the child’ as the paramount consideration, have inhibited the Family Court of Australia from embracing children’s decisional privacy. This paper addresses concerns about the perceived conflictual consequences of doing so. It emphasises the relationality of children’s rights, the significance of the Family unit, and the public interest in promoting children as active participants in proceedings as a policy goal of Family Law.
Linda C Mcclain - One of the best experts on this subject based on the ideXlab platform.
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the intersection of civil and religious Family Law in the u s constitutional order a mild legal pluralism
Social Science Research Network, 2015Co-Authors: Linda C McclainAbstract:This chapter considers how civil and religious Family Law intersect in the U.S. legal system and how U.S. constitutional Law shapes and constrains the accommodation of religious pluralism as it pertains to Family Law. To the question, “Is there too much or too little pluralism in U.S. Family Law?,” I answer that Family Law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish and Islamic religious marriage contracts, divorce agreements, or arbitration agreements, and (2) cases in which courts decide whether the principle of comity requires them to recognize foreign marriages and judgments of divorce. These cases highlight that U.S. Family Law generally accommodates religious pluralism, subject to constitutional norms and public policy. However, the recent enactment of state bans on the application of foreign Law (so-called “anti-sharia Laws”) reflects a misunderstanding – if not rejection – of this mild pluralism. Concerns over the equality of women in matters of religious Family Law feature in calls for such ban, particularly in a third category of cases involving religion: highly-publicized attempts to assert religious beliefs about Family roles as a defense against public Laws prohibiting domestic violence and sexual assault (i.e., “my religion made me do it”). Case Law shows such appeals to religion do not trump the protective policies of civil and criminal Law.
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love marriage and the baby carriage revisiting the channelling function of Family Law
2007Co-Authors: Linda C McclainAbstract:This Article revisits a significant idea at the core of contemporary debates in Family Law: the channelling function of Family Law. This idea is that a basic purpose of Family Law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family Law scholar Carl Schneider helpfully invited attention to this familiar idea in an essay published fifteen years ago. Challenges to the conventional sequence (expressed in the childhood rhyme) of love-marriage-baby carriage posed by changing social practices, rights claims made by various groups within society that lead to legislative change and judicial rulings, by technological developments in the area of reproduction, and by changes in Family Law toward a more functional definition of Family changes provide a valuable opportunity to revisit Schneider's notion of the channelling function of Family Law and, in particular, how it relates to other important functions of Family Law. As this sequence of love-marriage-baby carriage is being altered and challenged in perhaps unprecedented ways, the question arises whether the core of ideas that Schneider identifies with the social institutions of marriage and parenthood still retains force, or whether the core is being redefined. At the heart of many contemporary debates about the state of the Family and Family Law is the question of how to assess challenges to this expected sequence of love, marriage, and the baby carriage. The debate over same-sex marriage visibly raises this issue, as does debate over the question, Who is a legal parent? The Article begins with several examples of current social practices that scramble the sequence of love, marriage, and baby carriage, and considers how such practices both recognize and resist the conventional sequence. It then illustrates how the notion of marriage and parenthood as social institutions and the channelling function feature in several recent judicial opinions addressing challenges to state marriage Laws brought by same-sex couples or defining the boundaries of legal parenthood. It points out parallels between these judicial opinions and arguments made in public debates over marriage about the channelling function and the role of marriage in ordering or managing heterosexuality. It also highlights how the various functions of Family Law are in evident tension in some of these opinions. The Article concludes with several reflections about the continuing relevance of the concept of the channelling function in light of challenges to the conventional sequence of love, marriage, and the baby carriage.
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love marriage and the baby carriage revisiting the channelling function of Family Law
Cardozo law review, 2007Co-Authors: Linda C McclainAbstract:This Article revisits a significant idea at the core of contemporary debates in Family Law: the channelling function of Family Law. This idea is that a basic purpose of Family Law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them. Family Law scholar Carl Schneider helpfully invited attention to this familiar idea some years ago, when he coined the phrase in the aptly titled essay, The Channelling Function in Family Law.1 My contention is that challenges to the conventional sequence of love-marriage-baby carriage posed by changes in social practices, Law, and technology provide a valuable opportunity to revisit Schneider’s notion of the channelling function of Family Law and, in particular, how it relates to other important functions of Family Law. The first part of this Article’s title, readers may guess, comes from a rhyme that I remember from childhood. In it, children tease a boy and a girl—let’s say, David and Doris—who seem to like each other (or, perhaps better, who do not) by chanting: “David and Doris, sitting in a tree, K-I-S-S-I-N-G.” The rhyme continues: “First comes love, then comes marriage, then comes the baby in the BABY carriage.” This childhood rhyme, I suggest, illustrates the channelling function of
Omar Haredeye - One of the best experts on this subject based on the ideXlab platform.
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litigating Family Law economically the case study of my support calculator and lessons for the civil litigation bar
Social Science Research Network, 2012Co-Authors: Omar HaredeyeAbstract:Family Law in Ontario is in crisis, due to the high costs of litigation and high number of self-represented parties. My Support Calculator is the only site in Canada that provides free and accurate child support and spousal support calculations. Providing this information to the public through legal technology could help with the burden on the court system and on litigants who are represented but end up bearing the expenses of resolving these issues on behalf of both parties. Educating the public of the complexities of Family Law, including support calculations, may help recapture the self-represented market through the provision of unbundled services. Similar strategies employed in other areas of litigation could also help bridge the divide between the bar and some members of the public who have resisted securing representation.
