Essay Instructions: Essay:Case study
Value: 40%
Length: Not to exceed, 3000 words
Task
The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced substantial changes to the law implementing policies related to sharing parental responsibility. Discuss the substantial changes to the law with regards to the following case study (below) and the possible outcome in view of changes to the law and procedure and their impact on court decisions using the IRAC method outlined below:
IRAC is a method which assists in developing legal argument and discussion. IRAC. I = issue, that is, identify the problem; R = rule, that is, rule/s of law which may be found in legislation, the cases or both; A = analysis, where the issues, rules, legislation and cases are discussed and applied to the facts of the problem; C = conclusion, that is, at least a tentative conclusion considering that the law is a dynamic thing and that it, at least in statutory form, may change tomorrow. You normally need to follow this formula (IRAC) several times throughout your answer to a problem situation.
Place yourself in the position of writing this applying the changes to the legislation to the actual case.The case is prior to the changes in the law, however for the purposes of this assessment item, we are not concerned with that. We are seeking to apply the legislation, discuss the Issue, what Rules will apply(see keywords), how will you Analyse this, and Conclude (IRAC).
CASE STUDY
KEYWORDS
Family law ? Children ? Parenting orders ? Residence orders ? Contact orders ? Place of residence of child when one parent wishes to relocate to another country ? Proposals of parents about residence of child of marriage and contact with child ? Wife's wish to return to country of origin ? Wife applies for permission to leave Australia with child ? Whether wife should be permitted to remove child from Australia ? Wife acknowledged that she would remain in Australia if her return to her place of origin would result in order for child to reside with father ? Best interests of child paramount consideration
The parties in this case, both College graduates, were born in Turkey. They married there in 1990. The husband, an engineer, was an Australian citizen, having moved to Australia in 1974 when he was 19. The father's immediate family live also Australia. The mother had worked in both Paris and Berlin before marriage. She had a responsible position as a marketing manager in France and was also an advertising specialist in Germany. The mother has permanent resident status and arrived in Australia 3 months after the marriage. The child of the marriage, N, was born in 1995. The mother stopped working just before N's birth. When she later wished to return to work she found it difficult in Australia, securing only casual, low level clerical work.
The parties separated in July 1996. The wife had very few friends, family or other support in Australia and was unhappy living here. Turkey, on the other hand, offered her accommodation with her better employment opportunities and a life with her financially secure mother. The wife had a strong network of family and friends, including the husband's extended family, in Turkey. Without informing the father, the mother returned to Turkey with N. In addition to leaving the father a note as to her whereabouts, the wife made contact with the husband when she arrived in Turkey.
In August 1996 the husband travelled to Mumbai (INDIA) and instituted proceedings there for custody of N.(Bandura Family Court) (See U v U[2002] HCA 36 5 September 2002S256/2001).( you will need to research and find this case yourself)
In March 1997 consent orders were made granting the mother custody of N until the parties' divorce decree was granted. The mother also consented in those orders to retain N's Australian citizenship until that time.
The mother and N were in Turkey until January 2000. During their three and a half year stay in Mumbai, the father visited N 5 times, on some occasions staying with the mother and her family. The mother returned to Australia in January 1999 to attempt a reconciliation with the father. In June 1999 the father began ex parte proceedings to restrain the mother from leaving the country, as a result of which N's name went on to the 'watch list'. At the same time, he gave the mother return airfare tickets to Turkey for her and N so they could have a holiday there if they wished. The wife then tried, unsuccessfully, to leave Australia, to return to Turkey. She had not advised the father of her plans to leave
Rationale
? To exercise critical and reflective judgment about the function and purpose of the law in modern society in relation to the human services.
? To meet the generic skills of critical reflection, judgment and ethical practice and the objective of effective communication.
? To encourage research on a particular topic.
? To practice evaluating legal material and applying it.
? To practice organising your thoughts into a coherent argument.
? To practice presenting your argument to a reader.
? To develop and practice formal writing skills
Marking criteria
General marking criteria for essay
The general standard against which assessment will be made is that the essay as a whole develops ideas which address the question. The essay must demonstrate unity and coherence. The essay must be written in appropriate academic style, and be legible and properly presented. The following standards must be satisfied:
1. General:
a. Structural issues: The essay demonstrates:
? good grammar;
? good punctuation and spelling;
? good sentence structure; and
? clarity and concision in presentation of argument.
? Paragraphing is used intelligibly. Paragraphs must relate to one another, develop the unity of the essay and be coherent.
Adjacent paragraphs must be connected
.
b. Referencing technique and presentation:
? acknowledgement of sources and compiling of reference list;
? completeness and accuracy of references;
? consistency of referencing method;
? appropriate and correct use of quotes.
2. Research and analysis:
Assessment will be assessed against the following criteria:
? structure and organisation of the essay;
? knowledge of the topic;
? logic of argument and conclusions;
? theoretical understanding;
? quality of theoretical analysis;
? originality of discussion;
? search of literature;
? relevance of literature to topic;
? depth of research.
Marking criteria
In a subject like Law for Human Services you will be tested on your conceptual grasp of the principles of each area. As well as this you will be asked to recognise issues and apply the relevant principles to specific fact situations. This is why the reading of cases or case extracts is important. Cases not only provide a principle but also demonstrate how the law is being applied.
Indeed, you will find that there is rarely a right or wrong answer in most problems and so it is the process of coming to a conclusion that is being assessed. You should presume that the reader knows nothing. Remember your conclusion is not as important as your discussion and analysis. If the conclusion could be simply arrived at, there would be no legal issue -- a case involves two sides arguing diametrically opposite positions. The winner is the one with the best arguments. There is nothing that is so obvious that it should not be written down. In that sense, law is very simple and commonsensical, so do not leave your knowledge in your head. Each step of the way, explain why you have reached a certain position. Use the facts of the given problems when making your arguments. Facts can be quoted in your answers.
Answering legal problems
In a nutshell, legal writing should display competence in literary skills, legal knowledge and arguing ability.
1. Carefully read every word of the problem and identify the issues to be considered.
2. When answering the problem do not preface your answer with a general exposition of the law. You will not get marks for answering a question that was not asked. Answers should be direct and to the point.
3. You should assume the truth of the facts contained in the problem, if you make a presumption of additional facts to highlight a particular legal argument you should indicate in your answer the presumption made.
4. In answering questions which involve stating principles of law it is necessary to cite the relevant legislative provision or case reference to support the principle. When referring to cases you should give the full name of a case, for example, Bloggs v Smith (1970) 111CLR 32. Most law books contain a table of cases giving the full citation for the case. When citing cases, the names of the parties should be in italics or underlined.
5. Do not just give the name of the case. Say what it stands for and what its standing is, that is, whether it is binding authority or not. Do NOT repeat the facts of an authority unless they are very similar to those in the problem you are considering.
6. Generally the problem is not going to be answered by reference to a single case. It is very important to consider the facts of the cases and how they are similar or different from those in the problem.
If there are any differences you must consider whether these differences would be sufficient for the case to be distinguished from the one in your problem or whether in spite of the differences you believe the same principle would be applied in your problem and explain why.
You MUST include a bibliography, a table of cases and a table of statutes where you refer to these in the assignment or paper presented.
Your arguments must be balanced, discussing the authorities both for and against a particular view.
7. What is most important is that you should indicate that you are able to apply principles of law to the facts given and to draw conclusions. A method of helping you to do that is by using IRAC. I = issue, that is, identify the problem; R = rule, that is, rule/s of law which may be found in legislation, the cases or both; A = analysis, where the issues, rules, legislation and cases are discussed and applied to the facts of the problem; C = conclusion, that is, at least a tentative conclusion considering that the law is a dynamic thing and that it, at least in statutory form, may change tomorrow. You normally need to follow this formula (IRAC) several times throughout your answer to a problem situation.
Upon completion of your answer, read over both the question and answer to make sure you have answered the question asked and not some other question.
8. When you attempt the review questions for each topic, you will find a handy answer plan for the first question to get you started.
9. Logical writing, structure of the answer, expression and spelling will all be taken into account in marking answers to problems.
10. Citation of cases in the examination. When referring to a specific legal principle in the examination it may be appropriate for you to refer to (or cite) a particular case which is the authority for, or source of, that principle. You are encouraged to do so. However, it is not a fatal defect in your answer should you not be able to recall the name of the case. The proposition of law for which the case stands is more important for your purposes than the name. However, if you do refer to a case in the examination it is not necessary to provide the full citation of the case. That is, the name of the case, together with the date, volume number, name of the law report and page number. For example, Donoghue v Stevenson [1932] AC 562. You should, however, provide enough information to identify the case, for example, Donoghue v Stevenson, Donoghue's case or the 'snail in the bottle' case may be sufficient.
Standards for marking criteria
In general terms the standards for the marking criteria will be based on the following:
In order to pass this assessment component your essay must be comprehensible to the reader, relevant to the topic, comply with the presentation expectations of formal academic work, be demonstrably based on research and be your own work.
As a general guide the following chart provides guidelines for the issues that are taken into account in considering pass requirements and assessment of higher grades.
Please note the texts for this subject are as follows:
* The Law Handbook - 12th Edition, Redfern Legal Centre Publishing. - Practical guide to the Law in NSW
* Children and the law in australia - Geoff Monahan & Lisa Young - LexisNexis Butterworths
* Integrating Human Service Law, Ethics and Practice - 3rd edition - Rosemary Kennedy . Jenny Richards . tania Leiman
