However, the most significant area of family law in attempting to appropriately respond to disputes are the legal consequences which follow a divorce. As both marriage and its dissolution are legal processes, there are various considerations for the court and all relevant parties subsequently affected must take into consideration. Divorce is a simple process, but the other matters take negotiation and time, particularly in the areas of children and property division.
CHILDREN: In all family law matters concerning children, the legal processes attempt to maintain the core principles of the CROC. Under the FLA 1975 s55A, declares that a divorce order in relation to a marriage does not take effect unless the court is satisfied that; there are no children of the marriage who have not attained 18 years of age, or if there are that they are specified in the order and that there are proper arrangements in all circumstances made for the care, welfare and development of those children. Additionally, this understanding manifests in the shift in parental responsibility, whereby The Family Law Reform Act 1995 (Cth) involved a conceptual shift in terminology when determining parenting orders. That is, the shift from ‘Custody‘ to ‘Access’ and, later under The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) being ‘Live With’ ‘Spend time with’ and ‘Communicates with.‘ Whilst these reforms gained negative stigma, being criticised for mere conceptual shift in terminology as opposed to incorporating any actual parenting plans they nonetheless paved the way for a positive shift toward the adequate care and protection toward children.
EFFECTIVENESS: In effect, these 2006 amendments mean that when the courts make an order about children the presumption is that it will be in the BIC. It also stresses that parents can work out their parenting arrangements without interference of the court, highly effective in removing the nature of an adversarial system in situations that are complex and involve conciliation, and ultimately, there is the understanding that individuals should be allowed to make their own decisions about their family. These agreements can be informal, in the form of a parenting plan or consent orders, thereby effective in reducing the burden on the courts and the time for individuals involved in the traditional court processes. In particular, as parents must attempt dispute resolution before they can apply to the Federal Circuit court to make a parenting order, further reinforcing the resource efficiency of this act.
The paramount concern is the idea of parental responsibility and it is the underlying principle of the law regarding children and operates until children reach adulthood. In deciding what is in the best interests of the child, the Act required a court to take into account two tiers of considerations in order to reflect the BIC – primary and additional. Primary considerations include;
– the benefit to children of having a meaningful relationship with both parents,
– and the court being required to give greater weight to the consideration of the need to protect children from harm.
Additional considerations include;
– the child’s views and factors that might affect those views, such as maturity and level of understanding
– the child’s relationship with each parent and other family members
Through this, justice is achieved for family members and society to a great extent – increasing the autonomy of children and giving them a vital role in legal processes which ultimately have immediate, and serious impacts on the individual.
The effectiveness of these clauses can be seen in comparison to Article 9 of CROC, in aiming to uphold international norms that children must be adequately cared for where possible and that children have the right to have contact with both parents if it is in the BIC.
INEFFECTIVENESS: However, the 2006 act does not distinguish between shared responsibility and shared parental care, resulting in many parents now wrongly believing they are entitled to fifty-fifty access time with their child. The amendment also now requires the court to always consider equal shared time between parents, as children have a “right to a meaningful relationship with both parents.” This section, whilst morally laudable, has unintentional consequences by potentially exposing children to abusive parents when shared time is not necessarily in the best interests of the children. As in the case of Rosa v Rosa, (2008) where the High Court overruled the Family Court’s decision to force a mother to reside in a caravan, living off welfare payments so that a fifty-fifty time-share arrangement could take place.
This inconsistency is in despite of, Goode v Goode (2006) which was significant in its establishment of precedence that there is no guarantee to fifty-fifty share time. However, this case provided equal shared parental responsibility and the right of the child to form meaningful relationships with both parents was enforced. These inconsistencies have continued, as is highlighted in R v Serutawake 2014 (NSW) where a parent was sentenced to 16 years imprisonment for domestic violence, reinforcing the issues of non-compliance in family law. Thus, the lack of enforcement mechanism manifests throughout family law, as the legislature cannot create laws to make people cooperate and judges cannot reasonably impose equal shared parental responsibility on parents that are unwilling or unable to make it work.
PROPERTY: An additional consideration is property division, decided on the basis of contributions (both financial and non financial) as well as the future needs of both parents. Sometimes, binding financial agreements are entered into in contemplation of marriage, whereby the purpose of these agreements is to protect parties in the event of a marital break up and also to provide certainty. It is notable that the legal system provides that each party must receive independent legal advice to ensure that the division cannot be inequitable or unjust and as per the FLA there cannot be a material change in circumstances.
In 2008 the Federal Court in the case of Black v Black (2008) held that for an agreement to be binding there needed to be strict compliance with the procedures of s90G under the FLA or the BFA is invalid. Following this case, the government amended the act under the Family Law Amendment (Validation of certain parenting orders and other measures) Act 2010 (Cth) to relax the technical requirements for an agreement to be binding. Thus, aiming to reduce complexities of law by providing courts with discretion to uphold an agreement even were certain technical steps were not taken. This was strengthened in the case of Wallace V Stelzer (2011) which held the validity of BFA’s as a result of these amendments. Similar agreements can be made by De Facto Couples under the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). However, whilst effective as a preventative measure, safeguarding the rights of parties BFA’s are expensive and thus ineffective in resource efficiency.
Moreover, prior to the FLA 1975 (Cth) women were not seen as financial contributors to relationships, however the contribution of the primary care-giver which is generally the woman is now considered equal to the financial contributions of the income earner, effectively increasing equality in property division. However, throughout the years where BFA’S are not entered into, precedence has become a significant factor in the division of property as uniform application would not adequately take into consideration the complexities of family situations. In the context of family violence, the case of Kennon v Kennon (1997) established that the wife’s non-financial contributions as a homemaker were increased because they were made more difficult as a result of the husband’s violence towards her. Additionally, in the case of Kowaliw v Kowaliw (1981) the financial losses to property caused by negligence, alcoholism and gambling of one party did not have to be shared by the other party. These cases reflect the attempt to ensure the best interests of all parties in family law as it involves sensitivity and conciliation.
CONCLUSION: In evaluation of the question..
It is apparent that the legal system aims to balance the difficulties involved in responding to family breakdowns, and is morally laudable by stressing the BIC as paramount. However, due to inconsistencies with compliance and the difficulties in monitoring the responsibility of a parent, many children are exposed to issues of DV. In the context of property disputes, the ls aims to prevent difficulties through the use of BFA’S and recognises the equal distribution of financial contributions as well as divisions.