Family Law, Research Paper Example

Introduction

The legal system takes great gains when trying to fairly make decisions in family court. There are several standards and criteria that courts must follow and adhere to when deciding custody arrangements. The changing society and culture dictates the importance and structure of the modern family unit. The social implications also dictate or influence the legal system that reforms in an attempt to reflect societal changes. The legal system in Australia tries to provide a fair and balance solution to familial problems for all parties involved, however, conflicting interests between parties prove to be a barrier. Within the legal system, the current parenting provision of the Family Law Act 1975 (Cth) is supposed to encourage family courts to make orders for equal shared parenting of children. However, this is not true. This research paper will analyze why the Family Law Act 1975 (Cth) has not done enough in the court system to encourage equal sharing of parenting. With the aid of past and current legislation, case law, and peer journals this research paper will provide a critical analysis relevant to social science research.

Family Law Act of 1975

Times have change and the way that family structures are viewed, differs also. The family structures have become a complex process of splitting responsibilities fairly. The Family Law Act of 1975 (Cth) that established the Family Court of Australia and a precedent for issues arising from marital separation and divorce. Introduced by Senator Lionel Murphy to the Parliament of Australia, it is one of the four acts that supports the family law foundations in Australia. These issues include parenting disputes, property settlements, financial agreements, and others. In general the Family Law Act 1975 (Cth), “An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and to financial matters arising out of the breakdown of de facto relationships and to certain other Matters.”[1] The main purpose of the Family Law Act 1975 was to include the “no fault” approach to marriage separation and divorce. When couples wanted to separate they no longer had to show a reason caused, but only to show argumentative strive within the marriage. The dissolution of marriage was not shrunk down to “irretrievable breakdown” instead of fourteen grounds for obtaining a divorce. This means that the marriage must be broken down to such an extent that it cannot be put back together. The Family Law Act 1975 (Cth) makes the couples live separately or apart for a 12 month period before they can apply for divorce. According to the law, the Property (Relationships) Act the court would divide and separate the property that is equitable based on each partner contributions to the marriage. The Family Law Act 1975 (Cth) provides a blueprint or framework for parents and the courts to share in meaningful involvement within their kids’ lives.

In the Best Interest of the Child

The provisions written into the law are centered on the best interest of the child is the utmost importance. Until the child (ren) reaches the age of 18 both parents have full responsibility for the welfare and care of the child. Within the legislation, Family Law Act 1975 Part VII, about children explicably lays out dealing with the best interests of the child within the court. The other provisions provides information relevant to obligations that relate to the best interests of the child. Written in the Subdivision B of the Family Law Act 1975, states, “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.” [2] Family Law Act 1975 has plenty of issues although introduced to make provisions in divorce easier for families with children, the Family Act 1975 has several inadequacies. One of the biggest inadequacies is its unfair treatment to fathers. Written in the provision for Children,

“Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; and © parents jointly share duties and responsibilities concerning the care, welfare and development of their children.”[3]

During the 1970’s there was a rise in the co-parenting initiative that drove legislation to create law that implemented a “civilized divorce.” [4] The FLA was supposed to always support the best interest of the children, regardless of the children’s relationships with their parents.

Issues with the Family Law Act 1975

The realities of marriage are that women are disproportionally left with financial burdens after divorce. Research has shown that the primary care of the children are usually left into the hands of the mother.[5] “Women do not receive adequate compensation after separation for the economic costs to them of the gendered division of labour within a relationship.”[6] For these women most of their income comes from child support, social security, or other means that found most women teetering if not directly in poverty. The effects of divorce leave many women in dire need of financial assistance. The Family Court of Australia often times awards custody to the mother, believing to be in the best interest of the children. It is seen through several cases that the courts see the mother as the better parent. The fathers have longed argued over the unfairness of this perspective, “For too long mothers have had automatic right to sole custody while loving, good fathers have had to fight tooth and nail, to get more than every second weekend with their own kids.”[7] While the Family Law Act 1975 (Cth) caters to mothers, the fathers are left out in several instances of deciding custody. The amendments made to the Family Law Act 1975 in 1996 and 2006 attempt to solve the problems of mother’s favorability. [8] The objectives of the present 2006 Amendment were to help build stronger relationships in marriage in order to prevent separation, encourage better involvement with both parents in the children’s lives, by giving better effective dispute resolution services, and providing other services to help the entire family. [9]

The Family Law Act 1975 (Cth) instead of encouraging the courts to make decisions for equal sharing for both parents, they instead found in favor of the mothers. Although the Family Law Act doesn’t specify who are the parents, except when including adoptive parents, the biologically parents are usually the ones considered. The Family Law Act 1975 (Cth) not only had issues with the marriage provisions but also, issues in regard to the fathers involvement with share parenting, where the child would live (relocate), and how the child was regarded more as a property rather than a responsibility. Over the past three decades the Australian Court has treated fathers in the cases with the most limited amount of access to the children, thinking it was adequate time for father’s involvement. According to Franklin, in 90 percent of the cases the mother is awarded custody, “and they surely also know that, even the meager access doled out to fathers is routinely thwarted by custodial mothers and that they do so with complete impunity.” [10] Because of the inadequacies that the Family Law Act 1975 provided, many of the father rights groups sprung up the lack of father representation in family court. A paradigm shift was felt by legislation after amended the 1975 Family Law Act because of its issues and inadequacies. The 1996 Amendment provided individually representation in children disputes to protect their rights. [11] The Reform Act was also to ensure that co-operative parenting and maintain parent and child relationships after the separation. In particular, “the overriding object of the Reform Act is “to ensure that children receive adequate and proper parenting, and one of the main principles underlying that object is that parents should “share” the responsibilities for their children.” [12]

The Reform act changed the 1975 not only in meaning but in neutralize terminology, changing the language in the parenting order to reflect the changing family structure. In the Family Act of 1975 the shared responsibilities were mostly seen as an 80/20 split between parents. The mother had the responsibility 80 percent of the time while the father “shared” responsibilities 20 percent of the time.

Unlike in the Family Law Act 1975 (Cth) where children’s responsibility was often litigated between the parents, the Reforms that followed encouraged more parental involvement from both parents. The Family Law Act 1975 didn’t do a lot to encourage co-parenting but instead pointed out that parents have equal responsibilities to the child. [13] The Act points out the equal time shared, however through the courts of law, “If equal time is not appropriate, then practitioners should consider whether substantial and significant time is reasonably practicable and in the child’s best interest.” [14] This benefit one parent and not both. The Act while showing the children as the best interest, and making divorce a civilized situation, didn’t do enough to protect or serve in the best interests of the children. After the Reform Act of 1996 (Cth) was introduce to write the wrongs of the 1975 Act, it was later amended again in 2006, as the Family Law Amendment, (Shared Parental Responsibilities) Act 2006 (Cth). With the introduction of this amendment it provided an emphasis on shared parent responsibilities, and an acknowledgment that parents have the right to a meaningful relationship with their children. [15] Unlike the original act, the new reform act set out to encourage family courts to make orders for equal shared parenting of children. These changes made relocation harder, and helps families to establish better relationships and make arrangements with the court litigation. Overall the new amendments to the Family Law Act 1975 improves the perceived bias that was put in place by the Family Act 1975, exacted by the court systems.

Conclusion

In conclusion, the Family Law Act 1975 (Cth) did not do enough to encourage the family courts to make order for equal shared parenting responsibilities. However, what it did do was encourage a civilized divorce, and a way for the parents to civilly work out their difference during separations. The Act was introduced to work in the best interest of the child, however, there have certain issues that didn’t work in the best interest of the children. The issues left out the father’s involvement, shared equal time and responsibilities, and building relationships after separation with the parent and the child. Amendments made to the Act have help to encourage the courts to make order for equal parenting and shared responsibilities without the involvement of the court.

Bibliographies

A Articles/Books/Reports

Behrens, Juliet. (1996). “Sharing Parenting: Possibilities….and Realities.” 21 Alternative L.J. 213. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/alterlj21&div=53&id=&page=

“Caring for children after parental separation: would legislation for shared parenting time help children?.Family Policy Briefing. “(2011). Department of Social Policy and Intervention. http://www.nuffieldfoundation.org/sites/default/files/files/Would%20legislation%20for%20shared%20parenting%20time%20help%20children%29OXLAP%20FPB%207.pdf

De Simone, Tracey. “’The friendly parent provisions in Australian family law: how friendly will you need to be.” (2008). Australian journal of family law Vol. 22, No. 1, 2008, pp. 56.

Franklin, Robert. (2012). “Columnist: ‘Shared Parenting is the Gold Standard We Should Work Towards.” Fathers and Families. http://www.fathersandfamilies.org/2012/08/02/columnist-shared-parenting-is-the-gold-standard-we-should-work-towards/

Higgins, Daryl, Kaspiew, Rae. “Child protection and family law…Joining the dots.” (2011). National Child Protection Clearinghouse. http://www.aifs.gov.au/nch/pubs/issues/issues34/issues34.pdf

Kaspiew, Rae, Gray, Matthew, Weston, Ruth, Moloney, Lawrie, Hand, Kelly, Qu, Lixia. (2009). “Evaluation of the 2006 family law reforms.” Australian Government. http://192.135.208.240/institute/pubs/fle/evaluationreport.pdf

Kaye, Miranda, Tolmie, Julie. “Fathers’ Rights Groups in Austrailia and Their Engagment with Issues in Family Law. (2003). XyOnline. http://www.xyonline.net/sites/default/files/Kaye,%20Fathers%20rights%20groups.pdf

McIntosh, Jennifer, Chilsolm, Richard. “Cautionary notes on the shared care of children in conflicted parental separation.” (2008). Journal of Family Studies. 14: 37-52.

McIntosh, J. E. (2009), Legislating for Shared Parenting: Exploring Some Underlying Assumptions. Family Court Review, 47: 389–400. doi: 10.1111/j.1744-1617.2009.01263.x

Nicholes, Sally. (2006). “New shared parenting requirements oblige practitioners to consider their advice to clients applying for orders relating to children.” Law Institute of Victoria. http://www.liv.asn.au/Mobile/Home/Law-Institute-Journal/Article?NodeID=39086&NodeParentID=39081

Rhoades, Helen, Graycar, Reg and Harrison, Margaret, The Family Law Reform Act 1995: The First Three Years (2001). Australian Family Lawyer: The Journal of the Family Law Section of the Law Council of Australia, Vol. 15, No. 1, pp. 1-8, 2001. http://ssrn.com/abstract=1170057

Rhodes, Helen. (n.d). “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform. Federal Law Review. Vol. 36. http://flr.anulaw.anu.edu.au/sites/flr.anulaw.anu.edu.au/files/flr/Rhoades.pdf

Rhoades, Helen. (2000). “Child Law Reforms in Australia-a Shifting Landscape.” 12 Child & Fam. L.Q. 117. http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/chilflq12&div=16&id=&page=

Van Krieken, R. (2005), The ‘Best Interests of the Child’ and Parental Separation: on the ‘Civilizing of Parents’. The Modern Law Review, 68: 25–48. doi: 10.1111/j.1468-2230.2005.00527.x

C Legislation

Family Law Act 1975 (Cth)

Family Law Act 1996 (Cth)

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

E Other

First Instance Judgments. Family Court of Australia. http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/judgments/First_Instance/

Family Law Act 1975 – SECT 60CC. Commonwealth Consolidated Acts. http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html

[1] Family Law Act of 1975. (Cth)

[2] Ibid.

[3] Family Law Act 1975 (Cth) Section 60B.

[4] Van Krieken, R. (2005), The ‘Best Interests of the Child’ and Parental Separation: on the ‘Civilizing of Parents’. The Modern Law Review, 68: 25–48. doi: 10.1111/j.1468-2230.2005.00527.x

[5] Behrens, Juliet. (1996). “Sharing Parenting: Possibilities….and Realities.” 21 Alternative L.J. 213.

[6] Ibid.

[7] Franklin, Robert. (2012). “Columnist: ‘Shared Parenting is the Gold Standard We Should Work Towards.” Fathers and Families.

[8] McIntosh, J. E. (2009), Legislating for Shared Parenting: Exploring Some Underlying Assumptions. Family Court Review, 47: 389–400. doi: 10.1111/j.1744-1617.2009.01263.x

[9] Kaspiew, Rae, Gray, Matthew, Weston, Ruth, Moloney, Lawrie, Hand, Kelly, Qu, Lixia. (2009). “Evaluation of the 2006 family law reforms.” Australian Government. http://192.135.208.240/institute/pubs/fle/evaluationreport.pdf

[10] Above n.

[11] Rhoades, Helen. (2000). “Child Law Reforms in Australia-a Shifting Landscape.” 12 Child & Fam. L.Q. 117.

[12] Above n.

[13] Family Law Act 1975 (Cth). Section 60CC.

[14] Nicholes, Sally. (2006). “New shared parenting requirements oblige practitioners to consider Their advice to clients applying for orders relating to children.” Law Institute of Victoria. http://www.liv.asn.au/Mobile/Home/Law-Institute-Journal/Article?NodeID=39086&NodeParentID=39081

[15] Rhodes, Helen. (n.d). “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform. Federal Law Review. Vol. 36.