Family Law Act 1975 Assignment

2264 words - 10 pages

Lyndon B. Johnson, a past president of the United States of America, once said, "The family is the corner stone of our society. More than any other force, it shapes the attitude, the hopes, the ambitions, and the values of the child. And, when the family collapses it is the children that are usually damaged. When it happens on a massive scale the community itself is crippled. So, unless we work to strengthen the family, to create conditions under which most parents will stay together, all the rest -- schools, playgrounds, and public assistance, and private concern -- will never be enough."The Family Law Act 1975 (Cth) is the principal law in Australia on matters concerning divorce, property settlement after marriage, spousal maintenance, and issues relating to children's arrangements after separation and divorce (Laing, 2003). The Act not only introduced a single non-fault ground of divorce, but also greatly expanded the scope of federal family law (Australian Government, 2003). It gave the then newly created Family Court of Australia wide powers to make orders for financial adjustment for spouses and children, whether or not the matters arose in connection with divorce. It also created a wide power to make orders relating to custody, access and guardianship of children (Family Court of Australia, 2004). The Act emphasises the obligations of parents and the best interests of the children. All children are covered by the Act, regardless of whether their parents are married, separated, have never married, or have never lived together. However, the Act does not cover property disputes between de facto couples (AustLII, 2000).The principal aim of the Family Law Act 1975 was to reform the law governing the dissolution of a marriage and was a response by the government at the time to what it saw as widespread public dissatisfaction with the existing law (Laing, 2003). The Act was vigorously debated and finally came into force on 5 January 1976. It replaced the Matrimonial Causes Act 1959 (Cth) and superseded State and Territory laws concerning guardianship, custody, access, and maintenance of children of a marriage (Family Court of Australia, 2004).The Family Court of Australia was created by the Family Law Act 1975 to interpret and apply that law to individual cases. This initiative was aimed not only at improving the manner in which separation and marriage dissolution were managed but also aimed at providing specialised facilities and services concerned with the welfare of children of separating couples (Nanlohy, 2002). The Act envisaged that the new court would have judges who were particularly qualified to handle family law matters, counselling and conciliation services, child minding facilities, and circuit services allowing people in rural areas access to the court (Family Court of Australia, 2004). The Family Court also has jurisdiction in some matters under other legislation such as the Marriage Act 1961 (Cth) and the Child Support legislation (Australian Government, 2004). The jurisdiction and the administration of the Court has changed over time as a result of changes to the Family Law Act 1975, in response to recommendations of reviews both internal and external, and the creation of the Federal Magistrates Court. The Court continues to evaluate and improve procedures and processes to support equality of access to justice (Family Court of Australia, 2004).There have been a number of legislative and judicial changes to Family Law since the introduction of the Family Law Act 1975. In 1987, the Federal and State Parliaments passed legislation, the Jurisdiction of Courts (Cross-vesting) Acts, which allowed certain courts in the State and Federal systems to "cross-vest" the civil jurisdiction of a court in the same system or one in the other system (Laing, 2003). In practical terms, this allowed the one court, under certain circumstances, to hear and determine matters that would otherwise have had to be heard in two different courts. The benefit of this scheme was that it saved time and cost (Nanlohy, 2002). In 1999, following a challenge to its constitutional validity, parts of the scheme were no longer able to operate. This now means that matters that come within the jurisdiction of the States such as the property arrangements of the children's parents cannot be heard at the same time as residence or contact in relation to their children (Robinson, 1996). If both children's and property matters arise from the breakdown of a de facto relationship, they must currently be heard in different courts (Law4u, 2002).The Family Law Reform Act 1995 (Cth) which came into force on 11 June 1996 amended significant sections relating to children. All the significant changes to the children's provisions can be found in Part VII of the Family Law Act 1975 (University of Sydney, 1999). The Act introduced clear objects and principles, subject to the paramount consideration "the best interests of the child" (Nanlohy, 2002). The child's best interests include long-term and short-term welfare concerns, consideration of physical and emotional well-being, financial interests, moral, religious and health interests (Law4u, 2002). The amendments reflect the changing attitudes towards the place of children in families and within family law (University of Sydney, 1999). The Family Law Reform Act 1995 moved the focus of family law from parents' rights towards a notion of joint parental responsibilities and increasing awareness of children's rights, including their rights to have contact with and a relationship with both parents (AustLII, 2000).Secondly, the amendments replaced the terms "guardianship", "custody" and "access" with new concepts. These concepts are now embodied in the terms "parental responsibility", "residence", "contact" and "specific issues orders" (Nanlohy, 2002). The changes in terminology were implemented to disrupt the win-lose mentality that was seen to accompany the language, to shift thinking of children as property, and to encourage parents to take an active shared parental role (Law4u, 2002). A parent can now accept responsibilities for various parts of a child's life, i.e. schooling, diet, health care, residence, etc. The intention was to enable parents to have continuing involvement with the child's development and a greater say in bringing up their child (University of Sydney, 1999).The Family Law Amendment Act 2000 made further significant changes to family law. These include the introduction of binding arbitration and binding financial agreements, as well as a new approach to the enforcement of parenting orders. These changes emphasised the desirability of encouraging separating couples to resolve their disputes by agreement rather than litigation (Laing, 2003).The most recent legislative change was the passage of legislation that allows divorcing couples for the first time to be able to split their superannuation in the same way as other assets. The amendments give the Court the power to bind third party trustees to split or flag superannuation interests. As a result, the Court has greater flexibility and discretion to make orders that suit and reflect the circumstances of modern-day divorcing couples (LexisNexis, 2005).Australians are frequently confronted with reports of marriage or de facto relationship breakdowns that involve bitter and sometimes tragic disputes over the children. Media reports of murders and suicides involving children highlight the emotionally volatile nature of this aspect of family law (Teen Health, 2004). The children of separated parents are often caught in a dilemma for which they bear no responsibility, but which causes them great personal anguish. Children can become pawns in a power struggle between their parents or can be used as vehicles for one or both parents to express unresolved and ongoing dissatisfaction with the breakdown of the domestic relationship (Parenting and Child Health, 2005). To assist families in dealing with the emotional trauma that typically accompanies family breakdown, The Family Law Act 1975, along with subsequent legislative and judicial changes, effectively provides a framework which has improved attitudes towards cooperative parenting and the care and responsibility of children (University of Sydney, 1999).Firstly, the role of lawyers in family law is very significant. Their influence can encourage the separating couple to find an agreeable resolution for disputes, which are more likely to be beneficial for the children. It can reduce the immediate distress associated with the marriage breakdown, and help provide a basis for on-going contact between the child and both parents (Family Law Council, 1992).The changes in terminology introduced by the Family Law Reform Act 1995 played a significant role in shaping post-separation parenting options. The possibility of achieving cooperative parenting after a marriage breakdown has been enhanced by the use of terminology which does not carry implications of "owning" the children (AustLII, 2000). Removing terms such as "custody" and "access" from the legal language, and replacing them with language which is impartial and does not bear the mentality of one parent "winning" and the other "losing" with respect to the children, have encouraged both parents to view their parenting roles as continuing beyond marriage breakdown (University of Sydney, 1999).Finally, the introduction of Parenting Plans has been shown to provide a useful framework to guide future relationships between parents and their children. They are quite important to separating couples as they offer a statement of intent as to their long term commitment to their children (Men's Confraternity Inc., 2003). Parenting Plans incorporate a language that recognises the needs of children and responsibilities of parents. They allow for maximum flexibility to meet the changing needs of parents and their children (Nanlohy, 2002).The Family Law Act 1975 both reflected and reinforced a major cultural change in Australian society. The introduction of the Act is perceived as the event which marked the turning point in family composition and interpersonal relations in Australia (AustLII, 2000). Along with the establishment of the Family Court of Australia, it gave a clear public focus to family disputes and family dispute resolution and adjudication. As Elizabeth Evatt, the former Chief Justice of the Family Court, said of the Act, "It can represent the way in which the law either engineers social change, or follows it, or runs parallel with it." (Westmore, 2001)Bibliography1) Australian Government 2003, "Family Law", Attorney-General's Department, [Online] Australian Government 2004, "The family law system", Attorney-General's Department, [Online] Family Court of Australia 2004, "Australian Family Law", Resolving or Determining Family Disputes, [Online] Family Court of Australia 2004, "Family Court of Australia", Resolving or Determining Family Disputes, [Online] Williams, D. 2002, "Changes to Family Law Act", Attorney-General's Department [Online] Nanlohy, S. 2002, "The Best Interests of the Child? The Interaction of Public and Private Law in Australia", University of Sydney [Online] Laing, L. 2003, "Domestic Violence and Family Law", Clearinghouse [Online] LexisNexis 2005, "Family", Legal Research Network [Online] AustLII 2000, "Overview" LIAC [Online] AustLII 2000, "Best Interests of the Child" LIAC [Online] University of Sydney 1999, "The Family Law Reform Act 1995" Family Court of Australia [Online] Law4U 2002, "Changes to the Family Law Act" Lawscape Communications [Online] Family Law Council 1992, "Patterns of Parenting After Seperation" Australian Government [Online] Westmore, P. 2001, "Well-being of families and nation intertwined" Family life [Online] Teen Health 2004, "Family breakdown" Children, Youth and Women's Health Service [Online] Parenting and Child Health 2005, "Family break-up" Children, Youth and Women's Health Service [Online]


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