In this day and age there are many variations of what constitutes a couple or family in comparison to many years ago. Long ago the idea of a ‘nuclear family’ was considered the norm; it consisted of the conventional husband, wife and children . But as our society progressed through the years this definition became less conventional and criticisms were made, this definition of ‘family’ did not account for gay unions, soul parents nor did it acknowledge the prevalence of extended family. The definition of family has changed over time, as have the socially defined roles of mothers and fathers. Within these varied family units, situations occur in which divorces and separations take place and a lot of the times these tricky situations may involve children, which can make an already tricky situation even more problematic. There are pieces of legislation which are in place which aim to protect the best interests of a child during the time their parents are going through divorce but sometimes these avenues can be more problematic and ultimately destroy unions whereas other avenues of dispute resolution such as mediation, albeit with its own criticisms, helps to keep relationships afoot in that it provides an opportunity for peaceful and mutual agreements to be made in a more laid back environment.Order now
In the Commonwealth of Australia’s Constitution Act s 51, powers of the Commonwealth Parliament to legislate on family law subjects is laid out, it states:
“The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxi) Marriage: (xxii) Divorce and matrimonial causes; and relation thereto, parental rights and the custody and guardianship of infants”.
Under this provision of their powers, the Commonwealth has defined the concept of marriage in the Marriage Act 1961 (Cth) as a ‘voluntary union by a man and a woman to the exclusion of everyone else voluntarily entered into for life’ . This historical definition was derived from the case of Hyde v Hyde and Woodmansee (1866) and denotes monogamous, heterosexual relationships; this restriction on the term ‘marriage’ has prevented the parliament from legislating in respect to de-facto and homosexual couples. However the Victorian Parliament has developed the Relationships Act 2008 (Vic) which recognises and registers the relationships between two people who aren’t married irrespective of ones gender.
In the year 2010 there where 50, 240 divorces granted in Australia alone . Under the Family Law Act (FLA) a divorce can not be filed within the first two years of the life of the marriage without court permission, unless a certificate is filed with the application. This certificate would state the two individuals have considered reconciling with a marriage counsellor or an appropriate officer of the family court. There are three main grounds for divorce, which are listed under sections 48 to 50 of the FLA; it is asked whether the ‘consortium vitae’, the life blood of the marriage has ended.
When a couple is divorcing there are many factors to be taken into consideration; such as, division of property and other assets and most importantly children. Since 2007 the Family relationship centre has been the first stop for family disputes, there are over 60 centres Australia wide. The argument comparing the efficiency of the historic dispute resolution method of court procedures and newer avenues such as mediation and arbitration have been widely discussed and debated. Usually in relation to neighbourhood disputes; the more informal, inexpensive and time consuming ways of alternative dispute resolution are seen to triumph over the procedures of litigation. Mediation is a form of conflict resolution which is based upon the assumption that parties to a dispute are capable of both negotiating and approaching an appropriate solution to a particular issue through the facilitation and aid of a mediator guided by the specific principles of mediation. People choose mediation as a means of settling a dispute because it allows for all parties to themselves resolve the dispute and find a solution in a neutral environment.
There has been a significant change in Australian family law towards mediation and shared parental responsibility. The point of family dispute resolution is to get the parents to reach a decision for themselves (a parenting plan), or what is known as ‘cooperative parenting’. Furthermore, the primary concern is maintaining a meaningful relationship between both parents and all children in the family after separation and all responsibilities are spread equally. The moment a child is born, parental responsibility is attached. Focus is moved from the parents towards the best interests of the child; the idea that children are viewed as ‘property’ is completely eliminated. In 1995 the idea of guardianship morphed into what we now know of parental responsibility, under the Family Law Reform Act 1995 (Cth). Other objectives include; the direction of consideration towards the rights of children rather then the needs of parents, and the further encouragement of parents to make private agreements regarding the care.
In July 2007 key amendments were made to the Family Law Act which requires parents to attend family dispute resolution. This means making a genuine attempt at resolving the dispute before applying to a court for a parenting order, it states that “…all persons who have a dispute about matters that may be dealt with by an order under this part make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for” . Mandatory mediation is required for all disputes except when there are instances of violence evident or there would be a risk of abuse if there was a delay in applying for the order.
A Parenting order sets out in binding format which parent the child is to live with, the time a child is to spend with the other parent and allocation of parental responsibility.
When considering resolutions to the dispute which would be in the best interests of the child/children, under section 61DA courts make the legal presumption of equal shared responsibility whenever a parenting order is made, that both parents have an equal role whenever long term decisions must be made in regards to issues involving the children . The ‘best interests’ principle is vital when developing parenting orders; ‘interests’ include matters relating to a child’s welfare, care and development . Section 60CC of the FLA lists the primary concerns and considerations in determining the best interests of a child as the “benefit to the child of having a meaningful relationship with both of the child’s parents and need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” . It also considers the willingness and ability of a parent to facilitate a close relationship with their child, the nature of the relationship with a child and the views of the child itself.
There are two tests which can be applied when a parenting order is made. The first is a presumption of Equal Shared Parental Responsibility, when it is in the best interests of a child to have both parents share the responsibility equally (s 61DA). If it is found that equal time and shared responsibility is not reasonably practicable nor in the best interests of the child, a court would then apply a second test, of substantial and significant time. A child is taken to spend substantial and significant time with a parent if; the child spends time with a parent which includes days that do and do not fall on weekends and/or holidays, and the time that is spent together allows a parent to be apart of the child’s daily routine and occasions of significance to the child . The case of Goode v Goode dealt with the application of the new Part VII of the FLA, since the introduction of the Family Law (Shared Parental Responsibility) Act 2006. If the presumption applies and it is practicable for an equal sharing of parental responsibility an order is made to that effect, if it is neither practicable or in support of the child’s best interests an order of substantial or significant time will be considered.
There are criticisms levelled towards both mediation and litigation when it comes to family disputes. The litigation process can be very physically, emotionally and monetarily draining for adults and these effects (bar monetary) can have an overwhelming effect on a child at such a distressing time. Litigation does not take into account the complexity of family life; court appointed parenting orders would only apply effectively to a particular demographic in our society and also assumes a particular type of relationship is in place to begin with; one where the parents are able to commit to such duties and schedules or would follow the order in a cooperative manner. Cultural considerations are also not taken into account, which is vital as different cultures hold different ideals as to what is a ‘meaningful relationship’. Courts apply a ‘one size fits all’ approach to the resolution of family disputes and sets out guidelines of how people ‘ought’ to be acting. The age of the child themselves has an impact on their ability to understand and voice their own view on the situation and their own needs and concerns. A positive of litigation is that it stipulates and requires a court to consider any views expressed by child/children when deciding to make a parenting order . Yet it does not require or force a child to express their view in relation to any matter concerning the order . Mediation holds its own faults which can decrease the effectiveness of the dispute resolution process. A major fault of mediation as an avenue dispute resolving as a whole is that it may conceal inequalities between the disputing parties and one party could become more vulnerable than the other. This could be due to a lack of knowledge about legal issues or due to feelings of intimidation felt towards the other disputant. The ability and willingness of the parents to come to an agreement will greatly affect the ability of a parenting plan to be made. Their willingness to cooperate may hinder the process. One of the fundamental aspects of alternative dispute resolutions is that it is voluntary. As amendments have been made to legislation it appears to remove this voluntary aspect of the process and forces parents to discuss and develop their own remedy when it might not be feasible in cases where parties are not willing to cooperate.
Although both avenues of resolution have downfalls, mediation as a form of family dispute resolution will become a compulsory part of the process. Although maybe not ideal in all cases, this process will at least give parents the opportunity to work out differences and come to agreements on their own terms which will benefit children in an environment they can stay together and feel comfortable in.
Australian Bureau of Statistics, 3310.0 – Marriages and Divorces, Australia, 2010, accessed 10 April 2012 http://www.abs.gov.au/ausstats/[email protected]/Products/CC6BED7266C21AD4CA2579570013BF0F?opendocument
M Ebejer & E Mills, 2010, Family Law, 4th edn, Lexis Nexis, Australia
McDonald, P 1984, Can The Family Survive? – Change in Australia, Discussion Paper no. 11, Australian Institute of Family Studies, accessed 10 April 2012 http://www.aifs.gov.au/institute/pubs/dp11.html
Commonwealth of Australia Constitution Act s 51, Prepared 2003,
Accessed 3 April 2012, http://fedlaw.gov.au/comlaw/comlaw.nsf/440c19285821b109ca256f3a001d59b7/57dea3835d797364ca256f9d0078c087/$FILE/ConstitutionAct.pdf
Commonwealth Consolidated Acts, Family Law Act 1975, Australasian Legal Information Institute (Austlii), http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/
Goode v Goode (2006) FamCA 1346 (http://www.familylawwebguide.com.au/attachment.php?id=43&keep_session=21863255)