Family Law Assessment Essay

‘Evaluate the effectiveness of the law in achieving justice for parties involved in relationship breakdowns.’ Society’s changing social values towards the notion of ‘family’ has resulted in the legal system attempting to reform the law to reflect these changes. Due to the range of family types that exist today, relationship breakdowns have become complex. The legal system aims to provide a fair and equitable outcome for parties; however, this is a challenge due to conflicting interests of parties.

This essay will discuss the following issues of relationship breakdowns: financial agreements, compulsory family dispute resolution, the best interests of the child and domestic violence. Financial agreements are a mechanism designed to achieve a just outcome for parties in relationship breakdowns. The ability of both parties to negotiate agreeable terms in financial agreements achieves a fairer and equitable outcome than one that would result out of litigation. In addition, financial agreements have time and cost benefits, are accessible to both married and de facto couples and are legally binding under the Family Law Act 1975 (Cth).

Hence, the Family Court cannot override the terms of a binding financial agreement unless one of the parties can prove that it is void. In the case of Kostres and Kostres [2009] FamCAFC, the parties had executed a pre-nuptial agreement with the intention to mutually share the assets obtained during marriage in the event of a divorce. Mrs Kostres sought to uphold the terms of the agreement but dispute arose regarding the interpretation of the agreement.

On appeal by the husband, the Full Court nullified the financial agreement due to the difficulty in determining the intentions of the parties. Although financial agreements are aimed at achieving justice for parties, this case indicates that interests of parties become conflicting as the relationship breaks down, hence undermining the original intentions of the agreement. This leads to the Courts intervening and determining the terms of the agreement, thus, removing the original benefits of the financial agreement. Another mechanism with the purpose of avoiding litigation is family dispute resolution. Under the Family Law Act 1975 (Cth), it is compulsory for separating couples to undertake family dispute resolution in cases involving children.

The article ‘Marriage counselling facing cuts to enable a boost in legal aid’ (Adele Horin, Sydney Morning Herald, 13 May 2010) highlights the success of Relationship Centres in reducing the amount of child-related parenting matters reaching court, with a greater proportion of parents able to resolve issues. This is successful in achieving justice as parties are more likely to comply with the terms of a parenting plan negotiated by both parties and prevents the negative influences of litigation on children. Despite the success of family dispute resolution, the government has decided to reduce the accessibility to free mediation.

Decreasing funding has implications of encouraging parents to use the courts to resolve disputes, however, litigation has proven to be less successful in achieving justice due to lack of discretion the two parties have in the dispute process. In instances where a custody dispute does reach the court, the primary consideration is placed on the child. The reason for this is their recognised vulnerability under the Convention on the Rights of the Child (CROC). CROC is reflected in Australian family law where the ‘best interests of the child’ are paramount when making decisions concerning children.

The introduction of the presumption of ‘equal shared parental responsibility’ (ESPR) under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (Shared Parental Responsibility Act) recognises that it is in the ‘best interests of the child’ to have a meaningful relationship with both parents. This law attempts to protect the rights of the child by placing responsibility on parents to provide for the welfare of their child, however, this in turn undermines the rights and choices of the parents.

This is seen in cases concerning the relocation of one parent where their rights are dismissed when determining what is in the ‘best interests of the child’. The article ‘When parental relocation leads to a ‘tug-of-love’ legal headache’ (Farah Farouque, 7 April 2012) discusses the difficulties in achieving an agreeable outcome in relocation cases. In these instances, relocation is seen as impractical for granting equal or substantial time with both parents. In Australia, there are no laws regarding the issue of relocation, hence, it is up to the discretion of courts to determine outcomes according to the ‘best interests of the child’. In the case of MRR v GR [2010]

HCA, a mother was ordered by the court to remain living in Mount Isa with her child so that the parents could have equal shared care, leaving her isolated from her family in Sydney with no job prospects. In this case, justice was not achieved for the mother where the court found that the ‘best interests of the child’ overrode her right to freedom of movement. This shows the ineffectiveness of the law in achieving justice for parents due to the lack of recognition of their rights under the paramount consideration of the ‘best interests of the child’. Another issue in relationship breakdowns is the prevalence of domestic violence.

In relationships involving domestic violence or abuse, the victim can seek to place criminal charges on the offender under state law such as the Crimes (Domestic and Personal Violence) Act 2007 (NSW) or apply for an apprehended domestic violence order (ADVO). ADVOs (and other intervention orders) are beneficial in that they are resource efficient, accessible and compliant by law-abiding citizens. However, the enforceability of ADVOs is limited and fails to physically deter offenders. In the case of R v Ramazan Acar [2011] VSC, an intervention order was placed on Ramazan Acar to protect his ex-partner from his abuse.

This court order prevented him from seeing his daughter Yazmina and subsequently resulted in Acar murdering his daughter as retribution to his ex-partner. In this case, conflicting interests of the parents for the custody of Yazmina resulted in her being the victim of warring parties, depicting the failure of the court order in ensuring her safety and protecting her from an unjust death. Hence, it can be seen that courts increase the animosity in relationship breakdowns, diminishing the justice achieved for parties, especially children who are vulnerable in these situations.

The article ‘The kids are not all right’ (Andrea Petrie and Michelle Griffin, The Age, 17 August 2011) highlights the failure of the legal system in protecting victims of domestic violence. This article argues that the Family Court’s lack of jurisdiction to investigate allegations of domestic violence and child abuse, means there is hesitancy to make allegations due to the fear of costs being awarded to unproved allegations. For this reason, the government has reformed the law by implementing the Family Law Legislation (Family Violence and Other Measures) Act 2011 (Cth).

This legislation has expanded the definition of family violence beyond violent behaviour to take into account emotional, financial and psychological abuse. This piece of legislation has recently been implemented; hence, its effectiveness is undetermined. However, there has been mixed reception by different parties regarding the influence of this legislation on addressing domestic violence.

The article ‘Net widens on family violence’ (Stephanie Peatling, Sydney Morning Herald, 3 June 2012) depicts these conflicting social values on the legislation, where women’s groups are satisfied that the amended definition will increase emphasis on children’s safety. However, male parties such as the Lone Father’s Association argue that this change has the ability to increase false allegations of domestic violence as a means for sole custody.

This article indicates the inability of the law in meeting the social values of all parties, thus, limiting its ability to achieve a just outcome for different parties due to conflicting perspectives. Australian family law places emphasis on the ‘rights of the child’, hence, parents involved in relationship breakdowns are given responsibilities, rather than rights. For this reason, unjust outcomes between parents and children arise out of litigation and this can lead to non-compliance with court orders. Therefore, mechanisms that are out-of-court such as financial agreements and family dispute resolution are more effective in achieving justice for parties due to its accessibility, responsiveness to the interests of different parties, whilst still protecting the rights of any children involved.

BibliographyFarouque, F. (2012) ‘When parental relocation leads to a ‘tug-of-love’ legal headache’, The Age, 7 April. Fife-Yeomans, ‘Family Court Chief Diana Bryant says coercion is often of more concern than physical abuse’, The Daily Telegraph, 20 July. Horin, A. (2010) ‘Marriage counselling facing cuts to enable a boost in legal aid’, Sydney Morning Herald, 13 May. Horin, A. (2012) ‘Judges rarely meet young in parenting disputes, says study’, Sydney Morning Herald, 26 May. Peatling, S. (2012) ‘Net widens on family violence’, Sydney Morning Herald, 3 June. Petrie, A. Griffin, M. (2011) ‘The kids are not all right’, The Age, 17 August. Ross, N. (2011) ‘Ramazan Acar jailed for life over murder of daughter Yazmina’, Sydney Morning Herald, 2 July. (2009) ‘Kostres & Kostres’ [2009] FamCAFC 22, Family Court of Australia < http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/222.html> (2010) ‘Family Court Bulletin Issue 6’, Family Court of Australia, July. < http://www.familycourt.gov.au/wps/wcm/resources/file/eb394c0ce37e52d/FCB_July2010.pdf>