Legal and Non-legal Responses to Relationship Breakdowns

Evaluate the effectiveness of legal and non-legal responses in achieving justice for parties involved in relationship breakdowns.

When dealing with issues surrounding relationship breakdowns, both the law and non-legal responses aim to achieve the utmost justice to parties involved. The law attempts to provide equality for married couples, de facto relationships, same-sex couples and ensure the best interest of the child through various legislative reforms including: ‘Family Law Regulations 2007’, ‘Family Law Amendment (Shared Parental Responsibilities) Act 2006 (Cth)’, ‘Family Law Amendment (De facto Financial Matters and other measure) Act 2008’, ‘Family Law Legislation (Family Violence and other Measure) Act 2011’ and ‘Same-Sex relationships (Equal Treatment in Commonwealth Laws- General Law reform) Act 2008 (Cth)’. These reforms have been effective at responding to issues as they are enforceable and allow for increased protection for vulnerable individuals which ultimately meet society’s needs. On the contrary, they are slightly ineffective as are not always responsive to issues. Furthermore, the government body ‘Family and Community Services (FACS)’ aims to protect vulnerable individuals of the community, while, the ‘Federal Circuit Court of Australia’ and ‘Family Relationship Centres’ implement alternate dispute resolution including Arbitration and Mediation between parties. Complementary non-legal responses include the Media which aims to raise awareness of any incompetence of the law when dealing with issues of relationship breakdowns and Relationships Australia is a non-profit organisation that offers nationwide services, thus achieving justice for parties involved.

Under the recent legislative framework ‘Family Law Regulations 2007’ the new system of compulsory family dispute resolution was introduced and included regulations for registration and accreditation of FDR practitioners. It made it compulsory for divorcing/separating parents and people in a de-facto relationship to attempt mediation in order to resolve issues including financial, property dispute and child custody. Otherwise, parties needed to get a certificate from the practitioner stating that FDR failed for a judge in court to make an order. According to a commission report released by the AIFS ‘Post Separation Parenting’ (2014), the study found that majority of parents after five years of FDR were able to sort out their parenting arrangements and only 5% expressed safety concerns. This aimed to reduce the number of children’s cases that needed court-based interventions. Additionally, parenting orders are binding and legally enforceable making it more accessible, economical and faster than lengthy court processes. However, in many cases parents were only going to FDR because they had to get a certificate for court.

Furthermore, the role of family consultants in ‘Family Relationship Centre’s’ was redesigned with the introduction of Collaborative Law whereby lawyers help parties work out arrangements without going to court, if an agreement doesn’t occur the same lawyers can’t take the case to court. Ultimately, this proves to be resource efficient as it is cheaper and less timely than a divorce process. However, this system is difficult to enforce in high conflict cases.

The ‘Family Law Amendment (De facto Financial Matters and other measures) Act 2008’ and the ‘Miscellaneous Acts Amendment (Same-sex Relationships) Act 2008 (NSW), introduced a multitude of reforms for opposite sex and same-sex de facto couples as it allowed them to access the federal family court to settle disputes of property and financial matters and recognised their children. This came about due to increase as in 2009 there was approximately 25% between the age of 18-24 in a de facto relationship (ABS, 2009) and evidently mirrors society’s changing values. It also gives de facto couples accessibility to the legal system by allowing them to have their relationship break down dealt with by the Family Court increased equality and removes discriminatory treatment.

The ‘Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)’ introduced the most significant changes to the original ‘Family Law Act 1975’.  It contained the provisions for shared, co-operative parenting and equal decision-making and responsibility after separation. It presumes that consultative and private decision rather than litigating is in the best interest of the child allowing them to have a ‘meaningful relationship with both parents’. Ultimately, this provides equality and justice for separating parents as they given equal time with their children and makes court process less adversarial in children’s matters. In a SMH report by Fehlberg (2010), it stated that shared parenting reforms discouraged mothers from reporting about family violence with the presumption that family courts will order shared care anyway. This shows the misunderstandings made by the act as it reduced reporting, additionally, the making of the bill was influenced by extensive lobbying from father’s groups causing a lack of justice.

The ‘Family Law Legislation (Family Violence and other Measure) Act 2011’ was introduced after research suggested that 2006 reforms lead to increase rates of family violence and child abuse in relationship breakdowns. The definitions of family violence were changed to include ‘controlling behavior’, stalking, verbal abuse and psychological abuse to better protect the best interest of the child and as they are deemed to be the most vulnerable. Additionally, it strengthened how courts deal with allegations, making it obligatory for judges to ask the parties of any ‘concerns’ of family violence. In the case of Usyal and Mardine (2014), the Family Circuit Court ruled that the mother and her child can flee the country in response to the father’s extreme abuse, jealousy and control. This demonstrates that the legal system provides justice for victims of domestic violence through priotising and providing increased protection including ‘Apprehended Violence Orders’ over shared responsibility. For this collaborative parenting doesn’t apply.

In response to increased neglect and violence towards vulnerable individuals in the community the statutory body was established ‘Family and Community Services (FACS)’. Through the employment of social workers FACS works to protect children from abuse and neglect, people experiencing domestic violence, support disabilities and assist indigenous Australian communities. In the case of ‘R V BW & SW (2009)’, ebony a 7 year-old was diagnosed with autism and died in 2007 as a result of neglect and starvation over a 20-month period. There was much media outrage as it was the most severe case of malnutrition and the idea that a girl could starve to death without the school realizing and notifying DOCS (at the time). As a result, it shows the lack of responsiveness and protection by FACS as it wasn’t able to protect a child with autism. However, they are trying to make their services more accessible by investing over $190 million (FACS, 2016).

The ‘Federal Circuit Court of Australia’ is administered under the ‘Family Court of Australia’, whereby all applications of family matters under FLA must be made there first. The court has jurisdiction over parenting, property cases and responsible for granting divorce applications. Under the new reforms it also allows same-sex and opposite-sex de facto’s to file applications in relation to relationship breakdowns. According to the AIFS the Family Court of Australia dismissed the proceedings initiated in the Garning Case (2012), as it found that the four Italian girls were wrongfully abducted by their mother, for this reason they were returned to their father in Italy under The Hague Convention. Through the enforcement of legislations and by appointing ‘Independent Children’s Lawyers’ to represent children, courts effectively meet societies needs by providing equality and justice. However, court cases can be timely and costly making it resource inefficient.

The Media plays a vital role in informing the community on important matters and any government incompetence. Through raising awareness of important issues, they can push for reforms to achieve the utmost justice for parties involved in a relationship breakdown. For example, there was much media outrage in the ‘Darcy Freeman Inquest’ (2015), as according to ABC’s McGhee, Victorian doctors were aware that Arthur Freeman was violent and suspected child abuse but did not report him to authorities before he threw his daughter Darcey from Melbourne’s Bridge. An inquest was heard and investigations commenced on whether improvements child protection should occur. Through informing the community of outraging relationship breakdowns it is meeting societies needs as they can be responsive.

Relationships Australia is a non- profit organisation that offers nationwide services including counselling, FDR, Family Violence prevention, children’s contact service, elder relationship services and range of other support programs. According to a media release by Relationships Australia on June 8, will provide counselling and mediation services to support families who need help negotiating complex issues related to aging and reduce the rates of elder abuse and to establish respect for older family members. This evidently meets societies needs as it protects elders from abuse of their caretakers and provides them with accessibility to different free resources.

Ultimately, it is through legal and non-legal responses that justice is awarded to parties of a relationship breakdown. The Australian legal system has effectively responded to changing social values and uprising issues through various legislative reforms. These reforms have been effective due to the protection of vulnerable individuals in a relationship, equality being awarded to de facto relationships and by providing better accessibility to the legal system. On the contrary, some reforms have made it harder for victims of domestic violence to report abuse and private dispute resolutions does not always work with high conflict cases. Additionally, non-legal responses have been highly responsive to the increasing need of support to parties involved in relationship breakdowns.

BIBLIOGRAPHY

• Cheung. 2014. Same-Sex Parents Who Separate: Who gets the Children?. [ONLINE] Available at: http://www.familylawexpress.com.au/family-law-brief/familylawcourts/precedent/same-sex-parents-who-separate-who-gets-the-children-and-on-what-basis/2798/. [Accessed 16 June 2017].
• Rhoades. 2015. THE DANGERS OF SHARED CARE LEGISLATION: WHY AUSTRALIA NEEDS (YET MORE) FAMILY LAW REFORM. [ONLINE] Available at: https://flr.law.anu.edu.au/sites/flr.anulaw.anu.edu.au/files/flr/Rhoades.pdf. [Accessed 16 June 2017].
• DIY Family Law Australia. 2017. CHILD ISSUES AND PARENTING. [ONLINE] Available at: http://www.diyfamilylawaustralia.com/Topic/child_issues_parental_responsibility_what_is_equal_shared_parental_responsibility.html. [Accessed 16 June 2017].
• STATE LIBRARY NSW. 2017. Chapter 4b: Family Law Act 1975. [ONLINE] Available at: http://legalanswers.sl.nsw.gov.au/family-law-and-divorce/family-law-act-1975. [Accessed 17 June 2017].
• STATE LIBRARY NSW. 2017. Chapter 4d: Changes to family law in 2006. [ONLINE] Available at: http://legalanswers.sl.nsw.gov.au/family-law-and-divorce/changes-family-law-2006. [Accessed 18 June 2017].
• FAMILY LAW COUNCIL. 2006. COLLABORATIVE PRACTICE IN FAMILY LAW. [ONLINE] Available at: https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Collaborative%20Practice%20in%20Family%20Law.pdf. [Accessed 18 June 2017].
• Kaspiew. 2012. Family law update. [ONLINE] Available at: https://aifs.gov.au/publications/family-matters/issue-91/family-law-update. [Accessed 18 June 2017].
• Parkinson. 2013. Violence, abuse and the limits of shared parental responsibility. [ONLINE] Available at: https://aifs.gov.au/publications/family-matters/issue-92/violence-abuse-and-limits-shared-parental-responsibility. [Accessed 18 June 2017].
• Counsel. 2010. What is this thing called collaborative law?. [ONLINE] Available at: https://aifs.gov.au/publications/family-matters/issue-85/what-thing-called-collaborative-law. [Accessed 18 June 2017].
• Carson. 2014. Property and financial matters upon the breakdown of de facto relationships. [ONLINE] Available at: https://aifs.gov.au/cfca/sites/default/files/publication-documents/cfca-paper24.pdf. [Accessed 18 June 2017].
• Kaspiew. 2009. Evaluation of the 2006 family law reforms. [ONLINE] Available at: https://aifs.gov.au/publications/evaluation-2006-family-law-reforms. [Accessed 19 June 2017].
• STATE LIBRARY NSW. 2017. EBONY – R V BW & SW (NO 3) – STARVATION OF CHILD. [ONLINE] Available at: http://guides.sl.nsw.gov.au/content.php?pid=242811&sid=2189502. [Accessed 19 June 2017].
• FAMILY & COMMUNITY SERVICES. 2016. Family and Community Services’ 2016-17 Budget. [ONLINE] Available at: https://www.facs.nsw.gov.au/about_us/2016-17-budget. [Accessed 19 June 2017].
• McGhee. 2015. Darcey Freeman inquest. [ONLINE] Available at: http://www.abc.net.au/news/2015-07-15/doctors-knew-freeman-was-violent-before-bridge-murder/6620082. [Accessed 19 June 2017].
• Kaspiew. 2012. Family law update. [ONLINE] Available at: https://aifs.gov.au/publications/family-matters/issue-91/family-law-update. [Accessed 17 June 2017].
• STATE LIBRARY NSW. 2016. Chapter 7c: Changes to family violence law. [ONLINE] Available at: http://legalanswers.sl.nsw.gov.au/hot-topics-82-families/changes-family-violence-law. [Accessed 17 June 2017].
• Hauber-Davidson. 2017. Relationships Australia supports World Elder Abuse Awareness Day. [ONLINE] Available at: https://www.relationships.org.au/media/media-releases/world-elder-abuse-awareness-day. [Accessed 17 June 2017].
• Kaspiew. 2014. Post-separation parenting, property and relationship dynamics after five years. [ONLINE] Available at: https://www.ag.gov.au/Publications/Documents/Post-SeparationParentingPropertyAndRelationshipDynamicsAfterFiveYears/post-separation-parenting-property-and-relationship-dynamics-after-five-years-chapters-0-2.pdf. [Accessed 17 June 2017].
• Australian Bureau of Statistics. 2009. Australian Social Trends. [ONLINE] Available at: http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4102.0Main+Features20March%202009. [Accessed 15 June 2017].