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

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