Family Law in New South Wales and across Australia is governed by the Family Law Act 1975 (Cth). Over the years this Act has been reviewed, revised and redrafted into its current format.
Now it seems it’s happening again.
Late last year, Parliament passed a motion to conduct a “root and branch” review of the family law system. Then, on 2 February 2016, the Senate called on the Government to undertake the motion initiated by Victorian Senator John Madigan.
While Senator Madigan called this “an historic moment for all us fighting for change in the Family Court”, other commentators are not so supportive. Nijole Cork from The Saturday Paper is concerned with the context of this motion. In particular, she is concern that the new reforms are based on the “men’s rights lobby on family law”. The issue seems to revolve around reforms that put domestic violence victims at risk and understate the uniqueness of family law situations.
Family law is certainly a particularly unique area of law. We all know that, like a fingerprint, no two families are alike. The Family Law Act attempts to ensure that a range of factors are considered, especially in regards to the best interests of the child, in order to addresses matters on a case by case basis.
Despite this system, some principles remain universally applicable under Family Law.
The ‘just and equitable’ requirement has been held by the Courts to underpin the law. Long gone are the days where you can use family law to bleed your former partner of every single cent possible. Both financial and non-financial contributions must be taken into account to ensure the final division of assets is just and equitable.
The paramount importance placed on ‘the best interests of the child’ is another running theme throughout family law legislation. The main complaints, which arise in this area, concern what the best interests of the child actually are. Cork maintains that the best interests of the child should always prioritise safety over contact. Alternatively, George Christensen working alongside Madigan raises concerns about shutting ‘husbands out of family life’ and the importance of shared responsibility.
The current law on the issue states that the primary considerations in establishing the best interests of the child are “the benefit to the child of having a meaningful relationship with both of the child's parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. These two considerations are balanced in favour of the need to protect the child.
We will watch with interest to see how this debate develops and whether an emphasis on one or the other factors emerges with this new spate of calls for family law reform.
If you have any concerns regarding the safety of you or your child or want to find out more about family law, family law lawyers, family law parenting, family lawyers and the court system, please contact James Frank for further advice at jfrank@franklegal.com.au or 02 9688 6023.
This article was written by Andrea Spencer and Emily Graham and edited by James Frank. This article is provided to the reader for general information. It is not legal advice.