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Published: 01 August 2016
Author: Ryan Carlisle Thomas with research assistance from Jessica Saidel

How adaptive has the Family Law Act been?

The challenge of child rights, marriage equality & surrogacy

This year we celebrate the 40th anniversary of the Family Law Act. Has it kept pace with changing attitudes? How will it respond to the challenges of marriage equality and surrogacy?

It’s useful to consider how the Act has responded to challenges in the past. In fact, it has been the single most important document for family law in recent times, having proven itself adaptive to society’s changing social values over four decades. It is the Act's versatility which makes it so relevant still.

Fault-based approach and abusive relationships

The original divorce regime was simply not appropriate for modern times. It centered on a fault based philosophy which was riddled with stringent requirements. This did not allow people the freedom to comfortably leave abusive marriages. An original ground of fault which was required to be satisfied before a divorce could be granted included adultery. Furthermore, a couple had to prove they were separated for over five years.

The above requirements were not keeping pace with society’s changing attitudes to marriage and as a result, fault is no longer a part of the family law process.

The Act is constantly under scrutiny and has been subject to numerous changes over the years, including to how family violence is dealt with and how parental and child rights are considered. These reforms were assisted by a cultural shift which has given people the freedom to leave unhealthy and abusive relationships as well as elevating the interests of children so that they take precedence. Although family members are now treated equally in the eyes of the law, the most vulnerable participants, the children, are of paramount concern.

Parental rights and children’s best interests

From its inception, the Act has changed the way children are dealt with. In 1983 the Act attempted to define the time with children in terms custody and guardianship. Procedures were additionally simplified in order to diminish the win and loss nature of court.

When Australia became a party to the United Nations Convention on the Rights of the Child the focus of the Act shifted. An amendment introduced in 1995 moves away from the language of parents and their rights to the parents responsibility and what duties they have towards the care of their children.

In the late 1990s the family law system as a whole moved away from the traditional adversarial nature of the courts and towards mediation. This was accompanied with a change of language. Parents were no longer referred to as the ‘resident’ parent and the ‘contact’ parent. Further, ‘shared parental responsibility’ was introduced in order to allow for the raising of children to occur with both parents meaningfully. This assisted in building the reputation of the court as a court that treats parents equally.

As the diversity of families were becoming ever prominent, the Act introduced amendments which allowed for ex-nuptial children to be included under Chapter VII of the Act.

The Family Law Act and family violence

Further, more recently, and certainly in the wake of the report recently released by the Royal Commission into Family Violence, domestic violence has been the issue which has brought the Family Law Act into prominence once more.

The report has prompted amendments to the Act which include a widening of the definition of family violence in order to encompass a wider range of behaviours, and the elevation of child safety as the highest priority.

The definition of family violence now includes serious psychological harm and serious neglect.

It is now apparent that the aim of the law is to ensure the safety of the child, over other family law matters present in the proceedings. However a child’s right to have a meaningful relationship with both of their parents, where it is safe, is promoted. This shift towards safeguarding the interests of the child and referring to ‘child’s rights’ rather than ‘parents rights’ reflects the Act’s protective nature and child focused outlook. It is now common practice for parental rights to be restricted if children are at risk of harm, whereas originally such a concept was considered impractical.

The shift to a child focused system demonstrates the Act’s ability to adapt to society’s views and expectations. The Act is in a constant state of influx and it will continue to grow and develop just as our society does and will be a permanent cornerstone in the family law sector.

Future challenges for the Act - marriage equality

The Act is continuously undergoing change as the idea of what a family is continues to transform. The Act responded to society’s outcry and took a positive step forward when it legislated for de facto homosexual couples and heterosexual de facto and married couples to be treated equally in the eyes of the family law. This was a step in the right direction; however gay marriage is still not permitted.

The public will continue to voice its frustrations and disapproval with the Act until marriage equality exists. The Act has been so progressive in relation to de facto laws, it is now the time for marriage equality to be given the attention and recognition it deserves.

The challenge of surrogacy

Another challenge for the Act is the fast growing technological and social advances surrounding surrogacy. The Act is lagging well behind in regards to protecting the intended parents of surrogate parents and the children. It is for this reason that the state domestic surrogacy laws are rarely used and instead, couples are seeking out international jurisdictions and then applying to the court through the Family Law Act. The Act however is currently not built to deal with these circumstances appropriately which has caused inconsistent case law and more importantly, has caused hardship to families involved. The Act aims to keep pace with modern society however; it is yet to embrace and accept, the ever growing prevalence of surrogacy.

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