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Australia Returns to the Arena to Battle with Family Law


Spare a thought for our Australian parliamentarians as they grapple with yet another raft of amendments to the Family Law Act.

Marriage and families are foundational societal institutions that we rightly celebrate. They provide a harbour from the world, a source of solace and comfort.

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Children flourish in them when working well. Yet too often they do not and then recourse is needed to the law and justice system.

Given our justice system is administered by human beings it is inherently flawed but there is no alternative to resolving the issues between once-married or partnered couples who are unable to resolve matters as between themselves.

The area is a minefield of competing interests, aggrieved parties, and extended family interferences. Emotions run riot as do personal interests.

In this space, governments need to legislate and judges need to rule making life-changing decisions for many Australians. The legislation enacted by the Parliament is the framework within which our judges need to make their determinations.

Family law is the area of legislative endeavour where competing interests continually lobby parliamentarians to overcome perceived shortcomings and unfairness.

A primary school pupil is on his way to school along a road in Varennes, southwestern France, on Sept. 4, 2012, before the start of the new school year. (Remy Gabalda/AFP via Getty Images)
A primary school pupil is on his way to school along a road in Varennes, southwestern France, on Sept. 4, 2012, before the start of the new school year. (Remy Gabalda/AFP via Getty Images)

So it is not surprising that the Family Law Act is one of the most amended pieces of legislation and every new government attempts to make it better.

Enter the Labor Government right on cue with a set of amendments promising to lessen the heartache and misery of family breakup—a near impossible task.

Yet legislators need to try. But balancing the competing interests is where wisdom is needed by the bucket load.

Questions at Every Turn

One of the many proposals is to repeal what is described as the “commonly misunderstood presumption of equal shared parental responsibility.” This is proposed in the context of ensuring the best interests of the child are paramount.

On the face of it, one could persuasively make the argument that shared parenting as a commencement point for decision-making is in the best interests of the child.

The amendments then propose to simplify the factors in determining the best interests of the child.

Good luck with that one. Each child and family is different and the concept of one size fitting all must fail. Leaving judges to determine in each case may be fairer and genuinely in the child’s best interests.

While well meaning, the potential for resentment by requiring the Court to consider the “right of Aboriginal and Torres Strait Islander children to maintain their connection to their family, community, culture, country and culture” is glaring.

First, there is the vexed question of how such identification will be determined. What if the child is the product of a liaison between two different Aboriginal or Torres Strait Islander families, communities, cultures, countries, and languages? Which one is to prevail?

Then there is the issue of one parent’s cultural background being considered less worthy for the child if there is a non-Aboriginal parent.

Does this principle apply to children of other mixed-race couples? If not, why?

It is not difficult to see the tangled mess the law can get itself into, courtesy of superficial considerations.

In fairness though, one of the proposals which needs everyone’s support is the attempt to simplify the enforcement of parenting orders to make the consequences of non-compliance clear.

Non-compliance has been a never-ending source of aggravation for many. The excuses proffered and the manipulation of the children involved is far too common.

Pondering all of the above poses an overwhelming public policy question, “Why does the government spend so much time, effort, and resources on policy development and legislation dealing with relationship breakdown rather than promoting stronger and healthier relationships?”

Surely the effort should go into providing fences at the top of the cliff rather than a fleet of ambulances at the bottom. Such an effort would save families, children, and the taxpayers. A win for everyone … apart from family law lawyers.

Eric Abetz is a lawyer with experience in Family Law.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.

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