Child Residence Dispute To Court example essay topic

CHILDREN AFFECTED BY DIVORCE &PROTECTING THEIR BEST INTEREST SOn the 11th of June, 1996, the Family Law Reform Act 1995 came into effect amending certain sections of the Family Law Act 1975, in particular, those relating to the care of children involved in divorce situations. The object of these amendments, according to the new act, was to ensure two things. Firstly, "that the children may receive adequate and proper parenting to help them achieve their full potential", and secondly, "to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children". These recent amendments are clearly a positive step forward for family law because the law has recognised that the child is the only important factor in a divorce and that it is crucial that the rights of the child are protected.

To fairly evaluate the effectiveness of these recent amendments in protecting the interests of the child, the social implications of the act, the principles taken into account when deciding a case, the impact on stakeholders, and criticisms of the act must all be taken into consideration. In order to ensure that the child's rights are protected, the courts aim is to ensure that parental responsibility survives any changes in the nature of the child's parent's relationship. Parental responsibility relates to "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". When deciding a case involving a child in the event of a separation between the child's parents, the child's best interests are now the court's paramount consideration. The concepts access, custody, and guardianship have been replaced in the amendments by contact, residence, and joint parental responsibility.

Between 1987 and 1997, the annual number of divorces rose from 39,700 to 51,300. As a result of this increase, one fifth of all Australian children aged one to seventeen now live in single parent households. Of these children living with only one natural parent, 88% live with their mothers with the remaining 12% living with their fathers. This ratio of which parents children resided with remained constant between 1987 and 1997, indicating that the trend of the courts to favour mothers over fathers has continued despite the changes to the act.

With the number of divorces consistently rising, 54% of which involve children, amendments must constantly be made to the Family Law Act to ensure that the rights of the steadily increasing number of children involved in family break-ups are protected as society changes. The current law relating to parental agreements states:" The Parents of a child are encouraged: a) To agree about matters concerning the child rather than seeking an order from the court; and) In reaching their agreement, to regard the best interests of the child as the paramount consideration". The reason for the law now officially recognising and encouraging agreements made by parents regarding contact with the child and the residence and maintenance of the child is because it is clearly better for the child if he / she grows up in a stable and non-threatening environment where the parents are on good terms. Therefore, in situations where the parents have made an agreement regarding the future care of the child, the courts will usually rule in favour of the agreed terms. The main change resulting from the recent amendments is that the courts only concern is the child's best interests, therefore their final decision regarding which parent will receive residence is determined by where conditions are best for the child. If the parents of the child are unable to come to an agreement by themselves and fail to do so via mediation, then they may decide to take their dispute to court.

If the latter results, then in deciding what is best for the child, the court takes into consideration all or most of the following factors - the expressed wishes of the child, the child's relationship with each of the parents, the effects of changes in the child's lifestyle, the capacity of each parent, the child's maturity, sex, and background, the need to protect the child from abuse, any history of family violence involving the child, and the parents' attitude towards the child. This system of determining the child's best interests is very effective because it is very comprehensive as a result of the many factors which are taken into account, therefore leaving very little chance for the case to result in an unjust judgement. In some cases, courts may rule that it is in the child's best interests if they do not have regular contact with each parent. An example of such a case is Holswich vs. O'Farrell which took place in the full court of the Family Court of Australia on the 26th of November, 1996. The father, Joe William George Holswich, appealed against the decision made on the 17th of May, 1996, allowing him contact with the child for only one hour every three months for one year and then one hour each month after the first year. The main reason for the considerably small amount of contact with the child granted to the father was an altercation which occurred on the 29th of May, 1994, between the parents in which Mr. Holswich allegedly assaulted Mrs. O'Farrell.

This incident cast doubt on the father's right to have contact with his son because courts are reluctant to allow contact in cases where there is a history of family violence, due to concern for the child's well being. Due to the knowledge of the stated altercation and also because the child had been living with his mother since the break-up, the judges ruled that Mr. Holswich's appeal be dismissed because they did not believe that it was in the child's best interests to spend more time with his father. The stakeholders affected by the recent amendments in the case of Holswich vs. O'Farrell are the child and his mother and father. The impact on the child from the court's decision would have been minimal because the child was still an infant at the time of the case and the ruling did not result in any major changes in the child's lifestyle. The case also had a minimal impact on the mother because there was no change in the mother's situation as a result of the ruling either. The father, on the other hand, was not granted an increase in contact with his son, however, the judge stated that the only reason for the contact granted to the father was to lay a foundation for future contact, so the father can look forward to considerably more contact with his son as he gets older.

One of the criticisms relating to the Family Law Act is the time delays which result when taking a child residence dispute to court. Regardless of the recent amendments, there are still extensive time delays which could last up to several months due to a backlog of cases. The child must reside with one of his / her parents for the period of time until the case is heard, and as a result, the parent living outside of the residence of the child may be automatically disadvantaged because courts are reluctant to make decisions which result in major changes in the child's situation, such as a change of residence. The history of the child's residence is referred to as the Status Quo and is a major determining factor when courts decide residence cases.

Unfortunately there is very little which can be done with regards to such situations because there are only eight judges in the Family Court of Australia faced with the burden of hearing a constantly increasing number of cases. In the period between 1987 and 1997, the number of applications for custody filed to the Family Court rose from 11,000 to 25,000. There are two possible solutions to this problem which would be effective in the improvement of the situation. The first would be to appoint more judges to the Family Court thereby resulting in a decrease in the time delays because it would allow more cases to be heard.

The second option would be to increase funding to mediation services provided by the Family Court which would result in a decrease in the number of disputes taken to court because many of these disputes could be resolved before they got to that stage. Recent budget cuts, however, have resulted in a reduction of the provision of mediation services by the Family Court and the number of cases which can be funded has dropped from 6,000 last year to 4,000 this year. It now seems very unlikely that steps will actually be taken to remedy this problem by either of the suggested solutions due to the lack of funding and the budget cuts will most likely result in a worsening of the situation. Overall, it is difficult to judge the effectiveness of the amendments to the Family Law Act 1975 because it is impossible to measure how well a child's best interests have been served. However, if the Family Court of Australia has adequately implemented the changes then one would expect that the amendments have been effective in improving the system of determining what is in the child's best interests. Therefore the court's final ruling with regards to the contact, residence, and maintenance of the child will be the option which is best for the child.

In conclusion, when all of the factors have been taken into consideration, it appears that the recent amendments will result in a step forward for the way in which the rights of children are protected by the court's decisions. Whether or not the courts will make use of this improved system, however, is another question.