CHILDREN AFFECTED BY DIVORCE &
PROTECTING THEIR BEST INTERESTS
On 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
b) 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...