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The family law landscape has been altered dramatically following legislative reforms. The multifaceted nature of law reform has meant that it has been moderately effective in enforcing legal responsibilities in relation to family members and family relationships. The rights of a child are paramount and as such, they require the greatest legal protection. Legal responsibility is held by parents and guardians to ensure that children are protected whilst the law is accountable for the protection of victims of domestic violence. Areas in which law reform has taken place are the legal rights and obligations of parents and children, adoption, and domestic violence, as seen by The Family Law Reform Act 1995 and Family Law Amendment Act 2006 The Adoption Amendment, Act 2010, and The Crimes Amendment Act. Whilst they cover many of the notions of justice; fairness, equality, accessibility, timeliness, enforceability, and resource efficiency, there is still room to ensure the effective enforcement of legal responsibilities regarding family members and family relationships.
The FLA introduced several revolutionary changes, such as “no-fault” divorce and the establishment of the Family Court of Australia. The Family Law Reform Act 1995 placed greater emphasis on responsibilities being shared equally by both parents. The phrases ‘parental rights, ‘the welfare’ of the child, and ‘custody’ were replaced with ‘parental responsibility’, ‘best interests’ of the child, and ‘residence’, respectively. Best interests include protection from harm, abuse, neglect, or violence, and meaningful involvement in their lives by both parents. This implies that the child will be directly consulted, their opinions listened to and acted upon. Per the article, titled ‘In the Family Court, children say they want the process explained and their views heard. It’s time we listened’, the balancing of protecting children’s rights while allowing them to participate is ‘delicate’. This reform, therefore, highlights the independence of children, for whom parents have responsibility and care over. It also establishes parenting plans which are written agreements that deal with any aspect of a child’s care and welfare. Changeable at any time, it is a cost-effective option for parents to record their agreements when circumstances change and ensure that children are able to adequately express their views of their relationship with both parents. If parents cannot come to an agreement, they are issued a parenting order, a court-imposed decision. A range of accessible services is also available to help parents reach an agreement about their children, such as counseling and dispute resolution, through organizations like Family Relationship Centres. Further reforms such as the Family Law Amendment Act 2006, reiterated the ‘best interests’ of the child and included the right to have a ‘meaningful relationship with BOTH parents’. The presumption does not apply in instances where there are grounds to believe that the child has been subject to abuse or family violence. The protection of a child outweighs the maintenance of a meaningful relationship with an abusive parent. These reforms have been effective to an extent towards enforcing legal responsibilities in both just and accessible outcomes.
Such reforms have also procured conflicting results, with concerns towards its timeliness and accessibility in enforcing legal responsibilities. The determination of parenting arrangements has been criticized for being too complex, thereby lengthening the time taken to resolve family law disputes. The cost of legal representation and limited access to legal aid have also contributed to a larger number of self-represented litigants who can have difficulties navigating the FLA. Due to the non legally binding nature of parenting plans, they are not enforceable and are subject to change at any time. The rebuttable presumption that children will spend equal time with each parent can be detrimental to all family members, in terms of emotional, psychological, and physical well-being. This is reflected by the article titled ‘Equal parental responsibility is failing children, inquiry hears’. The Australian Law Reform Commission (ALRC) found that the widespread nature of misunderstanding that both parents should be allowed the same amount of time to see their child, “is harming children by leading to them being placed in contact with parents where such contact is unsafe”. This shows the ineffectiveness of Australia’s family law system as child protection issues are not adequately and appropriately being dealt with, which reflects a lack of effectiveness in its ability to enforce legal responsibilities.
Another area of law reform is adoption, the process of transferring parental rights and responsibilities from the biological parents to the adoptive parents. In New South Wales, adoption is governed by the Adoption Act 2000, which has shifted the focus of adoption towards the benefits of adoption for the child rather than the needs of the adopting parent(s). It also ensures adopted children have exactly the same status and legal rights as nuptial children. It discloses the criteria needed to be met by adoptive parents and the legal responsibility for the care and protection of their child, where rights of inheritance transfer, identity, culture, and religion should be preserved. Reforms made later were again consistent to society’s changing social values. Under the Adoption Amendment Act, 2010 adoptions for same-sex and de facto couples were legalized. The case of William and Jane is an example of the first same-sex couple in NSW to adopt. This granted same-sex couples the same entitlements and responsibilities as heterosexual couples, effectively ensuring fairness. Regardless of sexual orientation, determining a suitable family environment for a child should be according to a person’s/couples individual merits as a parent. The article titled “Foster child adoption rates at record highs in NSW due to streamlined laws” demonstrates the effectiveness of law reform in enhancing resource efficiency. The adoption rate in NSW increased 90% from 2016 due to the Adoptions TaskForce which cleared the backlog of cases after 24 million dollars of funding was designated.
Despite this, law reforms made in regards to adoption have been limited in its effectiveness in enforcing legal responsibilities. Per the article titled, Same-sex adoption bill passes NSW Parliament, the reform which enabled adoptions for same-sex couples was recommended by the ALRC in 1997, despite it only having been reformed recently. This highlights the untimely manner and diminished responsiveness of the legal system in regard to adoption and contributes to the ineffective manner in which law reform was unable to guarantee equal legal responsibilities between same-sex and heterosexual couples. Furthermore, law reform fails to address the difficulties associated with adoption, a process which is tedious and expensive, requiring 11 individual steps. It takes six to nine months after the child’s placement to finalize this adoption. As a result of this, Australia has one of the lowest rates of adoption among OECD countries.
Law reform has furthermore, been moderately effective in enforcing legal responsibilities in response to domestic violence which refers to ‘acts of violence that occur between people who have, or have had, an intimate relationship’. The Crimes Act 2007 recognizes that domestic violence is predominantly perpetrated by men against women and children. It may include physical violence, sexual assault, economic abuse, emotional or psychological abuse, stalking, damage to property, and behavior that causes a child to be exposed to the effects of domestic violence. The Crimes Amendment Act introduced Apprehended Domestic Violence Orders that women could take out to ensure their safety and to reduce the incidence of domestic violence. A highly accessible, quick, inexpensive form of protection, over 22,000 are taken out annually. The Government has implemented various legal responses to support victims of domestic violence such as the NSW Domestic and Family Violence Prevention and Early Intervention Strategy 2017-2021 which provides Government agencies, NGOs, and communities guidance on prevention and early intervention strategies in the future to ensure the levels of violence against men, women, and children are reduced. This mechanism of law reform exemplifies the effectiveness and responsiveness of the legal system in prioritizing social crime prevention and ensuring the law achieves justice for victims. Reforms thus reflect changing attitudes to domestic violence and ensure the enforceability of legal responsibilities.
There are still, however, limitations to existing reforms. ADVOs do little to deter persistent offenders, as seen by the case of R v. Gavin John De Beyer who brutally stabbed his fiancé despite having numerous AVOs taken out against him since 1999. Protection orders can only be effective if they are policed, which highlights a lack of enforceability. This is reiterated by the article titled ‘Domestic violence orders need stronger enforcement’. A study revealed that “a number of women complained that police did not act on breaches, did not treat the breach as serious, and were only interested in breaches that involved physical violence”. This reflects the need for more strict police powers to apprehend and punish perpetrators of domestic violence and women, as well as for the enforcement of domestic violence laws.
Conclusively, law reform has been moderately effective in enforcing legal responsibilities in relation to family members and family relationships, as seen by legal responsibilities and obligations of parents and children, adoption, and domestic violence. Whilst it has been effective there still remain limitations in the family law landscape.
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