HSC TASK - Legal Consequences of Separation PDF

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HSC Task 29 Legal Consequences of Separation

Legal Consequences of Separation

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Children The two paramount concerns in a separation are children and property. When a court is making a parenting order, the Family Law Act 1975 requires to regard the best interests of the child as the most important consideration. These principles are set out in the United Nations Convention on the Rights of the Child. The law recognises that family law is most important while parents care for dependent children. Historically the children of families had no power and were very much seen as the ‘property’ of the parents. Parents had rights and the legal focus was on these rather than on parental responsibilities. Over time the legal status has changed. Children, or those under 18-years-old, are now seen as having rights and parents as having responsibilities to uphold the children’s rights. The legal changes over time have led to greater protection for children. The focus of the law is not on ‘parental rights’ but on ‘parental responsibility’. Parents are responsible for the long-term care of their children and the presumption is that it is in the best interests of the children for both parents to share this responsibility equally. Therefore, irrespective of where the children reside, both parents are still responsible. Parental responsibility will only cease with a court order, the adoption of the children, the children’s 18th birthday or the children’s marriage 1. Best interest of the child - Family Law Reform Act 1995 Cth - reflects changing community/ societal values, protects the rights of children, incorporates international incentives to protect the rights of children Separation occurs when two people decide to ‘live separately and apart’. Under Part VII of the Family Law Act 1975 (Cth), any disputes concerning children must be decided in the best interests of the child. The court must determine the ‘best interests’ by reference to primary and additional considerations set out in s 60CC. The two primary considerations include the child’s right to maintain a meaningful relationship with both parents and the need to protect the child from harm including their physical, emotional, psychological well-being. This notion was implemented following the introduction of the United Nations Convention on the Rights of the Child (CROC) which stressed the responsibilities previously viewed as rights of parents towards children. Australia played an active role in the drafting of this convention and ratified it in 1990, and further implemented the Family Law Reform Act 1995 (Cth) to replace the Family Law Act 1975 (Cth). The objective of this enactment is “To ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children” other changes in s60b included ‘residence’ which replaced ‘custody’, ‘contact’ which replaced ‘access’ and ‘best

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HSC Task 29 Legal Consequences of Separation

interests’ which replaced ‘welfare’ of the child. Hence, it is evident that the law has aimed to protect the rights of children through legal enforcement of the Family Law Reform Act 1995 (Cth) and which is consistent with the principles of the (CROC). 2. Rights Of Ex-nuptial Children - Status Of Children Act 1996 NSW Law reform in regards to protecting inheritance rights of ex-nuptial children has been significantly effective and can be seen through the Marriage Act 1961 (Cth) and the Status of Children Act 1996 (NSW). Exnuptial children, who are children born out of marriage, have suffered inferior social and legal status in comparison to children born within ‘wedlock’ throughout history and have thus been subjected to restricted access to property rights regarding inheritance, as they have often been equated with ‘illegitimacy’ and referred to as ‘filius nullius’, in Latin, meaning ‘the child of nobody’. The Marriage Act 1961 (Cth) amended the common law through protecting children from ‘illegitimacy’ where their parents' marriage is void, and through ensuring that children become legitimised from birth when their biological parents marry. The Commonwealth of NSW to eliminate this issue has responded through enforcement of the Status of Children Act 1996 (NSW) to provide equal access to both children born in and out of marriage and to extend their property rights upon the death of a parent, as the proportion of children born out of marriage is 31.3%. This legislation grants ex-nuptial children rights to inherit property as well as to be treated equally with ‘legitimate’ children under the law. Thus, enactment of the and they reflect the effectiveness of the law in reforming to reflect the moral and ethical standards within society concerning succession and inheritance rights for ex-nuptial children. Status of Children State And Territory Enforcements: ● Status Of Children Act 1996 (NSW) S5,6 ● Status Of Children Act 1978 (QLD) S6 ● Status Of Children Act 1974 (VIC) S3,4 ● Status Of Children Act 1974 (TAS) S 3,4 ● Status Of Children Act 1978 (NT) S4 ● Status Of Children Act Parentage Act 2004 (WA) S31 ● Status Of Children Act Family Relationships Act 1975 (SA) S6 3. CSA - Recovering Child Support Debt The law has evolved to reflect the moral and ethical standards of society to protect the inherent rights of children. Increases in the existence of single-parent families within society over the years have compelled the law to reflect these changes and enact legislation to safeguard the rights of children involved in these relationships. The Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 outlined provisions to “suspend agreements that do not address what occurs if a child’s living arrangements changes, and if a parent previously entitled to child support now cares for the child for less than 35% off all nights”. Through this, child support agreements are more flexible in order to adapt to changing family and financial situations, making such agreements more equitable for both parents as well as accounting for the best interests of the child by ensuring they are placed in an environment that they are comfortable with and that can provide for their needs.

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HSC Task 29 Legal Consequences of Separation

The law has sought to balance the rights of children through child support which enables the child with financial subsidies. The Department of Human Services is empowered through the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 to recover overdue child support through income support payment deductions, enforcing tax return lodgement or intercepting tax refunds, working with third parties, employer or bank account deductions, issuing travel bans and litigation and prosecution. The ineffectiveness of this legislation in ensuring children receive their child support payments can be seen through government figures which indicated that overdue child support payments reached $1.59 billion in 2018. Increasing by a total of 30% since 2007. Travel bans or departure prohibition orders specifically have been identified as an ineffective source to compel people to make these payments as in 2017 it was discovered that it only recovered 0.63% of outstanding debts. Hence, it is clear that the legal systems incentive to protect children’s rights to child support through preventing overdue child support payments through departure prohibition order has been ineffective and can be seen through government figures https://www.abc.net.au/news/2018-06-26/unpaid-overdue-child-support-now-continues-to-climb/99065 Current Divorce Rates In Australia: ➔ The divorce rate (divorce per 1,000 Australian residents) rose in the 19602 and 1970s and peaked at 4.6 per 1,000 resident population after enforcement of the Family Law Act 1975 (Cth) which also prevented no-fault divorce ➔ The divorce rate decreased in the 2000s - in 2016 it was 1.9 which was the lowest rate since 1976. It then rose again in 2017, sitting at 2.0 ➔ Most individuals who divorce are those aged 25-29 years ➔ The largest proportion of couples separating and then divorcing are those that have been married 9 years or less. In 2017, 56% of separations and 43% of divorces were from couples in this category _________________________________________________________________________________

Property The Family Law Act 1975 (Cth) uses a broad definition of ‘property’. Property refers to the financial aspects of a relationship including homes, bank accounts, companies and partnerships, shares, superannuation and household goods. A significant factor which can be considered when dividing property includes the use of prenuptial agreements or cohabitation agreements which can alleviate the time and stress in distributing property for couples. Indirect financial contributions are contributions or actions made by one party which allows the other to gain financial benefits. Non-financial benefits are contributions which increase the value of the family assets such as repainting or renovating the home. 4. Property - Financial and Non-Financial contributions Family Law Act 1975 Cth. Subsequently, another legal consequence of separation is property. Property refers to the financial aspect of a relationship including homes, bank accounts, companies and partnerships, shares, superannuation and

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HSC Task 29 Legal Consequences of Separation

household goods. If the distribution of property is not completed during the time of divorce, the couple has twelve months to complete it prior to the court making property or financial orders. To determine these figures, the court must establish the assets, debts, and net assets of both individuals. The Family Law Act 1975 (Cth) dictates the principles of the court in making financial decisions after disputes and breakdown of marriage in s79. This includes the consideration of financial, non-financial and indirect contributions made by each party which may have been made upon the formation of the relationship, after the marriage and children and the future requirements which both individuals will be in need of. Such considerations in the distribution of property are essential in fairly and justly dividing property to both parties seeking dissolution. In the case of Marriage of Marando, the wife received a 5 percent adjustment on the grounds that her husband’s abuse, his denigration of her children, and his attitude of women’s work which “necessitated her to work especially harder than would be usual in normal situations as a homemaker, parent, and the prime navigator of the welfare of the family through the many seas of problems and difficulties which confronted them over the years.” the judge noted that “There is no significant guidance as to the misconduct that must be endured to make the homemaker and parent role more onerous, other than conduct that tajes the homemaker’s role “well beyond the norm”. Additionally, the case of Marriage of Whitely 1992, highlighted the extent to which the law recognises the non-financial contributions made by parties and effectively delivers justice to individuals. The court recognised that Wendy Whitely made significant artistic inspiration, intellectual support and criticism to her husband’s successful artwork and thus she was compensated for her contributions during the divorce. Furthermore, it can be seen that the law aims to recognise the financial, non-financial and indirect contributions made by individuals in marriages and can achieve justice for parties through enforcement of the Family Law Act 1975 (Cth), evidenced through the case of Marriage of Marando, and Marriage of Whitely 1992. https://emfl.com.au/wp-content/uploads/2016/11/Contributions-to-Property-during-Marriage.f.pdf https://www.liv.asn.au/LIV-Home/Practice-Resources/Law-Institute-Journal/Archived-Issues/LIJ-June-20 14/Some-husbands-are-more-equal--than-wives 5. Primary and secondary considerations - safety is paramount - failure of the Family Court children still placed in danger. Family Law Act 1975 Cth Section 60Ca Consequences of separation see children unprotected and thus requires the law to enact legislation to secure the rights of children in domestic disputes. The Family Law Act 1975 (Cth) indicates these considerations in s60CC. The primary consideration is the need for children to be protected from harm and violence. The second primary consideration includes the need for children to have a meaningful relationship with both parents, which refers to the notion that both parents should have an ongoing relationship with their children and the both should equally share parental responsibilities over the significant matters in their child’s life including their education, health care, religious instruction and social relationships. The additional or ‘secondary’ factors provide much more details about the kinds of matters that must be assessed in the mind of the court prior to making any contact orders.

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