Essay Sample about Australian Family Law

In regards to Australian law, there are a few options that are available when a marriage has broken down. The two major options are those of a ‘separation’ or filing for a divorce. In relation to Australian law, ‘Separation’ possesses the meaning of a breakdown in regards to the relationship between spouses, which doesn’t necessarily mean a physical separation. Section 49 (b) of the Family Law Act 1975 (Cth) (henceforth referred to as the Family Law Act), states that even though spouses may be residing together or that either spouse is rendering some household services to the other, they may still be considered to have separated and that they are living apart. However, in order to get a divorce, Gloria would be required to have to meet certain legal requirements. These legal requirements which are listed in section 48 of the Family Law Act  are that firstly the marriage has broken down to a point where it is irretrievably unsalvageable.  Secondly, Gloria would need to prove that she have been separated for at least a year prior to the date when the application for a divorce is filed.  

When working out parenting arrangements for children of a marriage that has broken down, the courts look at a number of factors. These factors include what is in the best interests of the child, the law in respect to parental responsibility, the ages of the children in question, in addition to other factors. When deciding what is in the best interests of the child, the courts examines two main important considerations as well additional considerations. The two major considerations are what would be the benefits for the child to have a meaningful relationship with both parents and the need to protect the child from physical, mental and emotional trauma as a result of family violence, neglect or abuse . The courts also look at a number of secondary factors when making this decision as well, such as for example, what the child wishes dependant on relevant factors, the nature of the child’s relationship with each parent & others, such as support networks,  and what are the most probable effects of any changes in the child’s current circumstances including the effects of separation from either parent and/or any other sibling or person with whom the child had been living with . When discussing parental responsibility in relation to the Family Law Act, it is defined as all the ‘duties, powers, responsibilities and authority which, by law, parents have in relation to children.’  Furthermore, if the parents have come to an informal parenting agreement and wish to make it legally binding as a consent order or alternatively if the parents are unable to come to an agreement in regards to arrangements for the children, then either parent may apply to the Federal Court to decide upon what is best for the child and impose parenting orders.   However, before filing for a parenting order, parents are required to make a genuine attempt to resolve the dispute and comply with the necessary pre-application actions unless their circumstances qualify for an exemption.  These required pre-application actions are the applicant has either attended or attempted to participate in family dispute resolution.   The conditions that allow for an exemption of this certificate for a parenting order under the Family Act are when;

• any of the people involved applied before 1 July 2007 for a parenting order for that particular child or children.

• the application is in response to an application made by another person

• the situation is urgent, for example a child has not been returned or is missing.

• one or more of the people involved cannot go to family dispute resolution because of ‘incapacity’ (which includes a person being unwell or living with a disability) or they live too far away from a family dispute resolution service.

• there are reasonable grounds to believe that there has been (or there is a risk of) abuse of the child or family violence.

• a court order made in the previous 12 months has been broken and the court finds that the person who broke it has shown a serious disregard for their obligations under the order. 

However, even when these exemptions occur, it is possible that under certain circumstances for the court to order for the couple involved to undergo mediation. 

Some options that are available for separated parents in order to resolve parenting disputes without the involvement of the courts are;  Mediation or ‘Family Dispute Resolutions’, Arbitration, Consent Orders, and Informal Agreements . Some of the options for family dispute resolution that are available for people outside the court system include Family Relationship Centres, counselling, and negotiation. When referring to negotiation, there are a number of different models of negotiation that could be used, each of these models possesses it’s own positives for dealing with family disputes. Some of these negotiation methods are; ‘round table conference’, ‘logrolling’, ‘distributive’, and ‘integrative’. Family Relationship Centres are part of a federal government initiative and were designed in an attempt to  ensure that ‘there to be a well-recognised and available source of assistance for parents following separation to work out their parenting arrangements . . . ’ . Family Relationship Centres also have strict requirements in place for the people who assist in family disputes.  A family relationship centre assists by providing support for couples undergoing separation as well as offering their services to assist in ‘providing joint Family Dispute Resolution mediation sessions with the other parent or family members to help you agree on parenting arrangements.’  The mediations that Family Relationship Centres are entirely confidential with personal information only being provided in the event of the client’s permission being granted or that the information is legally required or authorised by law to be disclosed.

It is unlikely that Gloria will be able to move to Melbourne with the children soon. This is because if Gloria were to move to Melbourne, as Jed would be unable to view the children as often as he could if they remained in the same state, subject to any parenting orders, He would be likely to object to Gloria moving with the children. Hence, Gloria would most likely require the Court’s assistance in order to gain permission to move to Melbourne legally. This is because if Gloria were to move to Melbourne without either Jed’s acceptance of the more or permission from the Court, Jed would be able to apply to the courts for Gloria’s return to the state. The Court’s decision in this regard would be based on a number of considerations about how this move would impact the children. Most of these considerations are the ones that the Court’s utilise when deciding what would be in the best interests of the child; however, there are a few additional considerations that are examined, such as ; 

• Where are you moving to?

• Can you afford the relocation costs?

• Will you be using before and after school care?

• What support do you have in the new area?

• What is the history of your new relationship?

• What is the relationship between you children and their parent?

Furthermore, it would be unlikely for the Court to make an order that permits relocation as this would have tremendous implications on the child. These implications would range from  having to become familiar with a new school and home, as well as becoming more familiar with the fact that they are now separated from the distant family member . Additionally, during the case of Andris & Dellis  Judge Foster stated a number of parent-focused factors to consider in relation to the child’s state after relocation, which included ;

a. whether the relocating parent was somewhat “idealistic” in their outlook about what would be gained from the new location and may lack the resources or ability to turn the vision into a reality;

b. whether the relocating parent lacks established supports in the proposed new location;

c. whether the relocating parent has mental health or substance abuse issues;

d. whether the relocating parent has overestimated the capacity to fund any planned contact visits for the children with the other parent;

e. whether there was a history of the relocating parent being reluctant or disrupt in allowing the child to spend time with the non-relocating parent; and

f. whether there was a history of extensive or significant interpersonal conflict between the parents.