Families are an essential structure within society. In Australia, changing social values have resulted in a diversity of family units; from married or de-facto couples, nuclear families, blended families, single-parents families and same-sex unions. When a family experiences a breakdown or separation this can cause emotional trauma and financial hardship. Thus it is highly necessary that family units are protected as outlined in the International Covenant on Civil and Political Rights (ICCPR). As a signatory, Australia somewhat upholds its obligations to protect the family unit when a relationship breakdown occurs. Recent reforms as a consequence of changing social values have ensured that couples, both married and de facto, have the same legal rights and opportunities within the legal system. Furthermore, as a result of the 2006 Family Law Act amendments the “best interests of the child” are prioritised over the best interests of the parents. However victims of domestic violence are not provided the protection they require under the law; incidents of domestic violence are still the most frequent violence related assaults in NSW, and preventative measures are not enforced to remove family members from a potentially harmful situation.
The Family Law Act (1975) is effective in achieving justice for couples undergoing a relationship breakdown. Under the legislation divorce, the legal disillusionment of marriage, is not difficult to obtain and is accessible to all married couples. By extension, the introduction of the “no fault” concept in the Family Law Act removes blame from the process of divorce, meaning that one party cannot be held responsible for the marriage breakdown. However the court does consider domestic violence when making decisions regarding property or other financial assets. The legislation also ensures divorce is in the best interests of the parties by requiring proof of the couple living “separately and apart” and proof of intention to end the marriage. Mediation and conciliation services are an integral part of the divorce process and are important in achieving justice for both parties involved in the breakdown. There are a variety of organisations such as The Family Dispute Resolution Service who provide mediation services to separating couples, and an attempt at mediation is encouraged by the law and the courts. Benefits of mediation or conciliation include; a reduction of the costs and trauma surrounding divorce, allows the parties to exercise control over the outcome, enables creative solution and places an emphasis on the parties moving forward. Another important reform that ensures justice for couples was the 2009 reform to the Family Law Act which recognised de-facto couples, heterosexual and homosexual, and granted them access to the federal family law system. This means that as of 2009 the Federal Circuit Court could hear matters regarding the property and finance of a de-facto couple upon their separation. Furthermore as of the 8th of December 2017, same-sex marriage was legalised in Australia which further enables homosexual couples to gain full access to family law whilst in a relationship or during a separation. As a consequence of the various pieces of legislation discussed above, the family law system is effective in achieving justice for couples experiencing a relationship breakdown as it is easily accessible and now is more universally applicable to differing types of couples within contemporary society.
The other major stakeholders in a relationship breakdown are the children conceived in the relationship, and it is essential that children’s needs and interests are catered for as a family breakdown can evoke mental trauma. The Family Law Act 1975 (Clth) heavily emphasises the rights or the “best interests” of the child over that of the parents. One of these interests is that children should have access to meaningful relationships with both parents, except in cases of domestic violence. Amendments to the Family Law Act made in 2006 mean that parents generally have ‘equal’ shared parental responsibility. This essentially means both parents must be involved in major decisions surrounding the child/ren’s life and both parents have equal responsibility to maintain the wellbeing and interests of their child/ren. Encouragingly, since the implementation of these reforms, 16% of children are spending equal time with both parents, and there has been a 22% decline in the number of cases being heard in court which demonstrates the effectiveness of mediation and conciliation services (Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, 2010). However, there has been some confusion regarding the concept of “shared parental responsibility” with many equating it to shared parental care. In order to make this legislation more effective, a clearer distinction between care and responsibility is necessary to ensure the best interests of the child are achieved.
Currently the court system in regards to family law consists of the Federal Circuit Court and the Family Court of Australia. The Federal Circuit Court hears all divorce applications and mediation process are mandatory when children are involved, thus encouraging amicability and thorough representation of all parties interests. The current system somewhat effectively and efficiently achieves justice for all parties. However recent proposed changes from the government would completely undermine whatever efficiency exists. The proposal is to merge to Family Court of Australia and the Federal Circuit court due to a claims lack of resources. An article by The Guardian (“Vulnerable families deserve better than a government courting One Nation”, The Guardian Van Badham, 06/06/18) discusses the need for a seperate court such as the Family Court of Australia to hear more complex matters such as that of abuse and the need for experienced judges to make these decisions, experience and skills that would be sacrificed with the merger;“Making the wrong decision can be devastating; children may be ordered into the care of an abusive parent, or prohibited from seeing a safe and loving one … (Decisions) require great skill and understanding to get right”. In essence, the current legislation regarding family law is mostly effective, however proposed overhaul of the court system could be detrimental to the continuation of justice for family units experiencing a relationship breakdown.
Despite the effectiveness of the law in providing justice for families in some circumstances as discussed above, the law is very ineffective when it comes to addressing the prominent issue of domestic violence in Australian society. Recent statistics from the White Ribbon Organisation and the Australian Bureau of Statistics state that one in four children are exposed to domestic violence, and over a twelve month period, one woman is killed a week by a current or former partner, on average. These are alarming indications of the extent of the domestic violence issue in Australia and also show the lack of initiative of Australian governments in providing adequate legislation to protect families. There has been little to no allocation of government funding or efforts towards domestic violence, despite the overwhelming evidence suggesting families need it. This is exemplified in an article written by a family counsellor; she states “politicians and minor celebrities get to pin a scrap of white fabric to their lapels and feel like they're doing something to eradicate violence against women” (“White Ribbon Day glosses over the raw and bloody horror of domestic violence” Sydney Morning Herald, Jill Murphy 21/11/17). Currently there are three main responses to domestic violence in Australia’s legal system; Apprehended Domestic Violence Orders (ADVOs), criminal charges or Family Court Orders. ADVO’s, despite being relatively easy to obtain and theoretically prevent future harm of the victim, in many cases fail to provide adequate protection as a piece of paper cannot definitively prevent violence. Criminal charges can result in imprisonment or other sanctions that may better protect the victim, however the standard of proof is significantly higher in the criminal court, and many victims are reluctant to pursue criminal proceedings against former or current loved ones. There is also a significant social stigma when pursuing domestic violence and although there has been increased community awareness as a result of work by organisations such as White Ribbon, many victims fear coming forward in a courtroom. One only has to look at the case of Lena Kasparian; who somewhat accidentally stabbed her husband in self defence after an incident of domestic violence, yet was accused of his murder and put on trial. Finally, Family Court Orders aim to restrict behaviour in a similar way to ADVOs, and parenting orders can prevent children from exposure to a violent parent. However a provision of these orders is costs can be awarded against a parent who raises untrue or malicious allegations against another party, which heavily discourages women to come forward regarding family violence because there is often little proof and they fear being looked upon unfavourably by the court. Thus it is very clear that there needs to be significant reform to family law in order to protect families in Australia from domestic violence.
In conclusion it is evident that Australia only somewhat meets its obligations to enforce the rights codified in the ICCPR; specifically that the family unit, as a fundamental element of society, should be protected by the government. When a family experiences a relationship breakdown, they are extremely vulnerable and thus the government should provide increased protection and assistance to all parties involved; from all couples, parents and children, and victims of domestic violence. However a combination of proposed merging of the court system, and the systematic failure to address domestic violence severely hinders Australian laws ability to protect and achieve justice for families.