40 Years of the Family Court in Australia – Part 3, Parenting

In part 3 of TGB’s blog series on 40 years of the Family Court in Australia, Diana Dichiera and Meg Allison take a closer look at the changes to children’s matters since the inception of the Family Law Act 1975. (‘the Act’)

Children Issues

Prior to the inception of the Act, the care arrangements (‘custody’) of children following the breakdown of a marriage was dealt with pursuant to the Matrimonial Cause Act 1961.

Orders for the care arrangements of children were ancillary to divorce proceedings and the requirement for there to be one of the grounds of divorce established. Therefore, orders for the care arrangements of children could only be made if divorce proceedings were occurring concurrently or had already been completed.

If divorce proceedings had not been instituted, children’s issues were dealt with by the State Courts applying State laws.

When the Family Court was established, the Court did not have the power to make parenting orders for children born out of wedlock whose parents had never married.  The Court was only able to make parenting orders in relation to children whose parents had been married.  The State courts dealt with parenting orders in relation to children whose parents were not married.

With the passage of the Family Law Act, the Matrimonial Causes Act was repealed. In addition to the appointment of Judges, Counsellors and Registrars were appointed to assist in resolving parenting disputes by way of conciliation where possible.

However, by 1995 the States and Territories referred their powers, and the Family Court was able to make parenting orders in relation to children with both married and unmarried parents.

Furthermore and most crucially, in 1995, the Act was amended to state that when making orders in relation to a child, the Court’s paramount consideration is the best interests of the child.  This resulted in a shift in focus from parental ‘rights’ to parental responsibility.  The terms ‘custody’ and ‘access’ were changed to ‘residence’ and ‘contact’ to reflect this change.  The amendment also began to address family violence in children’s matters.

In 2003 the Magellan case management model was introduced in the Family Court to better deal with parenting matters involving serious allegations of child abuse or child sexual abuse.  The model allows for these cases to be prioritised and closely managed by a Judge.  It also allows for the involvement and sharing of information between the Family Court, police and child protection agencies.

In 2006 the concept of equal shared parental responsibility was introduced to the Act, which focused on the idea of shared parenting and cooperation between parents after separation.  The terminology for parenting orders was again changed, from ‘residence’ and ‘contact’ to ‘lives with’ and ‘spends time with’.

The 2006 changes also introduced a less adversarial process for children’s matters, which includes more dialogue with the judge, the involvement of family consultants to interview children and parents, a greater role for Independent Children’s Lawyers and a larger focus on alternative dispute resolution.  In fact, since 2007 parties must take part in compulsory family dispute resolution before filing proceedings in relation to parenting matters, except for cases involving urgency or family violence.

Finally, in 2012 the Act was changed to better ensure children’s safety.  The definition of family violence was broadened to include coercive, controlling and fear inducing behaviour as well as physical violence.  The Act was also amended to recognise that exposing a child to family violence may constitute child abuse.

This 3 part blog series coincides with the 40 year anniversary of the introduction of the Family Court of Australia and outlines the key changes that have occurred in the areas of divorce and separation, property settlements and parenting disputes.

Tindall Gask Bentley is a leading Australian family law firm. For further information or assistance with your family law matter contact us.

Read on:

Part 1 – Divorce

Part 2 – Property Settlement

By Diana Dichiera with Meg Allison.