Family Law Amendment (Shared Parental Responsibility) Act U v U [2002] HCA

Over the years, the moral fibre of the society has continued to crumble. One of the most affected social units in the society is the family. Spouses exchange vows only to go back on their promise that 'till death do us part.' Children are often at the receiving end of such scenarios since family disintegration often has a negative impact on the children who get caught up in the tug of war of their parents' dissimilarities. The Australian federal government is aware of the blow that family breakdown brings to thousands of Australian children every year. To protect the plight of the children, the government has introduced a series of Family Law reforms funded by the mainstream government with the aim of assisting families that are experiencing relationship problems. The rationale is to protect children from the potential damage that would emanate from parents' reckless disregard of their shared responsibility. The Family Law Amendment (Shared Parental Responsibility) Act thus aims at apportioning shared parental responsibility between both parents. The enactment of this landmark piece of legislation has brought about substantial changes to the law through the implementation of policies related to sharing parental responsibility. This paper discusses the substantial changes to the law as they relate to U. v U [2002] - the case study in question, and the possible outcome in view of changes to the law and procedure and their impact on court decisions.

Background

Parental responsibility presents one of the most challenging legal issues in Australia and the world at large. The law, in this respect, has registered significant changes over the years. First significant milestone in the evolution of Australian legal system with regard to parental responsibility was the enactment of the Family Law Reform Act 1995 (Cth), which introduced significant amendment to Part VII of the Family Law Act 1975 (Cth) (Kennedy et al., 2009).

Another significant change made by the Australian Federal Government with regard to parental responsibility as part of the family law system was the Family Law Amendment (Shared Parental Responsibility) Act, which came into effect on 1 July 2006. The rationale behind making the series of amendments was to initiate more focus on the rights of the child as the most sensitive parties in a family setting. The federal government felt that children deserve to have meaningful relationships with both the mother and the father. Likewise, the government felt the need for shared parental responsibility. The amendments provided a sound legal framework to ensure that children have a right to know both of their parents. Under the auspices of the Family Law Amendment (Shared Parental Responsibility) Act, children get to grow up with their parents and to share the love, support, and protection (Monahan & Young, 2008).

In addition, the Australian federal government has introduced a wide range of services designed to help families deal jointly with their relationship problems. It has also established Family Relationship Centres across Australia. These centres offer advice and grant assistance to families with the interest of the child taking centre stage. Advice revolves around shared responsibility for the benefit of the child. The Family Relationship Centres have become major components representing Government's bid to support better family relationships. The centres provide families with advice and information on issues related to relationship between family members in both scenarios: married and separated. By establishing these centres, the government allows families find out about government-funded services, which they can use to foster spousal relationships thus building better relationships at home for the sake of their happiness and that of the children. Also offered in these Family Relationship Centres are mediation services. They recommend the appropriate services such as counselling for spouses.

Substantial Changes in Australian Family Law

Since the enactment of this piece of legislation, Australian family law changed drastically. With the enforcement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), there have been tremendous changes in the manner in which parents handle their affairs towards their children in the event of separation or divorce. As noted before, the fundamental aim of the Shared Parental Responsibility is to safeguard the welfare of children by apportioning equal parental responsibility between both parents. The subsequent amendments are integral parts of the new body of reforms in family law. This marks the most significant change in Australian family law in over three decades (Monahan & Young,...

Meanwhile, the Australian Institute of Family Studies (AIFS) is presently undertaking an appraisal of this family law 'reform package' on behalf of the federal government.
With the enforcement of the Act, both parents have an obligation to play an equal role (shared parental responsibility) as it appertains to the welfare of the children (Leigh & Wu, ND). While shaping the long-term issues such as health care and education, the law obliges the parents to safeguard the welfare of their children irrespective of whether they are living together. In the event of a divorce, both parents must agree upon the fate of their offspring. After deciding where the children will reside (and with whom), the other parent is eligible for visitation rights. This is the essence of shared parental responsibility.

Upon its enforcement, the Shared Parental Responsibility Act required separated spouses to attend family dispute resolution in the Family Relationship Centres. Upon completion of the family dispute resolution, the parents receive certificates from a registered 'family dispute resolution' provider to verify that they have agreed to compromise and that they clearly understand the terms of engagement -- in case of technicality in legal terms, spouses can have their attorneys present to help in the legal interpretation. The certificate comes hand in hand with a parenting order (Leigh & Wu, ND).

Another significant change brought by the Shared responsibility act is that the law has now extended the mandate of Australian courts of law by conferring on them greater powers to supervise the manner in which parents conduct themselves with regard to safeguarding their children welfare as per the requirements of the Act. The government has also set up new intervention services to facilitate the improvement of parenting and relationship skills (Monahan & Young, 2008).

Case Study: U. v U [2002] HCA 36; S256/2001

Relevant legislative provisions

According to section 65 C (a) of the Family Law Act 1975 (Cth), one parent or both are eligible to apply for a parenting order and as such, either or both may feel free to do so. As per section 64 B (2), the parental order may deal with various issues such as determining where a child is to live, and with whom. It also deals with visitation rights of either parent, the maintenance of a child, as well as any other aspect of shared parental responsibility.

In addition, Section 65 D (1) of the Act states that in parental order proceedings, subject to Division 6 of Pt VII, a family court has the mandate to make parenting orders as it deems appropriate (U v U [2002] HCA 36).

Section 65 E. unequivocally states that while deciding how to make a particular parenting order, the fundamental consideration is to safeguard the welfare of the child whether (or not) the interests of a child may inconvenience the parents. Section 68 F (2) further specifies the criteria for determining the child's best interest. The court must consider the apparent effect that any changes in the child's circumstances may cause i.e. what would be the effect on the child if separated from either parent or the person they have been living with. The court must also consider the practical expense or difficulty of a child upon separation from either parent. Would such separation considerably affect the right of the child to maintain personal relations with both or either parent? Finally, the court considers the ability of each parent to cater for the needs - intellectual and emotional needs - of the child. As determining the ability of the both parents, the court is at liberty to apportion shared responsibility equitably.

Counselor's Report

As noted earlier, the law duly obliges the parents to attend family dispute resolution to determine the future of their relations as appertains to the child's welfare. The counsellor then writes a report indicating the parents' competency to cater for the children's welfare

In the case study in question, the court obtained the counseling report as per Section 65 F. Of the Family Law Amendment (Shared Parental Responsibility) Act. The mother's application for contact between the father and the daughter N, she were to live with N. In India, had changed by the time of the counseling report. Specifically, the mother subsequently proposed visitation 'five block periods per year,' which would involve the father visiting them in India twice very year and the mother taking N. To Australia three times annually. As it turned out though, the proposal had changed to four visits, two in India and two in Australia by the time of the hearing (U v U [2002] HCA 36).

In the report, the counselor noted that since -- in his reasonable estimation…