Should the best interests of the child be considered by the court when exercising property adjustment powers under s79 of the Family Law Act 1975 (FLA)? They are in England & Wales: there, section 25(1) of the Matrimonial Causes Act 1973 (MCA) says that the court, in determining financial provision and property adjustment in connection with divorce proceedings, has
… a duty … to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
But when the Australian Law Reform Commission (ALRC) asked, at paragraph 152 of its Review of the Family Law System (Issues Paper 48, March 2018) whether
suggestions that the requirement to regard the best interests of the child as the paramount consideration should also apply to adjustment of property
the Law Council of Australia (LCA), in its response dated 7 May 2018, said at paragraph 228
The LCA considers that such suggestion fundamentally misunderstands the rights being determined in property proceedings and would inappropriately displace those rights in favour of a third party, in the event that there were children of the relationship.
This article reviews the contrasting legislative framework and case law in England & Wales and in Australia and argues (contrary to the position taken by the LCA) that the government should, in accordance with the ALRC’s suggestion, amend FLA Part VIII (Property, Spousal Maintenance and Maintenance Agreements) to require that the interests and wishes of children and young people must be taken into account in s79 property adjustment proceedings between their parents. Similar amendments should be made to Part VIIIAB (De facto Relationships) and perhaps Part VIIIA (Financial Agreements).
Back to the future
It’s July 1999. The millennium bug threatens doomsday in six months. But the boffins at the Family Law Council (FLC) have more important matters to worry about. In their Submission responding to the Attorney-General’s Department (Cth) Discussion Paper Property and Family Law: Options for Change, they contemplated in Chapter 3 what are the
Characteristics of a good law
and suggested in Principle 2 that
The law should conform with values accepted in the community
In accordance with the good law characteristic of conforming with values accepted in the community they recommended
Priority to the welfare of dependant children
3.18 – Property adjustment should take account of the best interests of dependant children. This might imply a principle that orders for property adjustment should, so far as possible, be framed to minimise the disruptive impact of parental separation on children, for example, by seeking to avoid an immediate sale of the family home.
3.19 – In England and Wales, the court is required to give ‘first consideration’ to the welfare of dependent children under legislative guidelines for the making of property orders (see Chapter 5).
In Chapter 5 of their Submission, the FLC experts expanded their comment on the English law:
Where there are children, a high priority is given to preserving the matrimonial home for the primary carer and the children, at least until the children reach 18. Various forms of order have been devised to achieve this. Australian Law Reform Commission Issues Paper 48, March 2018: Review of the Family Law System.
Early support for a change in the Australian law
Professor Dr Patrick Parkinson (having survived the millennium bug) urged the government to follow the FLC’s 1999 recommendation, first in a paper presented at the Family Law Section’s Sydney family law conference in July 2000 and then in the Summer 2000 issue of Australian Family Lawyer. Where, in an article entitled Unfinished Business: Reforming the Law of Property Division, he wrote that the court should, in matrimonial property adjustment proceedings
ensure that the housing needs of any children of the marriage are adequately met (which should be the first and paramount consideration)
When the government finally got around to amending the FLA six years later, in 2005, these recommendations by the FLC and Professor Parkinson were ignored.