Recently, a number of changes were made to the Family Law and Child Welfare title in the Australian Digest and Firstpoint classification scheme. A total of twenty new Digest Key Numbers (DKNs) (sub-headings under each subject area or topic) were created to improve the accuracy and efficiency of the case classification system and to reflect changes made to the Family Law Act 1975 (the Act) and the development of recent case law in that area.
A number of DKN additions were made to the section regarding making orders as to with whom a child should live or spend time. For example, two DKNs added to the list of relevant considerations by the court were mental health of person (to reflect the need to protect children from neglect and abuse pursuant to s 60B(1)(b), according to the definition of abuse in ss 4 (c) and (d) of the Act) and parties’ capacity to cooperate (to reflect the considerations under s 65DAA(5)(b) and (c) of the Act).
An area of family law that has changed a lot in the last 40 years or so, and continues to evolve, is parenting applications made by same-sex couples and other couples involving artificial conception or surrogacy arrangements, pursuant to ss 60H , 60HA and 60HB of the Act. This usually arises in two main contexts – one where the court needs to decide with whom a child should live or spend time, or who has parental responsibility for the child, and the other where there is an issue as to parentage, involving the presumptions under subdivision D of the Act, ss 69P to 69U. These presumptions are also detailed in s 14 of the Status of Children Act 1996 (NSW). Our classification scheme has been changed to reflect the growing number of cases in this area, with two new DKNs specifically for artificial conception and surrogacy under the range Parentage: presumptions, proof and evidence.
Of historical interest is one DKN in particular, which reflects the evolving of social perceptions and values over time in this area. That is homosexual parent under the relevant considerations as to with whom a child should live. A quick look at the cases historically classified under this DKN, makes it clear that this used to be a negative consideration by the court that would tend to favour not granting orders for a child to live with the parent, since homosexuality of a parent used to be viewed as a negative influence on the child. Obviously, such views have changed with the times, reflected by the Family Law Act with the definition of a recognised de facto partnership under s 60EA, which specifically includes same-sex couples, and the presumption of parentage arising from registration of birth under s 69R, which enables both same-sex parents registered on a birth certificate to obtain parental responsibility. As such, this DKN is now an archival classification only.
Other improvements to the Family Law and Child Welfare title include added DKNs under the Property and Maintenance of Parties range, such as breach of disclosure obligations under the matters for the court’s consideration in altering property interests, and the specific power of the court to order litigation funding in relation to property, spousal maintenance and maintenance agreements.
As with all other titles in our classification scheme, we are constantly improving and updating each area, to ensure the scheme remains up to date and the cases can find exactly the right home to which to be classified.