FAMILY: by Susan Reibel MooreNews Weekly
Parental duty of care fails adolescents
, October 8, 2005
Australian family law considers an adolescent of 16 to be fully adult. But if his parents divorce and then abandon him, he has no legal redress, writes Susan Reibel Moore.Under Australian family law, a post-divorce court settlement can often result in the innocent party, often the father, effectively being denied access to his children.
That this injustice has finally become a matter of public concern is thanks largely to John Hirst's Quarterly Essay No.17, Kangaroo Court: Family Law in Australia
, published earlier this year.
An equally important legal issue, however, which has received little public attention, is the meaning of the term "duty of care", applied to parents' responsibilities for children.Emotionally vulnerable
Since the passage of the Family Law Act in 1975, a child is considered fully adult at the age of 16. What this means is that adolescent children of broken families, at one of the most emotionally vulnerable periods in their young lives, have no legal redress if one or both of their parents abandons them.
In intact families, as we all know, adolescence imposes large stresses in the home - financial as well as emotional and moral.
At no other period does the family incur greater expenses. Obvious ones for 16-year-olds include clothing for extra-curricular school activities and job interviews, transportation to and from home, and an array of educational resources including HSC text-related aids and home computers.
Additional stresses are linked with youngsters' decisions about their future. Obvious tough decisions faced by 16-year-olds include which subjects to study, whether to secure part-time work to help defray prospective vocational costs, how to handle peer pressure, how to become more independent of parents without creating severe familial upheaval, and how to handle relationships - especially, sexual ones. In stable homes, joint parental guidance makes it much easier for youngsters to cope; but even then, stress is unavoidable.
For 16-year-olds who face family break-up in addition to these other large issues, daily life can easily become unmanageable - particularly if one or both of their parents decides to relinquish all duty of care because the Family Law Act considers a 16-year-old to be fully adult.
We know from countless studies of family life that, among adolescents from broken homes, the incidence of substance abuse, crime, and poor school performance is significantly higher than it is for 16-year-olds who live in intact homes. The plight of children whose parents relinquish their duty of care is far worse. Yet the Family Law Act has not been amended to take into account these well-known research conclusions.
Devoted fathers and mothers normally take it for granted that their duty of care does not end when their progeny reach the age of 16.
Even when children are adult and independent - typically, when they are in their 20s - concerned parents normally help them in key areas of daily life.
Many provide loans for cars, housing, and vocational expenses related to vocational course work (materials required for TAFE, for example). Many more offer free or inexpensive room and board at the family home.
Why, then, has there been relative public silence about the Family Law Act's dubious assumption about when adulthood is supposed to begin?
Are there really Australians today who think - as Gough Whitlam's Attorney-General Lionel Murphy obviously did 30 years ago - that the legal duty of care of a wise parent should legitimately end when a child is only 16?