NEWS

Family Violence in the Spotlight

If you are amongst the one in five parents who has ongoing safety concerns about your child’s contact with their other parent, then the proposed changes to how the Family Law Act deals with Family Violence, will be of interest to you.

The Family Violence Bill, proposes amendments to the Family Law Act 1975 (Cth) in the following areas:-

• Prioritising the safety of children
• Changing the meaning of “family violence” and “abuse” to better define harmful behaviour”
• Strengthening the obligations of lawyers, family dispute resolution practitioners, family consultants and family counsellors
• Ensuring Courts have better access to evidence of family violence and abuse and making it easier for Authorities to participate in Family Law proceedings where appropriate.

 Proposed Changes for How the Legal System Deals with Family Violence

The Family Law Amendment (Family Violence) Bill 2010, recently made available for public comment, looks at proposed changes to the Family Law Act 1975 (Cth) relating to the issues family violence.

The need for change to the Family Law system and its approach to family violence is a result of reports commissioned in 2006.

The Bill aims to amend the Family Law Act to strengthen the role of Family Courts, advisers and parents in preventing harm to children while continuing to support the concept of shared parental responsibility and shared care, where these are safe. In particular, the Bill proposes the amendments set out below.

Best Interests of the Child

Currently

The Family Law Act when determining the best interests of the child, the Court has two primary considerations:-

1. The benefit to the child of having a meaningful relationship with both parents;
2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The information which has been gathered in research, suggests that in practice, parents give greater attention to the benefit of a child having meaningful involvement with each parent which may in turn, lead to decisions that are not in the child’s best interests.

Proposed changes

To direct Family Courts to give greater weight to the primary consideration of protecting the child from harm above the benefit of having a meaningful relationship with each parent, where there is inconsistency in applying the primary considerations. It would not affect the treatment of cases where abuse and family violence are not a concern.

Redefining “Family Violence”

Currently

The Family Law Act defines “family violence”’ to mean “conduct, whether actual or threatened by a person towards, or towards the property of, a member of the person’s family that causes that family member or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about his or her personal well being or safety”.

Proposed changes

The Family Law Council suggested that definition is too narrow and should be broadened.

The new definition of family violence should better specify the type of behaviour that constitutes family violence and should recognise that such violence can take the form of physical assault, harassment, emotional manipulation, financial abuse and threatening behaviour.

Redefining “Abuse” of a Child

Currently

The Family Law Act defines abuse in relation to a child as including sexual assault, assault and sexual exploitation.

Proposed changes

To bring the definition of abuse in line with what research suggests is damaging to children, it is suggested that the definition is broadened to cover other forms of abuse such as non-accidental physical injury, exploitation and psychological abuse and including where serious harm is caused by exposure to family violence. It is also proposed that “serious neglect” of a child amounts to abuse by omission and this should also be reportable by those dealing with children’s matters such as:- Court personnel, family dispute resolution practitioners, arbitrators, independent children’s lawyers.

Obligations for Advisers in the Family Law System

Currently

Advisers have an existing obligation to give advice in relation to Parenting Plans; this advice must serve the best interests of the child. Research suggests that advisers place greater emphasis on the benefit of the child having a meaningful relationship with both parents and subordinate the protection of the child from harm. Currently, the Family Law Act does not impose obligations on advisers at a general level.

Proposed changes

New obligations would be introduced for advisors who discuss matters arising under Part VII of the Family Law Act and amend existing obligations in relation to Parenting Plans. Advisers would have obligations to encourage parents to consider the child’s best interests as the paramount consideration and require parents to prioritise protecting the child from harm where family violence and abuse are concerns.

Providing Information of Violence or Abuse to the Court

Currently

There is no existing requirement in the Family Law Act to compel Family Law practitioners and parties to report family violence to the Court, despite the Family Law Rules requiring them to do so.

Proposed changes

The Bill proposes that there be a requirement that parties to proceedings, who allege family violence, file a Notice of Child Abuse or Family Violence with the Court. Once reporting occurs, the Court will be required to act promptly to ensure the issues are dealt with expeditiously.

There is also a proposal that obligations are imposed on parties to proceedings to tell the Court if a care order under a child welfare law is in place for a child and if the child is or has been the subject of a notification to or an investigation by a child welfare authority.

The Bill suggests that the Court should be more proactive in its approach and there is a proposal that Courts dealing with applications for parenting orders should enquire about past or future risk or previous experience of the children concerned in relation to child abuse and family violence. This would impose a duty on the Court to take steps to identify the parties’ views on past risk or experience or future risk to the children.

Removing the “Friendly Parent” Principle

Currently

There is a principle known as the “friendly parent” principle which is where the willingness and extent to which one parent has facilitated the child having a relationship with the other parent is taken into account in determining the best interests of the child and ultimately, orders dealing with parenting arrangements and parental responsibility. Research suggests that some legal practitioners caution parents against alleging family violence or abuse where there is limited evidence, to ensure that victims of family violence are not characterised as “unfriendly parents”.

Proposed changes

To remove the “friendly parent” provisions of the Family Law Act. Removing this provision does not prevent the Court from considering a range of matters relevant to the care, welfare and development of a child such as the parent’s attitude to the responsibilities of parenthood.

Costs Orders

Currently

There are provisions in the Family Law Act which direct the Court to order a party to pay costs in certain circumstances. This provision has been found as a disincentive to disclose family violence and can prevent vulnerable parents in raising legitimate safety concerns where they will be subject to a costs order if their claims are not substantiated.

Proposed changes

To remove the mandatory cost order provision in the Family Law Act. It is suggested that the Courts have a broad power to order costs against a party and that power is adequate to deal with false allegations or false denials of family violence.

The Bill can be viewed on www.ag.gov.au-familyviolencebill

The public are invited to comment on the proposed amendments. The final date for submissions is 14 January 2011.

If you are affected by Family Violence and require advice or assistance in approaching the Family Court to deal with any issue, please contact us.