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Attorney-General McClelland flags shared parenting reforms

Proposed study may affect the thresholds for reporting abuse

McClelland flags shared parenting reforms

Attorney-General Robert McClelland says the Federal Government will consider reforming shared parenting laws if it is found they put women and children at risk of violence.

The laws, which were brought in by the Howard government in 2006, require the Family Court to ensure separated parents get equal time which children.

But concerns have been raised that the laws lock conflict parents together and leave some mothers exposed to violent ex-partners.

The laws are now being reviewed by the Australian Institute of Family Studies.

In a speech today, Mr McClelland said if the review finds the laws expose women and children to violence they will be changed.

"If it becomes clear that current laws and practices may jeopardise the safety of families and children, we must work together to address these shortcomings," he said.

"Once the institute has finalised its report, I will look closely at its recommendations and I will take whatever steps are available to redress deficiencies in the law that affect the safety of women and children."

Mr McClelland says there are still too many families who suffer from domestic violence and he has commissioned a review of how effectively the courts deal with the issue.

Former Family Court judge Professor Richard Chisholm will head the review and Mr McClelland has asked him to consider the recent death of Darcey Freeman in his recommendations.

Four-year-old Darcey's father has been charged with her murder after she was allegedly thrown from the Westgate Bridge in Melbourne earlier this year.

After her death, family members claimed the courts had ignored concerns for her safety.

Prime Minister Kevin Rudd says the Government must do all it can to protect children.

"There is too much violence in the community, there is too much violence towards children - it's unacceptable," he said.

"Therefore the nation has to lift its game."

From Yahoo!News Site

Attorney-General Robert McClelland says the Federal Government will consider reforming shared parenting laws if it is found they put women and children at risk of violence.

The laws, which were brought in by the Howard government in 2006, require the Family Court to ensure separated parents get equal time which children.

But concerns have been raised that the laws lock conflict parents together and leave some mothers exposed to violent ex-partners.

The laws are now being reviewed by the Australian Institute of Family Studies.

In a speech today, Mr McClelland said if the review finds the laws expose women and children to violence they will be changed.

"If it becomes clear that current laws and practices may jeopardise the safety of families and children, we must work together to address these shortcomings," he said.

"Once the institute has finalised its report, I will look closely at its recommendations and I will take whatever steps are available to redress deficiencies in the law that affect the safety of women and children."

Mr McClelland says there are still too many families who suffer from domestic violence and he has commissioned a review of how effectively the courts deal with the issue.

Former Family Court judge Professor Richard Chisholm will head the review and Mr McClelland has asked him to consider the recent death of Darcey Freeman in his recommendations.

Four-year-old Darcey's father has been charged with her murder after she was allegedly thrown from the Westgate Bridge in Melbourne earlier this year.

After her death, family members claimed the courts had ignored concerns for her safety.

Prime Minister Kevin Rudd says the Government must do all it can to protect children.

"There is too much violence in the community, there is too much violence towards children - it's unacceptable," he said.

"Therefore the nation has to lift its game."


Joint Media Release

Commonwealth Attorney-General
The Hon Robert McClelland MP

New South Wales Acting Attorney-General
Verity Firth MP

24 July 2009

REVIEW OF LAWS TO PROTECT WOMEN AND CHILDREN

Commonwealth Attorney-General, Robert McClelland, and New South Wales Minister for Women and Acting Attorney-General, Verity Firth, today announced a joint investigation into the harmonisation of domestic violence and family law.

"The primary aim of this work will be to address inconsistencies so as to ensure women and children are better protected under both Commonwealth and State laws," Mr McClelland said.

The report, to be conducted by the Australian and New South Wales Law Reform Commissions in consultation with other jurisdictions, will address inconsistencies in the interaction and application of Commonwealth and State laws regarding domestic violence, child protection, sexual assault and family law.

It will also examine ways in which laws can better protect women and children from domestic violence when a case crosses State boundaries and involves multiple jurisdictions.

Ms Firth said state Attorneys-General will also investigate the rollout of a national registration scheme for domestic violence orders.

"Some women move to another state to escape a violent relationship and are often unaware they need to re-register a violence order," Ms Firth said.

The report, to be completed by July 2010, will form part of a National Action Plan to address violence against women and children.

This follows the 'Time for Action' report, by the National Council to Reduce Violence Against Women and their Children, which found that there was high level of complexity between Commonwealth and State laws that aim to protect women and children.

Report found @ http://www.fahcsia.gov.au/sa/women/pubs/violence/np_time_for_action/national_plan/Documents/The_Plan.pdf

The intention to increase the role of solicitors in the FRC process have been floated. Who is to pay?

The reduction in child interviews are sought. As are a uniformity in the diverse entities which deal with complaints.

Measures to protect the children need to accommodate the unwarranted allegations and abuse of children by a parent have not been mentioned. There was mention on the news broadcast that the Family Law threshold was too low. That might need further research to understand what is being proposed.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha

Time for Action Report Extracts

Excerpts from the report "Time for Action":

The nexus between family law, child protection and domestic and family violence

Domestic and family violence is a common cause of relationship breakdown, with the process of separation creating specific vulnerability to chronic and dangerous post-separation violence for some women and their children. The violence they experience can escalate and take different forms after separating (such as stalking; actual or threatened child abduction; and litigation abuse, including legal action to prevent abused women and children from re-locating).

Paradoxically, and in spite of the dangers, separation is a key safety strategy that women and their children use to escape violence and the escalation of trauma-induced mental health problems. Many child-protection workers regard women continuing to live with domestic violence as evidence of a failure to protect. Separation from the perpetrator of violence and abuse is a primary safety strategy advocated by child-protection workers who sometimes threaten removal of children from the home if action to separate is not taken. Issues of family violence and child abuse are therefore central, not peripheral, issues in the family law.

The Family Law Amendment (Shared Parental Responsibility) Act 2006, however, represents a potential obstruction to a just and integrated response to family violence in Australia. The Act states that in determining what is in the childs best interests, the court must consider the matters set out in subsections (2) and (3). Subsection (2) states: the primary considerations are: a) the benefit of the child of having a meaningful relationship with both of the childs parents; and b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

Under the Family Law Amendment (Shared Parental Responsibility) Act 2006, it is left to the court to decide how to reconcile the objectives of a childs right to a meaningful relationship with both parents and the protection of the child from exposure to violence when there is conflict. Section 61DA also states that: [w]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the childs parents to have equal shared parental responsibility for the child.

While the legislation does not necessarily privilege either of the primary considerations, it seems that there have been considerable problems in reconciling the two in practice. Under previous (almost identical) legislation, evidence emerged that a very strong pro-contact culture had arisen and that the the opportunity for a significant relationship with both parents took precedence over a history or even recent experiences of violence and abuse. Evidence from the Councils consultations, and from the judiciary itself, tends to show that such a presumption is inappropriate for a great number of families using the Act.

Firstly, the legislation places the burden of rebutting this presumption on the most vulnerable people who are using the Act (namely women and children escaping violence and abuse). This is because evidence is required to show that there are reasonable grounds that the parent of the child has engaged in abuse, or family violence, or that it is not in the childs best interests to have shared parental 102
 
Secondly, where there is violence, women are commonly unable to meet both the protective parent criteria and the criteria for a friendly parent, defined as the willingness of each parent to facilitate the childs relationship with the other parent, and they risk state child protection intervention without a protective stance towards the safety and well-being of their children. And, finally, the tension between the childrens long-term need to know their father in a pro-contact culture, over their safety and wellbeing and damage to their neurological development requires early evaluation and review. The Council therefore proposes that any future reform be informed by both empirical research and the views of those involved in the family law system.

It is also the case that State and Territory civil protection orders and orders under the Family Law Act 1975 can overlap or conflict. While state legislation is progressively widening definitions of domestic and family violence, the Family Law Amendment (Shared Parental Responsibility) Act 2006 has moved to a more restrictive definition, whereby the person must be in reasonable fear or apprehension for their well-being or safety due to actual or threatened conduct of a violent family member. There is anecdotal evidence from Womens Legal Services Australia that this tension can result in orders that are unenforceable in practice. The 2008 Report on Domestic Violence and Sexual Assault Laws in Australia also notes the difference between legislation as written and legislation in practice.

Many State and Territory magistrates are concerned about cutting across Family Law Act 1975 matters, and they do not use legitimate powers to revive, vary, discharge or suspend existing Family Law Act 1975 orders that relate to contact with children when these may be jeopardising the safety of women and children. Further, the inherent tension in the Family Law Amendment (Shared Parental Responsibility) Act 2006 between facilitating childrens contact with both parents and protecting children and their parents from family violence is exacerbated when child contact is written as an exception on protection orders and state police may then be reluctant to enforce orders.

It should be noted that the family courts have the power to clarify inconsistencies, and some States and Territories have now strengthened the civil protection legislation to provide clarity and direction to magistrates to enhance the safety and protection of children. Some also provide extensive training in relation to children, family violence and the impact of contact orders which could form a comparative point of difference to identify the most effective legislative and policy utilisation of ouster/exclusion orders.


Presentation of evidence

Certain sections in the Family Law Amendment (Shared Parental Responsibility) Act 2006 can tend to mitigate against the presentation of evidence of violence in the first place. These include: the provision that some or all of the costs of litigation can be awarded against a party knowingly making a false allegation or statements in the proceedings; the more restricted definition of family violence; and the friendly parent provision which assesses the willingness of each parent to facilitate the childs relationship with the other parent. This is of significant concern because past violence, although not always recognised by the future-focus of family law, is the key indicator of future violence.

The evidence of past violence is therefore needed to inform decision making in family law proceedings and to rebut the presumption of shared parental responsibility, but the obstacles to information-sharing by stakeholders in the family law system remain a significant impediment to ensuring that women and their children are safe. Evidence of violence is collected on a case-by-case basis via subpoenae to different organisations, but confidentiality guidelines and legislative limitations on disclosure restrict access to child-protection records, civil and criminal law records and education and medical records.

With the exception of the Family Court of Australias Magellan Case Management project, there is a factual vacuum as there are few formal agreements and communication channels between organisations able to provide this evidence, and neither the Family Court of Australia nor associated socio-legal services have the power to investigate allegations of abuse.

Service practices also vary across jurisdictions and a recurrent problem occurs when child protection workers close cases as soon as a viable carer is identified and they do not provide active support through the court and follow-up monitoring to ensure the safety of the contact arrangement167. Practices regarding communication and coordination between state child protection departments, and between those departments and courts dealing with Commonwealth family law matters, require development.

Protocols between child protection and family law also need to be expanded upon and/or uniformly applied, to resolve problems of evidence, coordination and case management. Joint education forums between family law and child protection practitioners to address the procedural and legislative conflicts would also result in practical benefits for women seeking legal redress for violence.


What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
The family court was placing some children with abusive parents long before the new shared parenting laws came into being. I have mentioned this before in these forums. I saw the writing on the wall end of last year when the attorney general dept began looking at altering the current position. This was long before the case that is claimed to be the catalyst, the child thrown off the westgate bridge.

I still believe that persons who opposed the shared parenting laws long ago, are vying to capture the ear of a new parliament, and without reason.

Shared parenting has nothing to do with domestic violence. Shared parenting is the common norm, and domestic violence is not the norm.

In parliiaments, there is a tendency for the pendulum to swing. Automatically, lazy or ignorant or ll-informed pollies, can end up taking an opposite approach, or make new legislation tweaking a matter, when it is unnecessary. Many occasions pollies have thought that some issue I was looking at would require new legislation when I can easily work with the existing legislation, and often the reason was that someone was not going by the book. How can it be in this day and age that excellent evidence standards are so easily evaded, and a wrong decision made that endangers people. It is true, that not all cases will be detected prior to catastrophe, but I do not believe for a minute, that those cases amount to more than a very small percentage.

It may sound like I do not like pollies, or judges, but that is not true, and they are well aware of my views about some of their work, and have known for years. They also occasionally send me thank you letters, along with the usual bundle of 'kiss off' letters. Sometimes I do wonder if the reason pollies jump so quickly to 'new legis needed' statements is simply because having been called upon to do something, the first thing that comes to their mind is we make legis, and they forget that there is more out there for them.
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