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A-G Submission Due By 14 January 2011.

Hi to Everyone

As noted above, the Australian Government has approved the release of the exposure draft of the Family Law Amendment (Family Violence) Bill 2010. This is in order to facilitate further public consultation on proposed family law reforms.  The inquiry is being conducted by the Attorney-General's Department.

The URL for the Attorney-General's Department is:





We are amazed at how far reaching these proposals are. Submissions for the Attorney-General's Department's Inquiry close on 14 January 2011.

Our submission is provided below.

We also have an important Senate Inquiry into the Australian Law Reform Commission. The URL for the Australian Parliament site is:





Submissions for the Senate Inquiry are due by 28 January 2011.

Regards

John

______________________________________________________

NON-CUSTODIAL PARENTS PARTY (EQUAL PARENTING)
11 January 2011.

Family Law Branch,
Attorney-General's Department,
3-5 National Circuit,
BARTON. ACT. 2600.
Email: familyviolence@ag.gov.au
Facsimile: (02) 6141 3248

Dear Sir/Madam

Submission - Family Law Amendment (Family Violence) Bill 2010 - Exposure Draft.

We thank Attorney-General's Department for providing us with the opportunity to make a submission with regard to the Family Law Amendment (Family Violence) Bill 2010.

The draft Bill seeks to significantly expand the definition of family violence. At the same time, it seeks to elevate the issue of (unproven) family violence to above that of the right of children to be cared for by both their parents.

We are completely opposed to the draft Bill.

The reasons for our opposition are provided in more detail below.

1. Introduction

We support legislation that would provide for a rebuttable presumption of equal-time, shared parenting. Your draft legislation does not provide for this presumption.

Children have the right to have contact with both of their parents on an equal basis. This is unless it is genuinely in the children's best interests not to do so (United Nation's Convention on the Rights of the Child, Article 7.1).

Equal-time, shared parenting (joint residency) should be considered as the first presumption when considering where children of separated families are to reside.

* The term Shared Parenting is often wrongly misapplied. We define the term Shared Parenting, more specifically, to mean the rebuttable presumption of equal-time, shared parenting. That is, equal-time, shared parenting can be rebutted only if there are proven mitigating circumstances that would not be genuinely in the children's best interests.

After separation or divorce, children need both parents. Your Family Violence Bill does not have this as a main objective.

As an alternative, we would suggest that you look at the Family Law Amendment (Joint Residency) Bill 2002. A copy of this previous Bill is attached to the Appendix of this submission.

2. Item 1. Subsection 4(1). Definition of Abuse

In the proposed definition of "abuse", the words "serious psychological harm" is used. There is no objectivity in an analysis of what  constitutes "serious psychological harm".

Very often, we have seen children removed from one of the parents. This is simply on the basis of the subjective evidence provided by a family court counselor to a Family Court judge. At the same, this is very often as a result of a very short meeting between the children and the family court counselor.

The definition of "abuse" needs to include the words 'if there are proven mitigating circumstances that would not be genuinely in the children's best interests".

3. Item 3. Subsection 4(1) Definition of "Family Violence"

Your proposed definition of "Family Violence" can include almost anything that is remotely related to family violence.

The words "causes the second person to feel " that there is family violence means that there is no need to provide evidence to back up a claim of family violence.

If the second person "feels" that there is family violence, this feeling has to be accepted. At the same time, the children would be at risk of loosing contact with the other parent and that part of the children's family.

Again, there has to be "proven mitigating circumstances that would not be genuinely in the children's best interests".

4. Item 13. "At the End of Section 60B"

At the end of Section 60B, it is proposed that the United Nation's Convention  on the Rights of the Child be added to item (4) of that section.

Whilst we agree with this inclusion, it does emphasize that your draft Bill is misguided.

Australia was one of the 160 countries that signed the United Nation's Convention on the Rights of the Child in 1989. Australia has never included this document into legislation up to this time.

This is because it could cause possible conflict between the intent of the UN Convention and the legislation (refer Full Court of the Family Court's decision in B and B: Reform of the Family Law Act 1996)

Article 7.1 of the UN Convention states that "the child shall have the right, as far as possible, to be cared for by his or her parents"

There is an obvious conflict between Article 7.1 of the UN Convention and your draft Family Violence Bill. This is particularly where you propose to elevate the issue of (unproven) family violence to above that of the right of children to be cared for by both their parents.

Similarly, Article 3 of the UN Convention states that the "best interests of the child shall be a primary consideration".

Prior to 1995, the Family Law Act had stated that the "welfare of the child shall be a paramount consideration". During legislative changes made in 1995, the Australian legislators only adopted the words "best interests" from the wording of Article 3 of the UN Convention.

At the same time, the legislators left out the word "primary".

The difference in the meaning of the words "paramount" and "primary" is important. At present "the best interests of the children are paramount" that is, they are determinative.

Under the current Family Law Act, only the children have rights; parents and other relatives have no rights whatsoever.

With the inclusion of the word "primary", parents and other relatives would have had rights in family law proceedings involving children.

If you are going to include the UN Convention in your draft Bill, then you should change your priorities with respect to (unproven) family violence. At the same time, you should change your definition of what is the "best interests of the child".

5. Item 17. "After Subsection 60CC(2)".

This states that:

"(2A) If there is any inconsistency in applying the considerations set out 6 in subsection (2), the court is to give greater weight to the  consideration set out in paragraph (2)(b)."

This effectively means that potentially erroneous and false family violence accusations will become paramount when deciding whether or not children are to have contact with both parents.

We disagree with the significance placed on the intention to give greater weight to the unproven allegations of family violence.

The words "proven mitigating circumstances that would not be genuinely in the children's best interests" or similar are not part of your draft Bill.

These important words or similar should be included in the draft Family Violence Bill.

6. Item 22. Section 60D

The heading of Section 60D is "Adviser's obligations in relation to best interests of the child".

The above "greater weight' consideration from Section 60CC(2) is also repeated under this proposed Section 60D. This is with regard to advisers (i.e. a legal practitioner;  a family counsellor; a family dispute resolution practitioner; or a family consultant).

Again, our same comments with regard to ""proven mitigating circumstances" apply to this Section 60D.

7. Item 29 Section 67ZBA

The heading for Section 67ZBA is "Where party to proceedings makes allegation of family".

    This section states that if a party to proceedings alleges:

   (a)  there has been family violence by one of the parties to the proceedings; or

   (b) there is a risk of family violence by one of the parties to the proceedings.


   (the word "alleges" has been underlined).

There is again no mention of the words "unless proven mitigating circumstances" or similar. These words or similar should be included in Section 67ZBZ.

8. Conclusion.

You have proposed that the Bill include the United Nation's Convention on the Rights of the Child in the new legislation. Article 7.1 of the UN Convention states that "the child shall have the right, as far as possible, to be cared for by his or her parents".

There is an obvious conflict between Article 7.1 of the UN Convention and your draft Family Violence Bill. This is particularly where you propose to elevate the issue of (unproven) family violence to above that of the right of children to be cared for by both their parents.

We do not support your draft Bill.

Thanking you.

Yours faithfully



John Flanagan,
Deputy Registered Officer,
Non-Custodial Parents Party (Equal Parenting),
www.equalparenting.org.au


APPENDIX

Family Law Amendment (Joint Residency) Bill 2002.

(This Bill was proposed by the then Senator Len Harris in 2002, but not adopted)


(The 2002 Bill is not included here, please refer to:

www.equalparenting.org.au/wp-content/uploads/2010/11/FAMILY-
LAW-AMENDMENT-_JOINT-RESIDENCY_-BILL-2002.pdf
Thanks to John for his post and detailed submission notes. I will publish some advisory information later today on anyone looking to make a submission. The initial advisory was published in the news here some time ago and in various forums.

Time is short to make a response so please post any queries or requests for assistance if there are any.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Mens Health Australia - Family Law reforms

Greg Andreson said
Dear colleagues,

Changes to the Family Law Act in 2006 finally acknowledged (to a limited extent) that children have the right to a relationship with both their father and their mother after separation and divorce. Unfortunately the current government is attempting to remove much of the progress that was made in 2006, and re-institute a Family Law approach based on the sanctity of the mother as primary carer. If these changes are approved, it will be many years before any changes will be considered again. For that reason, we are hoping that many of you who are concerned with an equitable Family Law system will write an urgent submission - however short - to the Attorney General's department by this Friday 14th January.

We have prepared a Word Document that can be used as the basis for your own submission, should you be short on time. The document includes some of the important principles that are agreed upon by nearly all fathers groups as being the worst features of the proposed legislative changes. We encourage you to pen your own thoughts, but we know that many people do not have the time or expertise to examine draft legislation in detail, so we have listed some major points in case you should wish to use them.

If you decide to use this document, please fill out the yellow sections with your own information, then send it to the address at the top of the letter by this Friday 14th January. Please also CC a copy by snail mail to your own local Federal MP.

Please note once again that the closing date for submissions is this Friday, January 14th.

You can download the pro-forma submission form from the following web addresses:

(Microsoft Word Document) or
(Adobe Acrobat PDF Document)

Please take the time to lodge a submission. We have no doubt that the proposed changes will lead to increased rates of suicide, depression and self-medication in separated fathers, and the potential damage to the lives of children denied access to their fathers is unthinkable.  

Warm regards,

Greg

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Secretary_SPCA I get an HTML 404 (not found) when trying to go to http://menshealthaustralia.net/files/Proforma_Family_Law_Submission.doc and a 403 (forbidden) when trying http://menshealthaustralia.net/files/Proforma_Family_Law_Submission.pdf  (although it did allow me to download the PDF).

Perhaps you could include the documents as downloadable attachments as opposed to links.
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