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What further legislative change is required in the Family Law Act ?

Various discussions around additional changes needed

Appeals

A posting from Geoff Holland as part of a letter to the Chief Justice…
It is worth pointing out, as I understand it, that a review would not normally be allowed in the Family Court system as Appeals must be based on an error of fact, or an error of law, and not an error of "discretionary judgment" and that Justice Carmody's decision was a "discretionary judgment."  As an aside, I would suggest this is a flaw in the Family Court system that needs to be addressed!
What do others think about possible areas of law yet to be looked at.  :)

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Strength of the Law in relation to Allegations of abuse

Strength and timeliness of responses by Judicial Officers of the Court in response to apparently false allegations of abuse, particularly Sexual Abuse. I am currently working with a number of fathers who have allegations made against them.

A common theme is obvious. Most have been in and out of court for 2 to  4 years, with no resolution to date. All have family reports and other genuinely independent "Expert" reports expressing grave concern at the damage being done to the children by the alienation and programming conducted by the custodial parent (excuse the term, but it is the only one that fits). As well as the primary (usually multiple) abuse allegations, there are usually others including petty theft and DV. Yet, nobody is willing to look at the ongoing pattern of allegations, often dragging on for months and years because of the delay in getting to trial.

All of these fathers also share a common problem, witnessing their children being abused before their eyes, yet absolutely powerless to take any realistic steps to manage or eliminate the damage being done to their children.

While Mr Howard is correct, post family breakdown arrangements are generally a "relationship" question. Making false reports and swearing false affidavits is criminal in every forum outside family law. Yes, the 1 July 2006 amendments require a costs order to be made against a parent making deliberately false allegations. Is this enough? For the reality is in many cases the courts will be loath to make the order because the parent has no income other than Government income support.

For me - Shared Parenting is a Reality - Maybe it can be for you too!

Allegations of child abuse or family violence

oneadadc said
Strength and timeliness of responses by Judicial Officers of the Court in response to apparently false allegations of abuse, particularly Sexual Abuse. I am currently working with a number of fathers who have allegations made against them. Making false reports and swearing false affidavits is criminal in every forum outside family law. Yes, the 1 July 2006 amendments require a costs order to be made against a parent making deliberately false allegations. Is this enough? For the reality is in many cases the courts will be loath to make the order because the parent has no income other than Government income support.
The new provisions ( see post on Family Violence in this forum)
Secretary_SPCA said
The SPCA often hears of, or receives complaints that one parent is making allegations of violence or some other false allegation that slows up any proceeding and significantly disadvantages the contact parent.

The following sections relate the new legislation to specific actions that are now required.

60K Court to take prompt action in relation to allegations of child
abuse or family violence……………………………………….133


Subdivision D - Allegations of child abuse 205
67Z Where party to proceedings makes allegation of child abuse …..205
67ZA Where member of the Court personnel, family counsellor,
family dispute resolution practitioner or arbitrator suspects
child abuse etc. ……………………………………205
67ZB No liability for notification under section 67Z or 67ZA…………….207

117AB Costs where false allegation or statement made ……………………….459

AND

Division 8–Other matters relating to children

- liability of a father to contribute towards child bearing expenses if he is not married to the child's mother

- orders for the location and recovery of children

- reporting of allegations of child abuse

- other orders about children

AND

60K Court to take prompt action in relation to allegations of child abuse or family violence

(1) This section applies if:

a) an application is made to a court for a Part VII order in relation to a child; and

b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and

c) the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:

(i) there has been abuse of the child by one of the parties to the proceedings; or

(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or

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

(iv) there is a risk of family violence by one of the parties to the proceedings; and

d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.

(2) The court must:

a) consider what interim or procedural orders (if any) should be made:

(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

(ii) to protect the child or any of the parties to the proceedings; and

b) make such orders of that kind as the court considers appropriate; and

c) deal with the issues raised by the allegation as expeditiously as possible.

The court must take the action required by paragraphs (2)(a) and (b):

a) as soon as practicable after the document is filed; and

b) if it is appropriate having regard to the circumstances of the case - within 8 weeks after the document is filed.

(3) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.

(4) Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.

(5) A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.

AND

67A What this Division does

This Division deals with:

a) the liability of a father to contribute towards child bearing expenses if he is not married to the child's mother (Subdivision B); and

b) orders for the location and recovery of children (Subdivision C); and

the reporting of allegations of child abuse (Subdivision D); and

(d) other orders about children (Subdivision E).

AND

Section 67Z
Subdivision D - Allegations of child abuse

67Z Where party to proceedings makes allegation of child abuse

(1) This section applies if a party to proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at
risk of being abused.

(2) The party must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

(3) If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.

(4) In this section:

prescribed form means the form prescribed by the applicable Rules of Court.

Registry Manager means:

a) in relation to the Family Court - the Registry Manager of the Registry of the Court; and

b) in relation to the Family Court of Western Australia - the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and

c) in relation to any other court - the principal officer of that court.

AND

102A Restrictions on examination of children

(1) Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.

(2) Where a person causes a child to be examined for the purpose of deciding:

a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or

b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused; subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.

(3) In considering whether to give leave for a child to be examined, the court must have regard to the following matters:

a) whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;

b) the qualifications of the person who proposes to conduct the examination to conduct that examination;

c) whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;

d) any distress already caused to the child by any previous examination associated with the proceedings or with related
proceedings;

e) any other matter that the court thinks is relevant.

(4) In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:

a) the evidence relates to relevant matters on which the evidence already before the court is inadequate; and

b) the court will not be able to determine the proceedings properly unless the evidence is admitted; and

c) the welfare of the child concerned is likely to be served by the admission of the evidence.

(5) In this section:

examined, in relation to a child, means:

a) subjected to a medical procedure; or

b) examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).

Note: Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the
law against hearsay.

AND

117AB Costs where false allegation or statement made

(1) This section applies if:

a) proceedings under this Act are brought before a court; and

b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.

Part XV Miscellaneous
Section 117A
460 Family Law Act 1975

(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.

AND

117A Reparation for certain losses and expenses relating to children

(1) Where:

a) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened a parenting order to the extent to which the order provides that:

(i) a child is to live with a person; or

(ii) a child is to spend time with a person; or

(iii) a child is to communicate with a person;

b) a person has been convicted of an offence against section 65Y or 65Z in respect of a child;

c) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened an injunction granted, or an order made, under section 114; or

d) a person has been found to be in contempt of a court exercising jurisdiction under this Act by reason of having taken a child away from another person or having refused or failed to deliver a child to another person; a court having jurisdiction under this Act may, subject to subsection (2):

e) on the application of the Commonwealth - order the person to make reparation to the Commonwealth or to a Commonwealth instrumentality, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the Commonwealth instrumentality, as the case may be, in recovering the child and returning the child to a person; or

f) on the application of any other person - order the first-mentioned person to make reparation to that other person, by way of money payment or otherwise, in respect of any loss suffered, or expense incurred, by that other person in recovering the child and, if applicable, returning the child to a person.

(2) Nothing in subsection (1) empowers a court to order a person to make reparation to the Commonwealth, to a Commonwealth instrumentality or to another person in respect of any loss suffered, or any expense incurred, where a court has, under section 21B of the Crimes Act 1914, ordered the first-mentioned person to make reparation to the Commonwealth, to the Commonwealth instrumentality or to that other person, as the case may be, in respect of the same loss suffered or expense incurred.

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