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The Family Law Act - Holy Grail or Patchwork Quilt

We find ourselves again facing a major change to the Act in June 2012, where the Legislature has made another attempt to deal with families after separation.

We find ourselves again facing a major change to the Act in June 2012, where the Legislature has made yet another attempt to deal with families after separation. What has changed in the Family Law landscape to warrant recent amendments given the last major Bipartisan Senate reforms passed in 2006, arising from the Parliamentary enquiry and report, Every Picture Tells a Story?

I have analysed some of the key issues and results of these "quite significant" changes to the fundamental Act that governs the families and children after separation in this great nation. This article I penned in the last few days was submitted to Macquarie University for publication in the prestigious Macquarie University Law Society magazine "The Brief".

My learned and professional colleagues and associates will, I am sure, have other valid and relevant views, however I have written this piece to try and give those who have not had an intimate background and relationship with all legal matters in this journey, some sense of where we have come from and what the expectations may be.

Should you feel so inclined please take the time to make commentary (good or bad criticism will be accepted here moderators) and give me some idea of areas that concern you, or that you are relatively happy with, so that we may take these important issues up with the legislators.

Attachment
The Family Law Act - Holy Grail or Patchwork Quilt - Wayne R. Butler

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
 
Thank you Secretary, that was a very interesting read, and you have obviously put a lot of thought and work into writing this.

It is very interesting to read a paper written by "the other side". I live on the side of those that wanted these laws changed, due to family violence. The changes will help me and protect my children. Maybe the next step in the campaign should be trying to find a way to stop those who play with these laws, lie and abuse the system. These people should be stopped.

"When we long for life without difficulties, remind us that oaks grow strong in contrary winds and diamonds are made under pressure"
Thank you very much indeed Gecko for your valuable feedback and also for taking the time to read the fairly substantial item. I often wonder if the material we produce is wholly balanced, well received and I can say that I do try to take the time to see every view point when formulating policy.

I had a smile reading your comment about "being on the other side" as I had never considered my writing to be pro one side or the other. I was eyeing up a nice new Apple Computer the other day and my young companion suggested I was about to join the "Dark Side". I took that to mean I was moving into uncharted territory, having been a Windows fan for many years. I will take your comment on board.

I am sure the primary interest we all have, is safe secure relationships for children with their separated parents. However, what perplexes me somewhat is the fact that there is not a single piece in the new legislation that will bring about any fundamental change in community values toward violence and a reduction in physical (particularly) violence in the greater community or in particular families. This is a fact that seems to have had no interesting dialogue on any forum.
Gecko said
Maybe the next step in the campaign should be trying to find a way to stop those who play with these laws, lie and abuse the system. These people should be stopped.
We have some terrible cases coming out of WA particularly, where AVO / Intervention orders are being used to completely eradicate a good parent from the children's lives, strip assets away and leave a parent destitute. There is much anecdotal evidence around exadurated claims, falsities and fabrications and even more interesting material from Magistrates themselves on this topic.

How do you change human nature and in particular a parent who feels so aggrieved at all the ills and tribulations during a relationship that they do anything and everything possible to destroy the other parent.

I am not sure that anything we can do in the legislative area will fix this. Would the fundamental premise of a presumption of equal time, enshrined in law, and negotiated after separation as to the actual detailed amount each parent can physically accommodate have any real affect here. That is the next step I would suggest. Certainly I, and some of my colleagues, are looking at ideas to give limited but immediate contact early on.


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
 
Good luck with it all Secretary. I hope that one day the system will be seen as a safe, fair and equitable place for all who venture within its walls.

"When we long for life without difficulties, remind us that oaks grow strong in contrary winds and diamonds are made under pressure"
Mr secretary, thanks for a a good overview of the current stae of play.

I thought there were some excellent insights, including the very pertinent observation with respect to anecdotal evidence and significant legal reform. This is not McClelland's finest moment, although it must be remembered that he was played for a sucker by the Emily's List goons who used his considerable legal clout to give the Family Violence bill credibility that Roxon could never have hoped to achieve if she had been given the job. As soon as he had done the job he was dumped in favour of the second-rate Roxon.

The important points from your piece as I saw them were the one already mentioned, as well as the one in regard to the removal of the standard of evidence with respect to claims of family violence. I'm still at a loss as to how a legal practitioner of McClellend's standing could have allowed that one to be foisted on him. It makes a mockery of the judicial process if one is permitted to make claims that will be actioned as though they were properly tested, but will undergo no scrutiny at all.

The broadening of definitions was always going to be a problem, since the legal establishments within the various states have been engaged in a race to see who can make the definition the most broadly-encompassing, driven by police forces that want to be able to use coercive powers with no genuine investigation of circumstances. This makes the job of front-line police easier and makes the task of police integrity units smaller, since if there is no judgement exercised than the question of "integrity" becomes one of mere "compliance", something that is much easier to both investigate and to define. Given this external influence, it's hard to see how the Commonwealth could have avoided using congruent definitions to those accepted by the states. That doesn't make it right, of course.

On a broader point, I'm very uncomfortable with BIC as a model. It seems to me that the BIC are often something that can only be determined in hindsight, apart from the obvious need for food, accommodation, clothing and general nurturing. Very many parents, when they have become grandparents or simply had their children grow up, will say things along the lines of "I wish I'd done thus and so, but Johnny seems to have come out OK." The move to give judicial officers greater control over the lives of people whose only "crime" is to fail to remain as a couple is quite ill-conceived. It creates a cause for argument, it reduces the parents to no more than conditional custodians of State property - their child. I remain unconvinced that for the vast majority a judge is more interested and better placed to make decisions about a child's future than its parents. Apart from anything else, His Honour is operating in a highly constrained environment.

I expect the Family Law to morph over time into a law that states precisely what obligations a parent must fulfil on behalf of the State in order to produce an economic unit (child) that is to the state specification. It's the logical extension of the progress of the art to date.
Deleted again! Hmmm, I thought the Sec wanted feedback, a bit hard when the link doesnt work. A bit hard to take you lot seriously when you delete stuff that doesnt sit with your view!
 
 Anyhoo, here's my post again, before it was rudely deleted and censored.

I was about to sit down and read this document but ironically the file appears to be damaged beyond repair and couldnt download!

But from your comments I must say I dont really understand this:However, what perplexes me somewhat is the fact that there is not a single piece in the new legislation that will bring about any fundamental change in community values toward violence and a reduction in physical (particularly) violence in the greater community or in particular families.

Im assuming you are well aware of the introduction of the Family Violence Bill 2012? And yes, there has indeed been some terrible cases coming out of Western Australia. Did you see the harrowing investigative documentary on Four Corners - A Matter of life and death last night?

I think the other side comments made by Gecko were pertinent considering your opposition and response to these badly needed law reforms. It is this mentality of minimising, myth making, denial and insistence on a parents rights over and above child safety that has caused the police and the wider communitys failure to respond and take seriously domestic violence. This failure has caused untold damage that continues to flow on through generations.
Samba said
…I was about to sit down and read this document but ironically the file appears to be damaged beyond repair and couldnt download!
I am not sure why you cannot download it as there have been 3261 downlaods to date. Have you tried right click and save as? Failing that I will reload up a new PDF to you directly.
Samba said
…..
But from your comments I must say I dont really understand this:However, what perplexes me somewhat is the fact that there is not a single piece in the new legislation that will bring about any fundamental change in community values toward violence and a reduction in physical (particularly) violence in the greater community or in particular families.

Im assuming you are well aware of the introduction of the Family Violence Bill 2012?
I am well aware and in fact made a significant submission to that legislation, attended many forums and workshops around the Bill and its final introduction in the dead of night with few in the Senate actually interested. There has been much written here, and elsewhere about that Bill so I will not cover any of that.

However what I will say is that from my perspective there is not much there, if anything that will reduce any violence anywhere. If the Government has intended that to be so then they have failed abysmally. Do you honestly think anyone contemplating violence or in particular Family Violence is actually going to read the new amendments before doing so or sit down and read the full Family Law Act prior to committing violent or abusive activity ? If you have some part of the act that you think will act as a deterrent and reduce violence anywhere including in the family then please discuss and show me in detail how that will work.
Samba said
…And yes, there has indeed been some terrible cases coming out of Western Australia. Did you see the harrowing investigative documentary on Four Corners - A Matter of life and death last night?
Look I am very grateful that you published the link which I took a liberty to tidy up on your post. This was an absolute travesty of justice for those mothers and indictment as to the complete incompetence of the WA Police.  The fact the Police suggested because the offender lived in another town he would not visit the mother and child was absurd and the coronial enquiry made mention of the fact the Police ought to have been aware that the automobile had been invented. Both cases were a tragedy as have been many involving children, fathers and mothers who have done appalling things to their children. I am  currently involved in cases where both the mother in one case and in another the father has been abusive, comitted famiy violence and in a case abducted the child to another State. It is not confined at all to one gender here.

Do you seriously believe that the amendments made to the Act and implemented in June this year will have prevented any of those deaths? I certainly don't believe that to be the case and nor do I believe the Family Court are in any way shape or form accountable for the despicable actions of those deranged people who do this sort of thing. As far as we saw on the program the issues appeared to be entirely to do with the police handling of both intervention order breeches.

One issue we are only just touching on now is the issue of mental health. The new NDIS (National Disability Insurance Scheme), which Professor Allan Fels discussed at the Press  lunch today called for mental health to be included in the National Disability Insurance Scheme (NDIS).

Speaking at the National Press Club in Canberra, Prof Fels highlighted that the NDIS should extend to people with mental disabilities as well as physical disabilities as the Productivity Commission recommended.

Many people going through divorce and separation have mental health issues, drug and substance abuse issues, some are trumatised and depressed. The NDIS may address some of these issues which seems to me to be more positive starting point rather than amending the Family Law Act and removing quite adequate provisions. Even noted Prof Parkinson admits that anacdotal evidence was a factor in the amendments being made and my intepretation of his commentary is that he has well founded concerns for the operation of some parts to the new amendments. Time will tell as to the effectiveness or othewise.
Samba said
…I think the other side comments made by Gecko were pertinent considering your opposition and response to these badly needed law reforms. It is this mentality of minimising, myth making, denial and insistence on a parents rights over and above child safety that has caused the police and the wider communitys failure to respond and take seriously domestic violence. This failure has caused untold damage that continues to flow on through generations.
I am not sure where you possibly get the idea I oppose badly needed law reforms.

I am at the forefront of legislative reform for both Family Law and Child support legislation as well as State laws that are either in need of reform, archaic or past their use by date. I am interested in getting the best possible outcomes for children who are going through difficult family separations and to try and get the legislation into some shape or form that allows both mediators and practitioners, as well as the Family Courts to set up an environment where parents can attempt to continue on their parenting after separation. Not a lot to ask for you say?

What I do oppose is sloppy legislation and the perpetuated myth that changes to the Family Law Act made in June are going to make a difference in the level of violence. It is simply not going to happen. You will still have increasing violence in the community regardless of what Family Law Act changes you make.

I also oppose changes to legislative instruments made on the basis of anecdotal evidence (as was the case) and most certainly the removal of any and all standard of evidence as well removal, for no good reason, of carefully crafted legislation passed by both parliamentary houses, made in 2006 such as 60CC (3) (c )

in matters around the implementation of the definition of family violence in the Act removal of the following text is significant.
"A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety."

The Removal of any judicial or qualifying test will mean all allegations will have to be accepted on "face value". In his recent writing, "The Family Violence Amendments to the Family Law Act 1975", Federal Magistrate David Halligan asks an important question about the removal of any judicial test, "Does this mean that irrational fearfulness will satisfy the new definition? " If nothing more, it is clear that the bar for allegations of family violence and abuse is now low and the standard to refute such allegations is high.

The equitable balance between fact and fiction from aggrieved litigants seems to have been weighted to one side.

The definition does not define or say what "serious" means nor what "neglect" means and we should expect matters that involve allegations of abuse to cost significantly more as expert opinion will be required to determine abuse matters. The question remains as to how serious the serious abuse has to be to get over the bar.

Its not child abuse to withhold a child from the other parent

Withholding a child from the other parent was not considered child abuse, nor was there consideration given to Paediatric Condition Falsification, where parents go to great lengths to deliberately fabricate or lie about physical injury or illness to children. Research suggests it is widely agreed that the disorder centres on the perpetrator's need for positive attention from physicians.

The Federal Government explanatory guidance says:
the definition of family violence and abuse is to reflect a contemporary understanding of what family violence and abuse is, by clearly setting out what behaviour is unacceptable, including physical and emotional abuse and the exposure of children to family violence.5 As well better target what a court can consider in relation to family violence orders as part of considering a child's best interests.

You can certainly set out what family violence and abuse is in the Act .. BUT does that mean it will have any impact and reduce in any significant way? I don't believe it will It will certainly have absolutely no meaning at all on the ground in State Police forces who administer and attend the day to day violence incidents and operate, not under the Family Law Act, but under a myriad of State legislation which is different in every State.
 
I have attached the file again for your bed-time reading.

Attachment
The Family Law Act amended June 2012

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
 
The amendments include "…serious psychological harm…" as a now included form of child abuse.

Sec SPCA you suggest that denying a child contact with the other parent and PCF are not included in the new definition.  However, I would suggest that these situations may fall within the realm of "serious psychological harm", and therefore included in the new definition.

Consider a child who is being told they have a medical condition they do not have and is taken to medical appointments unnecessarily.  Is that not going to cause the child serious psychological harm?

What about a child who is told that their other parent doesn't love them and is a bad person and can't spend time with them?  Is that not going to cause the child serious psychological harm?

I agree there would be more expert witnesses involved, but the expansion of the definitions of abuse should allow consideration of situations that previously weren't included but should have been.

In regard to the frustration about the new definitions not preventing abuse, I ask was that the purpose of the amendments? 
April said
The amendments include "…serious psychological harm…" as a now included form of child abuse.
How serious? What does serious mean? What is the threshold?
April said
Sec SPCA you suggest that denying a child contact with the other parent and PCF are not included in the new definition. However, I would suggest that these situations may fall within the realm of "serious psychological harm", and therefore included in the new definition.
The very first question is "What evidence do you have to support that allegation April?" No I don't mean it happened (contact was withheld) but what professional evidence through a psychiatrist report or a noted health psychologist would you provide so show the circumstances caused "serious" (whatever serious means) psychological harm?

The judicial officer may well say they are not a health practitioner and authoritative and compelling evidence will be required.
April said
Consider a child who is being told they have a medical condition they do not have and is taken to medical appointments unnecessarily. Is that not going to cause the child serious psychological harm?

What about a child who is told that their other parent doesn't love them and is a bad person and can't spend time with them? Is that not going to cause the child serious psychological harm?
VERY good questions indeed but I am not qualified or experienced enough to answer either. So who do you get to answer those very valid questions? If you have little money how do you pay for such reports? Who do you get to do the reports? May I respectfully ask "When did you last try to get a psychiatric appointment and then assessment and a report done on a party to a matter? Especially try to find one who does Court reports. I happened to speak to Mental Health Services the other day and the comment was that there are so many people presenting with mental health issues they are completely overwhelmed and cannot provide enough practitioners.
April said
I agree there would be more expert witnesses involved, but the expansion of the definitions of abuse should allow consideration of situations that previously weren't included but should have been.
Yes I agree that consideration might be given to situations that were not previously included… But hasn't the horse bolted so to speak? Should we be looking at the fundamental underlying issues and resolving matters before they get to a serious problem?.
April said
In regard tothe frustration about the new definitions not preventing abuse, I ask was that the purpose of the amendments?
The Federal Government response originated from, in my view, four key reports. The Australian Institute of Family Studies (AIFS), Evaluation of the 2006 family law reforms in December 2009, which indicated that the previous Act was widely supported by parents and professionals and was working well for children, including youngsters under three. Litigation rates had fallen and there is a matching increase in the use of family dispute resolution services. This was one of the largest reports ever done on family separation with 28,000 respondents.

The second report Family Courts Violence Review by Professor Richard Chisholm AM, November 2009.

The third report was the Family Law Council, Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues, December 2009.

Lastly the report from Professor Rosalind Crouchers, April 2010 NSW and Australian Law Reform Commission reports, which dealt with questions relating to family violence and the very large voluminous reports arising from that.

The explanatory memorandum and ministerial press releases (some published here in news) all spoke of reducing family violence.

The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (the Family Violence Bill) will amend the Family Law Act 1975 (Cth) to provide better protection for children and families at risk of violence and abuse. The Bill also makes several technical amendments which correct drafting and minor policy oversights and provide other efficiencies for the courts and litigants.

The Family Violence Bill responds to reports received by the Government into the 2006 family law reforms and how the family law system deals with family violence. The reports indicate that the Act fails to adequately protect children and other family members from family violence and child abuse. These reports are the Evaluation of the 2006 family law reforms by the Australian Institute of Family Studies (AIFS); Family Courts Violence Review by the Honourable Professor Richard Chisholm AM; and Improving  responses to family violence in the family law system: An advice on the intersection of family violence and family law issues by the Family Law Council.

Other research reports on family violence, shared care and infant development further provide a strong evidence base for reform. These reports are: Family Violence and Family Law in Australia: the Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006 collaboratively produced by Monash University, the University of South Australia and James Cook University; Shared Care Parenting Arrangements since the 2006 Family Law Reforms by the Social Policy Research Centre of the University of New South Wales; and Post-separation parenting arrangements and developmental outcomes for infants and children by Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wills and Caroline Long.

The safety of children is of critical importance and the Government takes the issue of addressing and responding to family violence and child abuse very seriously. The family law system must prioritise the safety of children to ensure the best interests of children are met.

The Family Violence Bill sends a clear message that family violence and child abuse are unacceptable.

These amendments address issues of significant community concern by strengthening the role of family courts, advisers and parents in preventing harm to children while continuing to support the concepts of shared parental responsibility and shared care, where this is safe for children.

The key amendments made by the Family Violence Bill will:
 prioritise the safety of children in parenting matters;
 change the definitions of abuse and family violence to better capture harmful behaviour;
 strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children;
 ensure the courts have better access to evidence of abuse and family violence by improving reporting requirements; and
 make it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.
Nothing much there that does not relate to reducing family violence. Most of it to me seems to deal with it all after the event when it is all way too late and, seemingly, the only punitive measure available to be deployed is to take the children off one parent.

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
 
Sec SPCA, clearly you have thought through these issues thoroughly!

This is my humble opinion…there needs to be a body of research upon which to draw which is relevant to the issues you raise.

For example, in asbestos compensation claims there is a scientific base of knowledge to draw on which shows that inhalation of asbestos fibres leads to fatal lung problems.

A similar knowledge base could be developed with regard to the likely psychological damage caused by poisoning the mind of a child against a loving and non-abusive parent. From that knowledge a testing measure could be developed which could be implemented by a family report writer, the results of which could be used as evidence of "serious psychological harm".

Without systematic understanding of how PCF or parental alienation affects the psychological health of a child all we may have to rely on in court is an "expert" attempting to link certain behaviours back to situations which may or may not be relevant to the development or manifestation of those behaviours.

In a nutshell what I am saying is systematic scientific knowledge is required which demonstrates the likely psychological responses typical in children who have been abused these ways. From that knowledge testing measures can be developed to detect these psychological responses in the child and therefore evidence is produced by means of scientific method, rather than the opinion of a single expert.

A long road.
I'd only add that the term serious has been defined in many cases. See Boral Resources (Qld) Pty Ltd v Pyke [1992] 2 Qd R 25; (1989) 93 ALR 89 for the leading case. Although the term has been defined back as far as 1879 from what I can see.

The term "serious" is to be defined by what the wider community would consider serious.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
April said
Consider a child who is being told they have a medical condition they do not have and is taken to medical appointments unnecessarily.  Is that not going to cause the child serious psychological harm?
 
That's precisely the case with my daughter. Her mother was determined to have her diagnose as "depressed", so she got dragged from school day after day to attend "counselling" until eventually - voila!, she had learnt enough psychobabble to convince a GP to prescribe her anti-depressants.

Do you think the school would be interested in such behaviour? If so, you'd be wrong: the school principal tells me that the school is "acting protectively" by not taking action against mum for allowing her to miss so much school she hasn't done enough to qualify for an assessment this last semester. The education department tells me this is all fine, because as the woman I spoke to told me "I see children who miss all their days of school, I don't see that you have such a big problem".

Thanks (DELETED)State High, (DELETED), and a special thanks to the ladies at "(DELETED) for ruining a child's education and adolescence through well-meaning but completely ignorant pandering to the neurosis of her mother.

Last edit: by Liberi Primoris

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