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Secretary SPCA comments on the Family Law Legislation Amendment Bill

Secretary SPCA comments on the Family Law Legislation Amendment Bill
The Secretary of the Shared Parenting Council said
The final Bill, the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 has been released to the House today with substantial changes from the exposure draft that was presented in November 2010. I have listed, in a short assessment, the main issues where there are still some problems and where we need to explore opportunities for further amendments. I have attached the Explanatory Memorandum and the Bill, as well as a copy of the Family Law Act.
The definition of abuse Subsection 4(1) (definition of abuse) is the same as the draft and essentially a, b and d should be supported as sensible amendments. However c is more problematic in that the definitive linkage to the new definition of "family violence" will likely mean we will see more use of the term "abuse" being used in a broad brush sense and therefore probably many more cases will involve abuse.

The explanatory memorandum suggests that the new definition will remove the requirement for the assault to be an offence under an enforceable law in a State or Territory. This means that those working with the Act, including courts, legal practitioners and family members will not be required to have regard to the terms of State and Territory laws when considering whether abuse has occurred. The new definition will remove uncertainty about knowing the elements of an offence and whether an offence has been committed.

What is most certain is that in my view, we will see a raft of legislative changes in the following State laws:
  •    Crimes (Domestic and Personal Violence) Act 2007 (NSW)
  •    Family Violence Protection Act 2008 (Vic)
  •    Domestic and Family Violence Protection Act 1989 (Qld)
  •    Domestic Violence and Protection Orders Act 2008 (ACT)
  •    Domestic and Family Violence Act 2007 (NT)
  •    Intervention Orders (Prevention of Abuse) Act 2009 (SA)
  •    Domestic Violence and Protection Orders Act 2008 (ACT)
This change is in line with the ALRC report issued last year at the same time as the Attorney General issued the exposure draft.


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Recommendation 74 states - State and territory family violence legislation should articulate the following common set of core purposes:
(a) to ensure or maximise the safety and protection of persons who fear or experience family violence;
(b) to prevent or reduce family violence and the exposure of children to family violence; and
(c ) to ensure that persons who use family violence are made accountable for their conduct.

Recommendation 75 State and territory family violence legislation should adopt the following alternative grounds for obtaining a protection order. That is:
(a) the person seeking protection has reasonable grounds to fear family violence; or
(b) the person he or she is seeking protection from has used family violence and is likely to do so again


We are yet to see if "reasonable grounds to fear" will remain or it will disappear as it has done in the proposed Family Law Act definition of family violence. These words and sentences are critically important in the interpretation and operation of the law. Judicial officers interpret the law and interpret the meaning not in any literal or lay sense but in a legal and precise sense.

If we look at 4AB Definition of family violence etc.

There have been substantial changes from the exposure draft.

The new definition of family violence has been extensively extended from the existing Act and from the exposure draft we saw in November. Provisions around "the first person threatening to commit suicide or self-harm , with the intention of tormenting or intimidating the second person" have been removed. This is a sensible change but the definition remains extremely problematic. The proposed change recognises that family violence can take the form of violent, threatening or OTHER behaviour that causes the family member to be fearful, physical assault, harassment, emotional manipulation, financial abuse, as well as ensuring reasonable living expenses are paid where the family member is entirely or predominately dependent on the other person for financial support.

4AB Definition of family violence etc.


15 (1) For the purposes of this Act, family violence means violent,
threatening or other behaviour by a person that coerces or controls
a member of the persons family (the family member), or causes
the family member to be fearful.

19 (2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c ) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.

5 (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

8 (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the childs family towards another member of the childs family; or
(b) seeing or hearing an assault of a member of the childs family by another member of the childs family; or
(c ) comforting or providing assistance to a member of the childs family who has been assaulted by another member of the childs family; or
(d) cleaning up a site after a member of the childs family has intentionally damaged property of another member of the childs family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the childs family by another member of the childs family.
Any reasonable" test has been removed except in relation to financial circumstances. Whether it is reasonable to withhold monies for a pack of "smokes" when there is little food available will no doubt be tested. The existing Act at least had some test and that is "that causes that family member or any other member of the persons family reasonably to fear for, or reasonably to be apprehensive about" substantially stronger than "causes the family member to be fearful"

The bar appears to have been substantially lowered in relation to a list of items that constitutes family violence. I am also not sure what etc. means in this context. As discussed above and 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 persons family that causes that family member or any other member of the persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.

The Family Law Council concluded that the definition is too narrow and does not reflect current understanding of what constitutes family violence. The AIFS Evaluation Report indicates that legal professionals consider the requirement for a person reasonably to fear for their personal well-being or safety imposes a significant evidentiary burden on people who are already vulnerable.

It is almost impossibility for children not to be exposed to the expanded list of contributing factors that make up family violence.  In some cases the children would not even understand that some of the items listed are in fact anything out of the ordinary.
There is certainly no issue with exposure to real, ongoing or sustained physical assault, and threatening behaviour but the current definition is simply too wide and will capture events common in intact families as well as separating families.

The Family Courts Violence Review recommended that the provisions relating to family violence be strengthened, so that the nature and consequences of family violence are clearly identified in the Act. It is one thing to strengthen provisions and define them more precisely. It is another to remove all evidentiary standards of evidence. The drafters seem to have gone far to far in their enthusiasm to capture all aspects of human behaviours around separating families.

The result is that the proposed definition of family violence has been substantially altered and now recognises that family violence can take the form of physical assault, harassment, emotional manipulation, financial abuse and threatening behaviour. It is almost impossibility for children not to be exposed to the expanded list of contributing factors that make up family violence. There is certainly no issue with exposure to real, ongoing or sustained physical assault, and threatening behaviour but the current definition is simply too wide and will capture many more events in intact families as well as separating families who will face further conflict through the raising of AVO's once the definition is placed into State legislations.

It is one thing to be involved in family violence and another to be exposed to family violence. The word exposed to is now capturing a very much wider definition and will most certainly result in many more situations being viewed as family violence incidents than existing.

Those who have implemented the new provisions in 4AB should have been mindful of AND considered a number of additional factors that already operate within the Family Courts environment currently:
  • The LAT (Less Adversarial Trial) Process where Judicial Officers can operate in a more Civil Law like process and inquisitorial framework.
  • The Magellan Process used by the Family Court in high conflict and child abuse cases
  • The role and use of the ICL (Independent Childrens Lawyer).
  • The use of the FCoA Form 4 in applications where family violence is occurring.
  • The exponential increase and use of ADVO in family separations prior to Family Courts applications being made.
  • The Family Law Rules 2004 and Federal Magistrates Court Rules 2001  and Practice amendments that give guidance in matters of family violence.
  • The Attorney Generals Explanatory Memorandum that accompanied the Family Law Amendment (Shared Parental responsibility) Bill 2005.
The drafters should have also been mindful of Impacts that could restrict and reduce the flexibility that Judicial Officers gained with the delivery of the 2006 FLA amendments in their ability to determine matters and test evidence.

Surely in the best interests of children that they are, as far as is possibly practical, protected from Family Violence?  

To add more specific categories, as is proposed by adopting the Victorian Legislation and effect a widening of the broader spectrum definition of Family violence in the Family Law Act FLA (1975) would surely be advantageous?
 
However, family violence is a far more complex issue, more widely impacting the Community and legal frameworks. Changes to State Acts can have consequences for family law matters, and includes also serious instances of female violence towards men, women and children. In a significant New Zealand study (Partner Violence and Mental Health Outcomes in a New Zealand Birth Cohort. DAVID M. FERGUSSON, L. JOHN HORWOOD, AND ELIZABETH M. RIDDER Christchurch School of Medicine & Health Sciences) men and women reported similar experiences of victimisation and perpetration of domestic violence. This is a critical and key study that covers a range of violence issues in much detail.

In a 2008 article  Michael Green QC comments, the incidence of maternal violence to children, both physical and emotional, is especially worrying yet attracts no media attention.  Media reports are often grossly misreport and do not show the real position in the courts.

The media have a duty of care to report accurately and the public have a right to know who are the real perpetrators and the real victims. Claims by SMH journalist Ruth Pollard (Courts put kids at risk, 25/11/08), that changes to the Family Law Act are compelling courts to hand children over to violent fathers are false and scurrilous. These claims are an insult to judges and magistrates who apply the law and deal daily with serious relationship issues.

There are precise safeguards in the Act to exclude shared parenting and joint parental responsibility in cases where there are real issues of violence, conflict or abuse. The allegation that women are being "forced" into mediation with violent ex-partners is particularly mischievous. The Act does nothing of the kind, and mediators and community agencies have screening strategies to identify cases in which mediation is inappropriate.  Reducing mothers to victim status is a favoured strategy of radical feminists opposed to men and does nothing for the protection and welfare of women and children.


I have also said that recent judgements show clearly it is a complete nonsense to suggest that the Family Law Act has in any way softened the approach of the judicial officers to cases of family violence and alleged violence. In particular I refer you to Miller & Brass [2008] FamCA 944 (30 September 2008) and Short & Trevilian (No. 2) [2008] FamCA 215 (25 March 2008).

In both judgements, reference is made to the 2006 Act, particularly with regard to the impacts of s60cc in these cases. The court acted to prevent exposure of the children to potential violence even though it was considered improbable that any violence would occur. The judgements in those cases make it crystal clear that safety and the interests of the child continue to be paramount.

We can therefore conclude from the cases mentioned where there are factors relating to Family Violence that the Family Law Courts, are in fact, already operating with safety as a paramount factor.

That in itself, is not sufficient to rule out a change of course and therefore we must explore the courts application to and dealings with family violence in more detail. We also need to look carefully at the proposed expanded definition of family violence to look at the meaning of each of the definitions separately and what they may mean in practice.

What we can also conclude from the material is that the media do not report the entire truth of the matter and in fact the Sydney Morning Herald report yesterday did not get it right (Especially around s60cc issues). This leads to public misinformation about the handling of family violence issues, leading to anxiety and misinformation around the debate . This in turn leads advocacy groups  to bring pressure to bear on State and Federal legislators.

From reading the ALRC material a reader could conclude, that because there is such a wide list of proposed amendments and in particular a number of amendments that affect the Family Law Act, that that the operation of the definition of Family Violence in the Family Law Act is not working and therefore needs amendment.

Is that really the case? This is the fundamental issue that needs to be determined to argue for or against a vastly expanding definition of Family Violence in the Family Law Act. If the existing definition, principal and operation is not working then it is entirely appropriate and reasonable to consider additional legislative changes.

If it is working and is working adequately then there would be no reason to further alter or amend the existing definition.

As already discussed family violence is a complex issue, there is some evidence violence issues are being dealt with adequately, but in State Legislation the thrust is only to continue to add further individual categories and reasons that are able to be used and dealt with individually on application for ADVO and other restraint orders in Magistrates Courts. I have said before, that simply changing the definitions on paper will not reduce violent behaviour in our communities.

The incidence of such protection orders is increasing at a phenomenal rate, 40% increase from 2002 through 2008  and forming a vastly increasing work load for local Magistrates who have little time to adequately deal with any background or look at matters in any depth or to consider the context of any application in relation to separation.

A significant number of these applications are made at the early stages of separation when emotions are running very high. One parent has often had a very significant amount of time to deal with the process, planning and execution of a separation whereas for the other parent it is a complete surprise and shock. Often feelings and emotions run high and things are said, actions are taken and events unfold that are entirely out of character.

It is at this point that one parent will commence proceedings in the Family Courts  and in many cases, through advice given, believes that advantage may be gained in a family outcome for contact and time orders where protection orders in the Magistrates court have been made. What is certain is that the making of these orders, in the main, exclude parents from a mediated outcome and are a valid reason to bypass one of the fundamental foundation stones of the 2006 amendments and that is the Family Relationship Centres.

Once such intervention or protection orders are made it is almost impossible to go back to a mediated settlement. Entrenched hostility and conflict develops, escalating at an early stage of separation when exactly the opposite interventions are required. With that backdrop of expanding State legislation, looking for more reasons to implement protection orders will alienate parents from one another and their children early, cause further tensions and deliver entranced conflict patterns. A more constructive approach from the Commission would have been to consider the background and working, processes and procedures around the issues of family violence in the community and move to recommend initiatives that would effectively de escalate conflicts during the early part of a separation to negate the need for measures and amendments within the Family Law Act.

However enough said about ADVO's, Protection orders and what might have been.

If we move on to Paragraph 60CC (3) (c ) which is a key section of the existing Act and a section we had much concern with in the exposure draft.

Existing Section 60CC at first glance, appears in the revised draft Bill to have been left intact; and relates to the "Friendly Parent" provisions  which is an area where we had fully supported in the existing Act.
60CC
Primary considerations
(2) The primary considerations are:
(a) the benefit to 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.
However it is s60CC (3) (c ) that is problematic and deserves scrutiny and revision to the existing section.
Paragraph 60CC (3) (c )

(c ) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Is a fundamental and principal of the 2006 reforms that must be preserved.

HOWEVER when we look at the existing section above with the proposed new section we immediately start to see some problems.

The new provisions are:
18 Paragraph 60CC(3)(c )
Repeal the paragraph, substitute:
(c ) the extent to which each of the childs parents has taken, or
failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;
You have to be serious…

When I read this I thought the drafter that did this work must have had a really bad day. I am sure we will never find out which drafter it was!

"failed to take, the opportunity?"

Is that the opportunity you get when one parent says you cant see the children? Or when they relocate or take them out of school to another school some distance away or when the partner implements such a hostile regime as to make it impossible to have a proper relationship with your child and perhaps even enlists the help of the State Police who are ever eager to deliver ADVO papers and service. Unfortunately for some they are not so forthcoming when it comes time to enforce contact orders, but I will leave Barry Williams to discuss that issue.

Perhaps it is the opportunity you don't get when one parent advises the school that the other parent cannot attend school activities and waves the ADVO orders or at least the application under the principals door.
It must be the opportunity you get when the parent says you can't have contact or I think you are sexually abusing the child so see you in court
Maybe they are talking about the opportunity you don't get when you can no longer have telephone contact. or see the child on Skype

The existing definition is more than adequate so why try and rewrite that key section in such an amateurish way. The existing provision is something that is working well and is completely understood by the Judiciary. The definition currently proposed is complete nonsense.

In relation to "Failed to maintain the child" Are we talking about failing to financially contribute during the ugly separation phase or are we talking about child abuse as defined and outlined?
In an additional note the Secretary of the Shared Parenting Council said
A colleague, Yuri, also brings to attention Subsection BA located after subsection 60CC(2), 2(A) which states; If there is any inconsistency in applying the considerations set out in in subsection 2, the court is to give greater weight to the consideration set out in paragraph (2)(b).  2B is "The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence".

There is currently a view that this new provision (2A) "demotes" the benefit to the child of having a meaningful relationship with both of the childs parents; to a slightly lesser weight of "The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence" I think that in the main and from both written judgements and anecdotal evidence, most hearings see to be applying that weighting anyway.

In other words even though we thought we had gained significant ground in the 2006 changes, by way of the Act raising up these TWO key provisions away from the other 60CC provisions (best interest); and that there was an expectation that they would be dealt with in an equal weighting , the fact in reality and for all practical implementations, is these have themselves been dealt with by a weighting toward the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Is (2C) a problem? My own view is that it is not a show stopper and it is a lessor problem than the new revised definition set out in Paragraph 60CC(3)(c ) which, by stealth by a slick sleight of hand, a wink and an a nudge, removes a) the benefit to the child of having a meaningful relationship with both of the childs parents… We must absolutely hold ground on that one issue.
60CH Informing court of care arrangements under child welfare laws
This is a good provision and should be supported.

Item 43 repeals existing section 117AB of the Act.

Section 117AB requires the court to make a mandatory cost order against a party to the proceedings, for some or all of the costs of another party, where the court is satisfied that the first party knowingly made a false allegation or statement in the proceedings.

The Attorney General has said that the AIFS Evaluation of the 2006 Family Law Reforms and the Family Law Council report to the Attorney-General, Improving responses to family violence in the family law system, indicate that section 117AB has operated as a disincentive to disclosing family violence. Vulnerable parents may choose to not raise legitimate safety concerns for themselves and their children due to fear they will be subject to a costs order if they cannot substantiate the claims. Section 117 of the Act will allow family courts to make cost orders in response to false statements in appropriate cases.
Brian Fisher, from the Family Law Reform Association said
The Family Court does not have criminal penalties for perjury despite false testimony having the potential to create enormous wrongs, injustice and damage.  The Courts reputation might well be damaged by the proposed provision to dispense with the existing meagre sanctions for those knowingly making false allegations or statements in proceedings. This can only give encouragement to make such allegations or statements. When added to the other proposed provisions it creates a toxic legal cocktail.
One will need to ask what recourse does the blameless party have when spurious and false allegations are proved. In a Civil matter there is recourse but it appears not so under family matters.

This provision amendment appears hastily thought through and there is little comfort in the explanatory memorandum. It seems that this will open a flood of unsubstantiated allegations and no doubt fanciful and creative affidavits will follow. These often make interesting reading and without some provisions we can expect to see many more allegations that have a potential to remove parents from the lives of their children.

There are some provisions that can be supported but there are still some amendments required to get this over the line.

Attachment
Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011


Attachment
Explanatory Memorandum - Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011


Attachment
Family Law Act



Edited

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