Family Law: system ain’t broke but much needs to be done: 3 reports

Today was a big day in family law. Today Commonwealth Attorney-General Robert McClelland released three reports into how the 2006 children’s amendments to the Family Law Act have worked in practice, including how the Family Law Act  responds to issues of violence and abuse.

The reports were by:

• The Australian Institute of Family Studies. This review was part of the process of the 2006 changes. The conclusion- generally it’s a good thing that fewer people are arguing in court, but the system has a long way to go in delaing with domestic violence cases.
• The Family Law Council – which recommends systemic changes to assist in tackling violence issues, including suggesting a power to the Family and Federal Magistrates Courts requiring the state Departments of Child Safety to be parties in those cases, whether the Departments want to or not. This report came about due to the death of Darcey Freeman who died after being thrown off Melbourne’s Westgate Bridge last year.
• Professor Richard Chisholm. The report by the joint Commonwealth/State inquiry by academic and former Family Court judge Richard Chisholm as to how the Family Law Act responds to domestic violence. He suggested that the current approach of the various children’s sections of the Family Law Act is far too complex, as we all know, and that there should be a new shopping list under s.60CC, including abolition of the friendly parent concept.

I have set out below the summaries of recommendations of each of the reports. In the next few days I will spend some more time going through and analysing each of the reports. Here goes…

The AIFS recommends:

The evaluation evidence indicates that the 2006 reforms to the family law system have had a

positive impact in some areas and have had a less positive impact in others. Overall, there is

more use of relationship services, a decline in filings in the courts in children’s cases, and some

evidence of a shift away from an automatic recourse to legal solutions in response to postseparation

relationship difficulties.

A significant proportion of separated parents are able to sort out their post-separation

arrangements with minimal engagement with the formal system. There is also evidence that

FDR [ Don’t you love jargon? Not Franklin Delano Roosevelt, but family dispute resolution] is assisting parents to work out their parenting arrangements.

A central point, however, is that many separated families are affected by issues such as family

violence, safety concerns, mental health problems and substance misuse issues, and these

families are the predominant users of the service and legal sectors. In relation to these families,

resolution of post-separation disputes presents some complex issues for the family law system

as whole, and the evaluation has identified ongoing challenges in this area. In particular,

professional practices and understandings in relation to identifying matters where FDR should

not be attempted require continuing development. This is an area where collaboration between

relationship service professionals, family law system professionals and courts needs to be

facilitated so that shared understandings about what types of matters are not suitable for FDR

can be developed and so that other options can be better facilitated.

Beyond effective screening, possible ways forward include:

■■ continued development of protocols for the sharing of information within the family

relationship service sector and between the sector and other critical areas, such as child

protection;

■■ development of protocols for cooperation between family relationship service professionals

and independent children’s lawyers;

■■ development of protocols for cooperation between family relationship service professionals

and lawyers acting as advocates for individual parents;23

■■ a considerably improved capacity in courts to solicit or provide high-quality assessments

that will assist them to make safe, timely and child-focused decisions, especially at the

interim stage; and

■■ consideration of whether (and if so how) information already gained via sometimes extensive screening procedures within the family relationship service sector can be used by

judicial officers or by those providing court assessments to assist in the process of judicial

determination.

While communication in relation to privileged and confidential disclosures made in assessment

and FDR processes raises some complex questions, investigation of how such communication

could potentially occur may be an avenue for achieving greater coordination and ensuring

expeditious handling of these matters. Currently, much relevant information may be collected

by family relationship service professionals in screening and assessment processes, but this

information is not transmissible between professionals in this sector and professionals in the

legal sector, or between other agencies and services responsible for providing assistance.

Effectively, families who move from one part of the system to the other often have to start all

over again. For families already under stress as a result of family violence, safety concerns and

other complex issues, this may delay resolution and compound disadvantages.

Effective responses to families where complex issues exist entail ensuring they have access

to appropriate services to not only resolve their parenting issues but also deal with the wider

issues affecting the family. Such responses involve identifying such concerns and assisting such

parents to use the dispute resolution mechanism that is most appropriate for their circumstances.

Effective responses should ensure that the parenting arrangements put in place for children in

families with complex issues are appropriate to the children’s needs and do not put their short or

long-term wellbeing at risk. Further examination of the needs and trajectories of families who are unsuitable for FDR would assist in identifying what measures are required to assist

these families (to some extent, LSSF W2 2009 may assist with this). A key question is the extent

to which such families then access the legal/court system and whether there are barriers or

impediments (e.g., financial or personal) to them doing so.

The evidence of poorer wellbeing for children where there are safety concerns—across the

range of parenting arrangements, but particularly acutely in shared care-time arrangements—

highlights the importance of identifying families where safety concerns are pertinent and

assisting them in making arrangements that promote the wellbeing of their children.

This evaluation has highlighted the complex and varied issues faced by separating parents and

their children and the diverse range of services required in order to ensure the best possible

outcomes for children. Ultimately, while there are many perspectives within the family law

system and, many conflicting needs, it is important to maintain the primacy of focusing on the

best interests of children and protecting all family members from harm.

Family Law Council recommends:
 
The report recommends:

_ The definition of “family violence” in the Family Law Act be widened to include

a range of threatening behaviour.

_ That the Attorney General establish an expert panel under the direction of the

Australian Institute of Family Studies to create an easy-to-understand

“common knowledge base” on the known patterns and effects of family

violence. This easily accessible information will assist to provide common and

up-to-date information to all those involved in the family relationship and

legal systems, including parents, relatives, counsellors, mediators, FRCS, legal

aid officers, lawyers and courts.

_ The Law Council of Australia and the Family Law Council co-operate to revise

the booklet “Best Practice Guidelines for Lawyers Doing Family Law Work” to

incorporate detailed information on family violence.

_ A number of reforms take place to improve co-ordination and collaboration

between the state and territory child protection agencies, and the federal

Family Law Act, including: the transportability of state family violence

injunctive orders; the establishment of a national register of family and

violence orders ; and the establishment of a network data base which records

family violence orders, and a residual family court power to require state

Child Protection Agencies to become parties to Family Law Court proceedings

about children.

_ A further report be prepared on whether FDRP should be required to provide a

report to the Family Law Courts or other bodies in some or all structure where

family violence is admitted or suspected.

_ The forms notifying the Family Law Courts about family violence be simplified.

_ Consideration be given on how to educate the Australian public about certain

widespread misunderstandings of the Family Law Act including:

o Recurrent gossip that notification of family violence may lead to a

judicial perception that the notifier is an “unfriendly parent”

o Widespread perception that each parent now has a “starting right” to

equal time (50/50) with children

o Common belief that a parent will receive both substantial time with a

child, and equal shared parental responsibility, (similar to historic

“guardianship”), despite a history of poor communication and hostility

between parents; and despite the long term health and emotional

consequences for children as casualties on such parental battlefields.

These recommendations of the Family Law Council will need to be amalgamated with

the various reports on family violence emerging in the next year.

Professor Chisholm recommends:

(The recommendations start at 2.1. There are no recommendations before that.)

Recommendation 2.1

That whatever steps are taken in relation to the future of the Family Court of Australia

and the Federal Magistrates Court, the Government should ensure that the federal

court or courts administering family law have judicial officers with an understanding

of family law and a desire to work in that field, and procedures and resources

specifically adapted to the requirements of family law, and particularly to the

requirements of cases involving issues of family violence.

Recommendation 2.2

That the family law courts conduct a thorough review of their procedures and

practices in parenting cases, especially those involving issues of family violence, and

that the Government provide the necessary resources to support such a review.

Recommendation 2.3

That the Government consider amending s 60K so that it provides that in each

parenting case the court must conduct a risk identification and assessment, rather than providing for the filing of a document that will require the courts to take particular actions.

Recommendation 2.4

That the Government consider the most appropriate ways of conducting such a risk

identification and assessment, having regard to the resources available to the courts,

and to the possibility of arranging for the assessment of risk to be conducted in part or

whole by an external agency.

Recommendation 2.5

That the Government consider amending provisions of the Act relating to the

confidentiality of information held by agencies outside the court, including dispute resolution agencies, so that information relevant to the assessment of the risks from

violence or other causes could be more readily available to the courts.

Recommendation 2.6

That the Government consider providing the family courts with the additional

resources necessary to ensure that adequate attention can be given to children’s cases

in interim proceedings, especially cases involving allegations of family violence.

PART 3 (LEGISLATION)

Recommendation 3.1

That if recommendations 3.3 and 3.4 are adopted, section 63DA be replaced by a

simpler provision, in substance directing advisers to have regard to the principles

stated in the Act about the best interests of children; and if recommendations 3.3 and

3.4 are not adopted, s 63DA be amended to emphasise the need to ensure the safety of

children and family members.

Recommendation 3.2

That s 117AB be repealed, and consideration be given to amending s 117 to make

specific reference to the giving of knowingly false evidence, for example by inserting

a new paragraph in subsection (2A) to the following effect: ‘Whether a party has

knowingly given false evidence in the proceedings’.

Recommendation 3.3

That the Government give consideration to retaining the present provisions relating to

parental responsibility (ss 61B, 61C, and 61DA), but amending the Act so that the

guidelines for determining arrangements for the care of children (s 60CC) are

independent of the provisions dealing with parental responsibility, and amending

s 61DA so that it creates a presumption in favour of each parent having “parental

responsibility”.

Recommendation 3.4

That the Government give consideration to amending s 60CC to provide, in substance,

as follows:

(1) In considering what parenting orders to make, the court must not assume that any

particular parenting arrangement is more likely than others to be in the child’s

best interests, but should seek to identify the arrangements that are most likely to

advance the child’s best interests in the circumstances of each case.

(2) In considering what parenting orders to make, the court must take into account

the following matters, so far as they are relevant:

(a) any views expressed by the child concerning the child’s relationship with

each parent and with other persons, and about any other matters that are

important to the child;

(b) the nature of the relationship of the child with each of the child’s parents,

and with other persons (including any grandparent or other relative of the

child);

(c) the benefit the child has received, and is likely to receive, from a meaningful

relationship with both of the child’s parents;

(d) the capacity and willingness of each parent or other relevant person to

provide for the child’s safety, welfare and well-being, and the extent to

which each of the child’s parents has fulfilled, or failed to fulfil, his or her

responsibilities as a parent;

(e) any likely advantages to the child if each parent regularly spends time with

the child on weekdays as well as weekends and holidays, and is involved in

the child’s daily routine and occasions and events that are of particular

significance to the child;

(f) the likely effect of any changes in the child’s circumstances, including any

separation from either parent or any other child or adult with whom the child

has been living;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and

traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) whether it would be preferable to make the order that would be least likely to

lead to the institution of further proceedings in relation to the child; and

(i) any other fact or circumstance that the court thinks is relevant.

(3) In determining the extent to which each of the child’s parents has fulfilled, or

failed to fulfil, his or her responsibilities as a parent (paragraph (d)), the court

must consider, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity to participate in making

decisions about major long-term issues in relation to the child; and to spend

time and communicate with the child;

(b) has facilitated, or failed to facilitate, the other parent in making decisions

about major long-term issues in relation to the child, and spending time and

communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4) If the child is an Aboriginal child or a Torres Strait Islander child, the court must

also take into account the child’s right to enjoy his or her Aboriginal or Torres

Strait Islander culture (including the right to enjoy that culture with other people

who share it), and the likely impact any proposed parenting order under this Part

will have on that right.

For the purpose of this subsection, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture;

(b) to have the support, opportunity and encouragement necessary to explore

the full extent of that culture, consistent with the child’s age and

developmental level and the child’s views; and

15

(c) to develop a positive appreciation of that culture.

Recommendation 3.5

That if Recommendation 3.4 is not adopted, s 60CC(3)(c) be amended to read:

(c) the capacity and willingness of each parent to provide for the developmental

needs of the child in the circumstances of each case, taking into account,

among other things, children’s need for safety and the benefits of a close and

continuing relationship with both parents.

Recommendation 3.6

That if Recommendation 3.4 is not adopted, the Government strengthen the

provisions of the Act relating to family violence, including more detail about the

nature and consequences of family violence, and that it consider in this connection

adapting some of the provisions of Victorian or other state and territory legislation

relating to family violence.

Recommendation 3.7

That the Government give consideration to revising s 60B(2).

Recommendation 3.8

That the Government undertake a technical revision of Part VII of the Family Law

Act and related provisions, with a view to clarifying and simplifying the law.

PART 4 (OTHER MATTERS)

Recommendation 4.1

That the Government consider the desirability of providing additional funding in

relation to the family law system, including funding that would support the work of

contact centres, family dispute resolution agencies, legal aid, and family consultants

in reducing the risk of family violence.

16

Recommendation 4.2

That the Government provide the necessary funding and other assistance so that the

family law courts can review the adequacy of existing policies, facilities and

arrangements for the safety of people in the courts, and address any deficiencies or

difficulties revealed by that review.

Recommendation 4.3

That the Government, the family law courts, and other agencies and bodies forming

part of the family law system consider ways in which those working in the family law

system might be better educated in relation to issues of family violence.

Recommendation 4.4

That experience and knowledge of family violence be taken into account when

considering the appointment of persons to significant positions in organisations

forming part of the family law system.

Recommendation 4.5

That in the funding and administration of legal aid, careful consideration should be

given to the serious implications of parties, and especially children, being legally

unrepresented.

Recommendation 4.6

That organisations of lawyers and bodies responsible for legal education give due

weight to the importance of including programs about issues relating to family

violence, including its effects on children.

Recommendation 4.7

That consideration be given to amending s 118 to enable the court to entertain such an

application of its own motion.

Recommendation 4.8

That the family law courts review the extent to which judicial officers in the Family

Court of Australia and the Federal Magistrates Court use and benefit from the Best

Practice Principles for use in Parenting Disputes when Family Violence or Abuse is

Alleged, and consider any measures that might lead to the Principles becoming more

influential.