Family Violence Bill
Monday, May 28, 2012
I recently delivered a seminar for Australia’s CEO Challenge about the Family Violence Bill amendments to the Family Law Act.
[6]At [26]-[28]
Since 1985, I have helped thousands of clients with their domestic violence issues.
Here is my paper:
Family Violence Bill 2011
By Stephen Page
Australia’s CEO Challenge
14 May, 2012
Family Law Act Amendments
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 received royal assent on 7 December 2011. The Bill only applies to proceedings commenced on or after the commencement date, in this respect 7 June, 2012. Certain portions of that Act commenced on 7 December 2011, most importantly as to who is able to witness affidavits in the Family Court, with the insertion of a new section 98AB of the Family Law Act [and I note the previous rules on swearing affidavits in the Federal Magistrates Court still apply in that court – under section 186 of the Evidence Act 1995], other portions commenced on 4 January 2012 [amendments to the Bankruptcy Act 1966 and related amendments to the Family Law Act], but the family violence provisions do not commence until 7 June 2012.
There are some significant changes with which we must all be familiar.
The explanatory memorandum says, relevantly:
“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.”
Definition of abuse
The definition of “abuse” will change. It will be:
“ ‘Abuse’, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, or exposed to, family violence; or
(d) serious neglect of the child.”[2]
Comment:
• There was a change to the assault definition in (a) so that no longer does the assault need to occur “which is an offence under a law, written or unwritten, enforced in a State or Territory in which the act constituting the assault occurs” and can therefore occur outside Australia.
• There is no change to paragraph (b).
• Paragraph (c) is new and there is are new definitions of “exposed to” and “family violence”.
• Paragraph (d) is new.
• The much wider definition of “abuse” to include the child suffering serious psychological harm or serious neglect has significant implications in practice including mandatory notifications which I will refer to below.
The explanatory memorandum states:
“As with the existing definition of ‘abuse’, proposed paragraph (a) provides that an assault, including a sexual assault, amounts to abuse. However, 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…
The meaning of neglect is not defined and therefore takes its ordinary meaning. Neglect encompasses a range of acts of omission including failure to provide adequate food, shelter, clothing, supervision, hygiene or medical attention.”
Definition of “member of family”
This is repealed in section 4(1) and altered in section 4(1AB), and a similar alteration at the beginning of section 4(1AB).
The explanatory memorandum states:
“Item 4 repeals the existing definition of ‘member of the family’ in subsection 4(1) and inserts a new definition which refers the reader to revised subsection 4(1AB). This amendment moves the description of the purposes for which the definition applies to the substantive definition.”
Definition of “family violence”
The current definition of “family violence” in section 4(1) is to be repealed. It provides:
“ ‘Family violence’ means conduct, whether actual or threatened, by a person towards, or towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or is reasonably apprehensive about, his or her personal wellbeing and safety in particular circumstances if a reasonable person in those circumstances or fearful, or be apprehensive about, his or her personal wellbeing or safety.”
There is to be a new definition in section 4AB.
The definition is significantly wider and removes the need for reasonableness that was criticised about the definition in section 4(1). The section set out below sets out examples of family violence but significantly there are these:
• Repeated derogatory taunts;
• Unreasonably denying the family member their financial autonomy that he or she would otherwise have had;
• Unreasonably withholding financial support needed to meet the reasonable living expenses of a 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;
• Preventing the family member from making or keeping connections with his or her family, friends or culture.
It is reasonable to assume in light of this much wider definition that there will be significantly more notices in Form 4 –Family Violence or Risk of Family Violence than have been filed to date.
The definition in section 4AB provides:
“(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 person’s family (the family member ), or causes the family member to be fearful.
(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 member’s family, of his or her liberty.
(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.
(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 child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”
The explanatory memorandum states:
“The examples recognise the wider range of behaviour experienced by victims of family violence. The inclusion of examples will not exclude any behaviour that is within the general characterisation set out in subsection 4AB(1). For example, threats of suicide and self-harm are not mentioned in the definition or examples of ‘family violence’, but will be captured by the definition where the threat is intended to coerce, control or cause a family member to be fearful.”
Significantly “exposed” to family violence is defined in the new section 4AB(3):
“If the child sees or hears family violence or otherwise experiences the effects of family violence.”
As long ago as 1994[3] it was clear that the Family Court recognised that there could be an impact on children from family violence even when they did not see or hear it. The definition makes plain that direct exposure is not required. As you will have seen above, there is a wide list of examples of when the child might be exposed to family violence as set out in section 4AB(4).
The explanatory memorandum states:
“This reflects current social science and approaches to child protection, which indicate that exposure to violence threatens a child’s physical, emotional, psychological, social, education and behavioural wellbeing…
The examples clarify that there does not have to be intent for a child to hear, witness or otherwise be exposed to family violence.”
Goodbye to Families, Marriage and Separation
Section 12G, which requires us to give this brochure to clients or the other party, will be repealed as of 7 June. This will inevitably mean that some forms will change.
Alteration of the objects of part 7
Probably the most significant amendment to the Act is also the shortest. For the first time, the courts will be required, as will we as practitioners, to take an explicit human rights perspective when dealing with parenting matters. An additional object has been added pursuant to section 60B:
“To give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.”
The convention may be found on Austlii[4].
It might appear that the Convention has been incorporated into municipal law. Contrast this to the approach by Mason CJ and Deane J in Teoh’s case (1995)[5]:
“But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.
28. Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.[6]” (emphasis added)
Although Teoh’s case has been applied[7], Parliament is now saying explicitly that the Convention should be given effect. However, the explanatory memorandum states that the Convention has not been incorporated as municipal law:
“The purpose of this object is to confirm, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Act, to the extent its language permits, consistently with Australia’s obligations under the Convention. The Convention may be considered as an interpretive aid to Part VII of the Act. To the extent that the Act departs from the Convention, the Act would prevail. This provision is not equivalent to incorporating the Convention into domestic law.
24. Australia ratified the Convention in 1990 and, in doing so, committed to protecting and ensuring children’s rights. The Convention contains the full range of human rights – civil, cultural, economic, political and social rights. These rights can be broadly grouped as protection rights, participation rights and survival and development rights. One of the main principles on which the Convention is based is the obligation to have regard to the best interests of the child as a primary consideration in decision-making. Part VII of the Act is based on this same principle; although the best interests of the child are elevated to ‘paramount’ status in several provisions. The reference to the Convention in section 60B does not adversely affect these provisions in Part VII or dilute the meaning of ‘paramount consideration’. Nothing in the Convention prevents Australia enacting stronger protections for the rights of the child than the Convention itself prescribes.”(emphasis added)
Significant portions of the Convention are these:
• Portion of the recital.
In the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance.
• Convinced that the family, as a fundamental group of society in the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
• Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
• Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.
• Bearing in mind that, as indicated in the Declaration of Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.
• Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration.
• Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.
• Article 1. For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is obtained earlier.
• Article 2 States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
• Article 2 paragraph 2 States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
[I note that the child must be protected against all forms of discrimination because of, for example, the religious beliefs of one of the child’s parents. It may well be that the court has to take into account, to ensure that there is compliance with the convention, the religious beliefs of bothof the parents, including if one parent does not have religious beliefs.]
• Article 3 point 1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
• Article 3 point 2 States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
• Article 3 point 3 States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, and the number and suitability of their staff, as well as competence at provision.
• Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
• Article 6 point 2 States Parties shall ensure to the maximum extent possible the survival and development of the child.
• Article 7 point 1 The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
• Article 8 point 1 States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
• Article 8 point 2 Where a child is illegally deprived of some or all of the elements of his or her identity, the parties shall provide appropriate assistance for protection, with a view to speedily re-establish his or her identity.
• Article 9 point 1 States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
• Article 9 point 2 In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given are[sic.] opportunity to participate in the proceedings and make their views known.
• Article 9 point 3 Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
• Article 10 point 1 In accordance with the obligation of states parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a state party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
• Article 10 point 2 A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contact with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention.
• Article 11 point 1 States Parties shall take measures to combat the illicit transfer and non return of children abroad.
• Article 12 point 1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
• Article 12 point 2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
• Article 14 point 1 States Parties shall respect the right of the child to freedom of thought, conscience and religion.
• Article 14 point 2 States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
• Article 14 point 3 Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
• Article 16 No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
• Article 16 point 2 The child has the right to the protection of the law against such interference or attacks.
• Article 18 point 1 States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
• Article 18 point 2 For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of the child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
• Article 19 point 1 States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
• Article 19 point 2 Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
• Article 20 point 1 A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
• Article 20 point 2 States Parties shall in accordance with their national laws ensure alternative care for such a child.
• Article 20 point 3 Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or of necessary placement in suitable institutions for the care of the child. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
• Article 23 point 1 States Parties recognise that a mentally or physically disabled child shall enjoy a full and decent life, in conditions which ensure dignity, promotes self-reliance and facilitate the child’s active participation in the community.
• Article 24 [in part] States Parties shall ensure full implementation of [the right of the child to enjoyment of the highest attainable standard of health and of facilities for the treatment of illness and rehabilitation of health] and, in particular, shall take appropriate measures: ….(e) to ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast feeding, hygiene and environmental sanitation and the prevention of accidents.
• Article 24 point 3 States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
• Article 27 point 1 States Parties recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
• Article 30 In those states in which ethnic, religious or linguistic minorities of persons of indigenous origin exist, a child belonging to such minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
• Article 31 point 1 States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
• Article 31 point 2 States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for the cultural, artistic, recreational and leisure activity.
• Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
• Article 34 [in part] States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.
• Article 35 States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of trafficking children for any purpose or in any form.
• Article 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.
• Article 37 States Parties shall ensure that:
(a) no child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment …
• Article 39 States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self respect and dignity of the child.
• Article 41 Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:
(a) the law of the State Party; or
(b) international law enforced for that State.
• Article 54 The original or the present Convention, in which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary General of the United Nations.
Section 60CC changes
The most significant change is that to the primary considerations, with the insertion of a new subsection (2A):
“(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
A reminder: this is what subsection (2) provides:
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s 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.”
The friendly parent provisions in the current (3)(c), (4) and (4A)are removed. This is the current (3)(c):
“(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”.
This is the new (3)(c) and (ca):
“(c) the extent to which each of the child’s 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 child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.”
Changes to the friendly parent provisions come after the criticisms of Professor Chisholm[8]:
“On the material available, it seems likely that the friendly parent provision, s 60CC(3)(c),while it might have had a beneficial effect in many situations, has had the undesirable consequence in some cases of discouraging some parents affected by violence from disclosing that violence to the family court. It is appropriate, therefore, to consider whether some amendment would remove this undesirable consequence while retaining the value of the provision in encouraging parents in ordinary circumstances to facilitate the child’s relationship with the other parent.
If the legislation seeks to spell out what is good parenting, it should do so in a way that is appropriate for all the cases that come to the family courts. If the legislation is to state the general desirability of facilitating children’s relationship with the other parent, it should be done in such a way that it also recognises that there are circumstances in which parents need to take action to protect their children, and in some cases this means making serious allegations against the other parent. It is important in these cases that the understandable desire to emphasise the importance of parents supporting each other should not inadvertently lead to provisions that deter or discourage the parent from taking such protective action where this is necessary to protect the children.”
S.60CC(3)(k) as to family violence orders is repealed, to be replaced with:
“(k) if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(iv) any other relevant matter.”
Professor Chisholm said about the current s.60CC(3)(k)[9]:
“(W)hat is important is the evidence or information relevant to the risk, rather than whether or not a different court has made a family violence order, or what evidence was before the court when it did make the family violence order.
The old paragraph (k), in my view, does not deal appropriately with this matter. By including family violence orders in this list of matters relevant to the assessment of children’s interests, it might be taken as suggesting that the order itself is a factor that should be taken into account. It then partly retreats from that suggestion by excluding interim and non-contested orders. The rationale is, obviously, that it may be wrong to infer from the making of such orders that there is a risk of violence. But is the implication that the court should infer that there is a risk of violence from the making of final and contested orders?
I doubt if that was the intention, and in my view the legislation should not give the impression that the court will infer from the order itself that a child is at risk. Such an impression, whether or not it reflects what the court will actually do, might well encourage people to seek family violence orders in order to gain some advantage in family court cases.
In my view the law should do everything possible to enable the court to know about current family violence orders, so it can avoid making orders that inadvertently clash with them. Otherwise, what is important is that the court should learn about the factual circumstances that might suggest a risk to the child or other person, regardless of what was the basis of a previous family violence order. As one legal submission pointed out, ‘It is the underlying allegations that are far more important to the Court in determining the case than the existence or otherwise of an order’.”
There is a new s.60CH requiring disclosure of actions taken by child protection services, such as the Department of Communities:
“60CH Informing court of care arrangements under child welfare laws
(1) If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.
(2) If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.
(3) Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).
60CI Informing court of notifications to, and investigations by, prescribed State or Territory agencies
(1) If:
(a) a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:
(i) a notification or report (however described) to a prescribed State or Territory agency; or
(ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and
(b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;
that party must inform the court of the matter.
(2) If:
(a) a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:
(i) a notification or report (however described) to a prescribed State or Territory agency; or
(ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and
(b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;
that person may inform the court of the matter.
(3) Failure to inform the court of the matter does not affect the validity of any order made by the court.
(4) In this section:
“prescribed State or Territory agency” means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.”
There is a new duty imposed on us in advising clients in addition to that under s.63DA:
“60D Adviser’s obligations in relation to best interests of the child
(1) If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:
(a) inform the person that the person should regard the best interests of the child as the paramount consideration; and
(b) encourage the person to act on the basis that the child’s best interests are best met:
(i) by the child having a meaningful relationship with both of the child’s parents; and
(ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(iii) in applying the considerations set out in subparagraphs (i) and (ii)–by giving greater weight to the consideration set out in subparagraph (ii).
(2) In this section:
“adviser” means a person who is:
(a) a legal practitioner; or
(b) a family counsellor; or
(c) a family dispute resolution practitioner; or
(d) a family consultant.”
This addition answers the criticism of Professor Chisholm, who stated[10]:
“In my view the present wording of s 63DA is inconsistent with one of the two major themes of the legislation. It effectively invites the professional to ignore issues of family violence and safety, and focus only on the benefits of parental involvement. By doing so it seems likely to have exposed people to increased risks of violence, by contributing to the impression that the family law system is more interested in encouraging parents to be involved than in respecting the safety of children and adults.”
Section 65DAA has been amended, by the deletion of this note in (5), which deals with reasonable practicality:
“Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).”
Obligations to notify the Department
Currently a party alleging abuse or risk of abuse must file and serve a form 4, pursuant to s.67Z. This obligation has been extended to independent children’s lawyers, because the term “party” has been substituted with “interested person” which is defined as:
“(a) a party to the proceedings; or
(b) an independent children’s lawyer who represents the interests of a child in the proceedings; or
(c) any other person prescribed by the regulations for the purposes of this paragraph.”
Furthermore, the mandatory reporting regime imposed on court officials and independent children’s lawyers in cases of abuse under s.67ZA(2) must be complied with, unless it is known that a prior notification has taken place. Subsections (2) to (4) will now read:
“(2) If the person has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.
(3) If the person has reasonable grounds for suspecting that a child:
(a) has been ill treated, or is at risk of being ill treated; or
(b) has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child;
the person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.
Note: The obligation under subsection (2) to notify a prescribed child welfare authority of a suspicion that a child has been abused or is at risk of being abused must be complied with, regardless of whether this subsection also applies to the same situation.
(4) The person need not notify a prescribed child welfare authority of his or her suspicion that a child has been abused, or is at risk of being abused, if the person knows that the authority has previously been notified about the abuse or risk under subsection (2) or subsection 67Z(3), but the person may notify the authority of his or her suspicion.”
If a party or an independent children’s lawyer allegesthat there has been family violence or risk of family violence, then the form 4 must be filed by that person:
“67ZBA Where interested person makes allegation of family violence
(1) This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:
(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.
(2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b).
(3) If the alleged family violence (or risk of family violence) is abuse of a child (or a risk of abuse of a child):
(a) the interested person making the allegation must either file and serve a notice under subsection (2) of this section or under subsection 67Z(2) (but does not have to file and serve a notice under both those subsections); and
(b) if the notice is filed under subsection (2) of this section, the Registry Manager must deal with the notice as if it had been filed under subsection 67Z(2).
Note: If an allegation of abuse of a child (or a risk of abuse of a child) relates to a person who is not a party to the proceedings, the notice must be filed in the court and served on the person in accordance with subsection 67Z(2).
(4) In this section:
“interested person” in proceedings for an order under this Part in relation to a child, means:
(a) a party to the proceedings; or
(b) an independent children’s lawyer who represents the interests of the child in the proceedings; or
(c) any other person prescribed by the regulations for the purposes of this paragraph.
“prescribed form” means the form prescribed by the applicable Rules of Court.
“Registry Manager” has the same meaning as in section 67Z.”
Section 117AB is repealed.
This provision requires a court to make a costs order against a party who has made a wilfully false statement or allegation in the proceedings. Against the urgings of the Law Council of Australia, which considered that it was unnecessary, the section was added as a result of lobbying from men’s rights groups, who asserted that women often made false allegations of domestic violence and sexual abuse.
Women’s groups asserted that the section would be used to intimidate women from raising issues of domestic violence or sexual abuse, in fear of possibly being made to pay costs. In my view the repeal is consistent with ensuring that domestic violence and abuse allegations can be properly dealt with by the court, so that a party is not intimidated from raising issues in fear of having an adverse costs orders made against them.
Stephen Page
Harrington Family Lawyers
12 March 2012
[1]Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an accredited family law specialist and has had a long involvement with domestic violence issues. He was the Queensland Law Society representative during consultation sessions with the community as to the draft Domestic and Family Violence Protection Bill in 2011.
[2]S.4
[3]JG and BG (1994) FLC 92-515
[5]Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353; (1995) 69 ALJR 423; (1995) EOC 92-696 (extract); (1995) 183 CLR 273
[6]At [26]-[28]
[7]See for example Anstis & Anstis (2000) FLC 93-013
[8]Chisholm, R., Family Courts Violence Review, 2009, p.109
[9]At p. 139
[10]At pp107-108
