This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
The Family Law Amendment (Family Violence and other Measures Act) 2011(Cth) which amended the Family Law Act 1975 (Cth) (‘the FLA’) came into operation on the 7 June 2012. This legislation was largely a result of continued agitation that suggests that while family violence is a fairly common occurrence on separation, the FLA does not deal well with family violence. Research indicates that both men and women may be the victims and perpetrators of family violence but men and women experience family violence differently. The recognition of the gendered nature of violence has resulted in the Federal Government developing a National Plan to reduce violence against women and their children.
One of the most contentious issues has been the way family violence is treated in parenting disputes. While significant amendments were made to the FLA in 2006 it was argued that the issue of family violence had been marginalised. These arguments were reinforced by the legislative provisions which required the judicial officer when deciding where a child is to live or with whom a child is to spend time, to balance the need to protect adults and children from violence with a desire to encourage separated parents to maintain a meaningful relationship with their children: the shared parenting provisions. There were no specific provisions in the legislation which prioritised protection from harm over shared parenting. This resulted in substantial criticism of the legislation. Increasingly there was concern that the legislation had moved away from protecting the rights of women and children to acceding to men’s demand for increased time with their children. In response to the increased profile of family violence in the Family Courts the Family Violence: Best Practice Principles were developed which are intended to provide decision-makers with practical guidance when dealing with matters involving family violence and abuse. The Family Law Council and Family Law Section of the Law Council of Australia have also produced Best Practice Guidelines: for lawyers doing family law work. Part 9 of these guidelines deal with family violence and recognise family violence as a serious problem.
However, it was increasingly recognised that the issues relating to family violence were far more deep-rooted than practitioners’ responses to this issue. The government responded to these criticisms with a plan for an extensive evaluation of the legislative changes to be carried out by Australian Institute of Family Studies. This evaluation would cover the first three years of the operation of the 2006 reforms. The evaluation was to be broad and comprehensive but was not intended to highlight the issue of family violence. Nevertheless, this study found that 26 per cent of mothers and 17 per cent of fathers reported being physically hurt by their partners. A further 39 per cent of mothers and 36 per cent of fathers reported emotional abuse defined in terms of humiliation, belittling insults, property damage and threats of harm during the course of the relationship. Moreover, 72 per cent of mothers and 63 per cent of fathers who reported experiencing physical violence before separation reported that their children had witnessed violence or abuse. The Commonwealth government commissioned four further enquiries dealing directly with family violence:
The Family Law Council to report on improving responses to violence in the family law system by reviewing the intersection of family violence and family law issues;
Professor Richard Chisholm to consider family courts and family violence;
The Australian Law Reform Commission in association with the New South Wales Law Reform Commission to review and propose improvements for legal frameworks regarding family violence in a number of jurisdictions including family law; and
Monash University, with the University of South Australia and James Cook University, to examine the impact of family violence on decision-making and the use of Family Dispute Resolution services on separating adults and their children post separation.
What does the legislation do?
The Family Law Amendment (Family Violence and other Measures Act) 2011(Cth) is a direct response to these reports. Although not implementing all the recommendations of these reports (not all of which were unanimous), the Commonwealth Government did respond to some of the glaring issues requiring legislative intervention. In relation to family violence this legislation has made a number of changes to the FLA. The three major areas of change to the FLA are as follows.
First, it has introduced new definitions of family violence, exposure to family violence and child abuse into the FLA.
The definition of family violence has been widened to include a range of threatening behaviours including stalking, repeated derogatory taunts and intentionally causing death or injury to an animal. It has also removed the direct objective element in the former definition which required the fear or apprehension of violence to be “reasonable”. An additional definition has been introduced to cater for situations when children, although not the direct victims are exposed to family violence. This includes overhearing threats of death or personal injury and seeing or hearing an assault. The definition of abuse has also been expanded to include serious psychological harm and serious neglect. These changes are welcome but may be open to subjective opinion and value judgments. For example, what constitutes serious neglect in one situation may not necessarily be serious neglect in another.
Second, when determining the best interests of the child the court is directed to take into account “primary” and “additional” considerations. The two primary considerations are the benefit to a child of having a meaningful relationship with each of the child’s parents and the need to protect the child from harm. The legislation now adds an additional section which requires the court to give “greater weight” to the need to protect the child from harm. The legislation also specifically states that when a court is considering making a parenting order it must ensure that the order does not expose the child to “an unacceptable risk of family violence”. The combined effect of these two amendments is to prioritise the risk of harm to a child over the benefit that a child may reap through a meaningful relationship with a non-resident parent.
Third, one of the most controversial provisions in the FLA was the so-called “friendly parent” provision contained in the “additional considerations”. One of the considerations which the court was required to take into account when making a parenting order was “the willingness and ability of each of a child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent”. This section had been the subject of substantial criticism as it ignored the reality that at times parents are required to take action to protect their children from harm. Moreover, this provision discouraged parents from disclosing violence by the other parent for fear of being regarded as an “unfriendly parent” and thus potentially placing children in an unsafe environment. The “friendly parent” provision has been removed from the FLA. In its stead the court is directed to take into account how in the past each parent has fulfilled the responsibilities of parenthood. This includes participation in decision making regarding a child, spending time and communicating with a child as well as maintaining a child. As a result the court will take into account conduct such as the failure of a parent play active part in the child’s life, to pay child support or to keep in contact with a child.
The additional considerations have also been amended to direct the court when assessing a child’s best interests to have regard to any state or territory family violence order applying to a child or a member of the child’s family and to give appropriate weight to the existence of such an order when making a parenting order. This amendment is controversial given that many such orders are made by consent without admission of guilt by either party, thus diluting their evidentiary value. Furthermore, there is some belief that state family violence orders may be obtained for tactical reasons with the view to influencing the outcome of Family Court litigation. However, the wording of the amendment allows parties to adduce evidence regarding the circumstances surrounding the making of a family violence order. There is some concern that this will increase the already prohibitively high cost of Family Court litigation.
Victims of family violence will continue to be channelled through the Family Dispute Resolution Centres and encouraged to reach settlements which may expose them and their children to violence and abuse.
What does the legislation not do?
There are two main areas over which all the Reports raised concerns but which were not the direct subject of amendment.
The first area is the compulsory attendance of parties at Family Dispute Resolution Services. Following the coming into operation of the Family Law (Shared Parental Responsibility) Act 2006 (Cth), a court may not hear an application in relation to a childrens matter unless the application is accompanied by a “certificate” from a Family Dispute Resolution practitioner certifying attendance or one of the exceptions excusing parties from attendance applies. Exceptions include where there are circumstances of family violence or child abuse. However, the family dispute resolution process is the subject of substantial criticism. It is suggested that post-separation women are more economically, socially and psychologically vulnerable than men. As a result and especially in instances of family violence, there may be a significant power imbalance between the parties and women may be coerced into accepting unjust and unfair agreements.
The other problematic area is the designated pathway for courts to exercise their discretion and impose parenting arrangements on separated parents. These arrangements may include who will have parental responsibility and make decisions relating to children’s long-term future. They may also include where the children will live and with whom they will spend time. To achieve its objective of co-operative parenting the Family Law (Shared Parental Responsibility) Act 2006 (Cth) enacted a presumption which, subject to certain qualifications, including instances of violence and abuse, states “that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. The making of an order for equal shared parental responsibility creates an obligation on the court “to consider” making an order for the child to spend equal time with both parents and if not equal time “substantial and significant time” with both parents. Substantial and significant time includes weekdays, days on the weekend and holidays so that the parent may be involved in the child’s daily routine. The legislation does not create a presumption that children must spend equal time or substantial and significant time with their parents.
The presumption which the 2006 reforms created in favour of equal shared parental responsibility has created widespread misunderstanding of the operation of the law. Separating parents believe that equal shared parental responsibility means that they are entitled to equal time i.e. 50-50 shared care arrangements for their children. Richard Chisholm encapsulates the general confusion regarding the law with the following quote: “[M]any people continue to misunderstand the 2006 provisions as creating a right to equal time, or a presumption favouring equal time”.
At first glance it would seem as if the Family Law Amendment (Family Violence and other Measures Act) 2011 (Cth) has made some significant changes to the conduct of disputes regarding children. However, in reality it has tinkered around the edges without directly addressing two of the most significant issues relating to parenting disputes: victims of family violence will continue to be channelled through the Family Dispute Resolution Centres and encouraged to reach settlements which may expose them and their children to violence and abuse. Furthermore, parties will continue to negotiate parenting arrangements and embark on litigation believing that there is a presumption of shared parenting entitling each party to spend equal time with their children. This misunderstanding of the law has created unrealistic expectations regarding shared parenting arrangements which regretfully the most recent amendments have failed to address.