1.4 A THEME FOR REFORM: DISCLOSURE, UNDERSTANDING, ACTION 49
Part 2: Practices and procedures of the federal family courts in cases with family violence issues 50
2.1 PRELIMINARY 50
2.2 THE ROLE OF THE FAMILY LAW COURTS AND THE PURPOSES OF THEIR RULES AND PROCEDURES 56
2.3 DISCUSSION AND RECOMMENDATIONS 65
Part 3: Problems and possible remedies:
The legislation 90
3.1 PRELIMINARY 90
3.2 THE ‘FRIENDLY PARENT’ PROVISION: s 60CC(3)(c) 101
3.3 OBLIGATIONS ON ADVISERS: s 63DA 104
3.4 COSTS ORDERS: s 117AB 108
3.5 RECONSIDERATION OF THE PROVISIONS RELATING TO SHARED PARENTAL RESPONSIBILITY AND THE DETERMINATION OF THE CHILD’S BEST INTERESTS 120
Part 4: Problems and possible remedies – Other matters 150 4.1 INTRODUCTION 150
4.2 APPROPRIATE SUPPORT WITHIN THE COURT SYSTEM FOR FAMILIES WHO HAVE EXPERIENCED OR ARE AT RISK OF VIOLENCE 150
4.3 THE SHARING OF INFORMATION 161
4.4 THE NEED FOR EDUCATION ON FAMILY VIOLENCE 163
4.5 APPROPRIATE LEGAL REPRESENTATION 168
4.6 OTHER MATTERS 172
Submissions and consultations 175
Extracts from the legislation 185
Practice and Procedures of the Family Court of Australia in parenting cases raising issues of family violence 207
Chapter 13, Family Law Rules 2004; Family Court of Australia, Duty of Disclosure (brochure), . 212
Practice and Procedures of the Federal Magistrates Court in parenting cases raising issues of family violence 249
Particular comments on ‘Best practice principles for use in parenting disputes when family violence of abuse is alleged’ (Family Court of Australia, 2009) 271
There are few more difficult or more important challenges for the family law system than dealing with cases where family violence is an issue. Family violence happens throughout the community, and is especially likely to be present among families that separate and resort to the family law system. More than half the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent, and violence issues often go together with other problems, for example those associated with substance abuse and mental ill-health. Violence is bad for everyone, and particularly dangerous for children, whether or not it is directed specifically at them.
These cases present the courts with truly daunting tasks: to provide a setting in which the parties feel safe and confident that they will be treated with respect; to deal with the cases with necessary efficiency but most importantly with justice and fairness; and to ensure as far as possible that arrangements made for children, whether as a result of the parties’ consent or by the court’s adjudication, are suitable for their needs, which will include being safe and having both parents contribute to their developmental needs.
This Review has required me to ‘assess the appropriateness of the legislation, practices and procedures’ that apply in these cases; and in particular to consider whether the practices and procedures of the courts encourage victims to disclose family violence and support ‘best practice’, whether appropriate support is provided for families who have experienced violence, and whether information disclosed by litigants is appropriately shared within the courts.
There has been limited time to do it – four months – but the task has been made possible through help I have received from many sources. They include the Family Court of Australia and the Federal Magistrates Court, the Attorney-General’s Department, and the many people and organisations who have contributed to the Review by making submissions or meeting with me: details are set out in Appendix 1.
Some of this Report describes the law and how it works: apart from the discussions in the body of the Report, there are details in the appendices 2, 3 and 4 about the legislation and the procedures in each of the two family law courts. I hope that these parts will contribute to a wider understanding of the family law system, as well as an understanding of the recommendations and the reasons for them.
A theme that recurred during the Review was that family violence must be disclosed, understood, and acted upon. This theme seems helpful whether we are thinking of a lawyer interviewing a client, a dispute resolution practitioner dealing with a new case, the work of a counter clerk at a family court, or of a judicial officer. The family law system, and each component in it, needs to encourage and facilitate the disclosure of family violence, ensure that it is understood, and act effectively upon that understanding. This theme underpins many of the recommendations in this Report.
The courts’ procedures (Part 2)
As the Terms of Reference suggest, there are two main areas to be considered.
The first is the practice and procedure in the two courts. At the time of writing, it is uncertain whether or in precisely what way the two courts are to be merged into one Australian family law court. Each of the two courts has a different history, and although they increasingly share resources, and apply essentially the same law, there are significant differences between the courts in the way they operate. Both courts understand the importance and difficulty of cases involving issues of violence, and there is much to be learned from the ways each court has addressed the problem.
It is not appropriate for this Review to recommend what detailed procedures should apply, both because of the limited time for the Review and because it will be appropriate for these issues to be resolved once the future of the courts is known.
The discussion in Part 2, however, reviews the present day role of the family court – which has moved a long way from the traditional limitations of the ‘adversary system’ - and attempts to identify the basic purposes of the courts’ procedures. It draws attention to some initiatives developed by the Family Court that seem to have potential benefits for the handling of cases involving issues of violence, in particular the ‘less adversarial trial’ and the ‘child responsive’ program, which deploys the services of family consultants to help parties focus on, and understand, their children’s needs: by no means an easy task in the stress of family separation and reorganisation.
Whatever the structural future of the courts is to be, it is important that children’s cases are dealt with by judicial officers and court staff who are experienced and expert in the area of family law. The discussion in Part 2 suggests that even if the more difficult and complex cases go to the superior court, or the superior tier of the one court, it is unlikely that it would be ‘best practice’ to continue as now, with each court having its own distinctive approach, rather than both courts having the same approach, which would however have the flexibility necessary to provide for the different demands of different cases.
A significant part of the discussion in Part 2 relates to a process introduced by the 2006 amendments whereby the court has particular duties to examine cases when a particular document is filed – the Notice of Abuse or Family Violence. Under the Rules of court, parties are obliged to file such a notice where allegations of violence or abuse have been made. Experience has shown that this system is not working. This Report suggests that because of this, and because issues of family violence and other risks factors are so common in parenting cases brought to the courts, it would be better to have a system of risk identification and assessment that applies to all parenting cases. This approach would reflect the best available thinking about these issues, and would reinforce a lot of measures that are already being taken by the courts to identify and deal with issues of violence as early as possible.
The legislation (Part 3)
The discussion of the legislation in Part 3 is somewhat complex, reflecting the complexity of the legislation and the difficulty in formulating legislation that both provides workable rules and guidelines for courts to apply and satisfies the desire of the legislature in recent times to state principles that will play an educational role. The discussion reviews the origins of the amendments of 2006, the original intention of the Committee from which they stemmed (the Hull Committee of 2003), and experience with the law since those important changes.
Three provisions to be amended
The first conclusion is that three particular provisions need to be amended in a way that respects their original purposes but avoids the risk that they might deter victims of violence from making appropriate disclosures. They are the ‘friendly parent’ provision, the provision directing family advisers on what information to provide, and a provision for the making of costs orders where there are knowingly false allegations or statements.
In essence, the recommendations are that the ‘friendly parent’ provision should be amended so it recognises that parents sometimes need to take action to protect children from risk; that the specific and separate costs provision (s 117AB) dealing with knowingly false allegations and statements should be replaced by a simple reference to the giving of knowingly false evidence in the provision that deals with costs (s 117); and that the information that advisers are required to provide should reflect not only the importance of parental involvement but also the importance of safety for children.
The second conclusion is that it would be useful to reconsider the set of provisions dealing with parental responsibility and the guidelines for determining what is in the child’s best interests. These recommendations are intended to retain the essential ideas of the Hull Committee in 2003, while removing difficulties and unintended consequences that appear to have occurred as a result of the way the original idea has been translated into legislation.
The Hull Committee, after careful consideration, rejected the idea that a solution to the problem would be to substitute a different arrangement, namely equal time with each parent, as a preferred model. It considered, however, that while it should of course protect children from violence and abuse, the law should do more to ensure the involvement of both parents in the majority of families. In particular, the law should help people move away from a previous tendency to assume that it was best for children to spend most of their time with one parent, usually the mother, and only alternate weekends and half the school holidays with the other parent, usually the father.
The discussion in Part 3 reviews the history of the Hull Committee’s recommendations and the way they were (after various consultations, committees, and government decisions) implemented in the amendments of 2006. It suggests that with hindsight it can be seen that some of the techniques used in those amendments have proved confusing and troublesome. In particular, many people seem to have wrongly assumed that the amendments created a presumption that children should spend equal time with each parent (except in cases of violence or abuse). This misunderstanding seems to have arisen in part because of the complexity of the 2006 amendments. For example, the presumption of equal parental responsibility has been wrongly taken to mean that there was also a presumption favouring children spending equal time with each parent. Again, the weight to be attached to particular circumstances is not now determined simply by their importance for the child in the circumstances of each case, but by whether each circumstance falls within the class of ‘primary’ consideration, or is merely an ‘additional’ consideration, a question which will often require the parties to work out whether particular events fall within the legislative definition of ‘family violence’.
Working out what is best for children is hard enough without having to get involved in such technical distinctions. The tangle of legal technicality that resulted from the 2006 amendments may well have distracted parties and those advising them from focusing on what arrangements are likely to be best for the children in the circumstances of each case. It may also have led to the very opposite of what the Hull Committee intended, namely the parties thinking about their own entitlements, rather than what is best for their children.
This Report therefore suggests amendments that will preserve the valuable insights of the Hull Committee, but remove the unnecessary complexities of the present wording and bring the focus back to what is best for the children.
The proposals in Recommendations 3.3 and 3.4 make three main changes. Firstly, they more clearly separate the notion of parental responsibility, which has to do with decision-making about the child’s life, from the question of what parenting arrangements should be made. Secondly, instead of suggesting that any particular outcome is likely to be best for children (‘one size fits all’), the proposed changes would simply require the court to consider which of the available options in each case would be best for the child. Thirdly, the proposed guidelines would continue to emphasise the importance of parental involvement and safety for children, but would remove the artificial distinction created in the present Act between ‘primary’ and ‘additional’ considerations. The court would instead be encouraged to take all matters into account, and give them the weight that is appropriate in the circumstances of each case.
These proposed changes would mean that family violence would cease to be an artificial category that has special consequences in determining what is best for the child. Under the present wording of the Act, there seems to be a common view that the court is required to order that the children spend equal or near-equal time with each parent except where there is family violence (one of the two ‘primary considerations’). While violence would of course continue to be taken into account, the focus would be on its potency and seriousness in each case, and it would be taken into account along with all other matters, not singled out as ‘primary’. For this reason, debates about the definition of family violence would cease to be of such importance.
The removal of the idea of family violence being a ‘primary’ factor (competing with the other primary factor, parental involvement) may also help the parties focus on children’s interests rather than their own entitlement, because the artificial prominence given to the two factors under the present law seems to reflect ideas about parental entitlements: it can be seen as reflecting the main arguments addressed to the parliamentary committees in the course of what has been called the ‘gender wars’, and may also reflect the idea that spending equal time with the child is the right of a parent, forfeited only if the parent has been violence or abusive. If so, the proposed change might help the parties, and the courts, engage in a calm and undistracted examination of all the matters that need to be assessed to work out what is best for each child.
This Report also proposes that if these recommendations are not adopted, and thus the Act continues to speak of two ‘primary’ considerations, the provisions on family violence would need to be strengthened. Finally, a technical review of Part VII is recommended so that the law can be clarified and simplified.
Other matters (Part 4)
Part 4 discusses a number of other matters, mainly arising in connection with support provided to families who have experienced violence, the sharing of information disclosed by litigants, and legal representation in cases with issues of family violence. Most of these issues require more extensive research and consideration, especially in relation to resources, than has been possible in this review. The discussion and recommendations deal particularly with safety at court, legal representation, and education and training.
Nothing about family violence is easy: it raises complex problems that will not be solved by simple solutions. There will no doubt be debate about the views and recommendations in this Report, and that is as it should be. However, just as a judge sometimes has to make the best decision possible on less than complete evidence, those seeking to improve the family law system typically have to make decisions where there are continuing debates, and uncertainties, about things they would ideally like to know.
The recommendations in the Report derive from the information and ideas I have been able to collect and digest during the time available, and I am grateful to all those who assisted by making submissions and in other ways.
Despite the difficulties, I leave this task with confidence that those interested in the area overwhelmingly have the interests of children and families at heart, and are prepared to tackle the issues by way of continuing dialogue in the context of what has nicely been called ‘respectful relationships’. Children need respectful relationships, and so do all of us who are interested in improving the way the family law system responds to issues of family violence. I hope that this Report will be one contribution to a careful and measured consideration of how we can better provide justice and support for the families affected by violence, especially the children. They deserve no less.