27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18


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This is a large and controversial topic, since the amendments of 2006, like those of 1995, emerged from a detailed process of parliamentary review and public discussion; and there are a number of relevant publications about the meaning and the operation of the present Act. In addition, similar issues have been the subject of vigorous debate and review in other jurisdictions. Further, there is a great deal of research, and considerable controversy, about associated issues: the connection between child development and parenting arrangements, the impact of violence on children, the desirability of overnight stays for very young children, and much else. Finally, the operation of the 2006 amendments is the subject of the evaluation by AIFS, which has not been published at the time of this Report. It is impossible in this Report to deal fully with this vast amount of material and the many complex and controversial issues, so the following discussion concentrates on what, I believe, are the central issues.


It is not possible to provide every detail of submissions on this topic, but some examples follow.

Max Wright, Senior Manager Practice Quality, Relationships Australia (Victoria)

Anecdotal evidence from our FDR practitioners indicates that, as a consequence of the 2006 amendments around (in particular) shared parental responsibility/shared care, and popular understandings thereof, practitioners have been under increased pressure to facilitate parenting plans which reflect shared care scenarios, whether or not they are in the best interests of the children. This particularly applies in high conflict cases, which, whilst they may contain elements of family violence, do not contain sufficient information to assess them as inappropriate for FDR, or to claim an exception from FDR.

Anna Cody, Director, Kingsford Legal Service

The overall impression we have from the advice and casework we have engaged in is that both men and women now believe that on separation, the law requires children to spend equal time with both parents, regardless of any evidence or allegation of domestic violence. The media has been active in sending this message and women, who have experienced domestic violence frequently make statements to the effect of “I’m scared of him: he threatens me every time I handover the kids.” And yet women believe that they are now required to continue with contact visits and do not seek legal help.

Women’s Legal Service Victoria

Parents having equal shared parental responsibility for the child has frequently been interpreted by some participants in the system as meaning that each parent has 50% rights over the child. The focus has been more on equalizing parental rights between the parties rather than safety or whether that arrangement is in the child’s best interests. Allegations of family violence are frequently lost in this tussle and focus on the rights of the parents. This is in spite of the legislation stating that the presumption is rebutted if there is child abuse and/or family violence.

Background: the 2006 amendments

The relevant provisions of the Family Law Act have been summarised above, and the significant provisions are reproduced in Appendix 2. To understand the present issues and the recommendations made in this Report, it is necessary to say something about the history of the Act and in particular the amendments of 2006.

The background to the amendments of 2006 featured continued pressure on the Government and politicians generally from groups seeking, in particular, to have the Act amended to provide for a rebuttable presumption that it is in children’s best interests for their parents to have them for equal periods. Broadly speaking, this campaign was opposed on the basis that such a presumption would be likely to expose children to a risk of violence or abuse. There were of course other arguments and issues, but these two themes loomed large in the debate.

The two decisive moments in the development of the 2006 amendments were, I believe, the publication of the Hull Committee Report in 2003 and the Government’s response to that report, especially as set out in its Response of 2005.117 The later process of drafting and parliamentary review affected the final legislation in some significant ways, but did not change the basic decisions.

Equal time: the debate

The great issue of the day was whether there should be a presumption favouring equal time.118 It would not be appropriate to re-open this debate for the purpose of this Review.119

What is important is the conclusion that the Hull Committee reached. It did recommend a presumption in favour of equal shared parental responsibility, except in cases “where there is entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse”. But the Committee did not recommend a presumption to the effect that children should spend equal time with each parent. Its reasons were set out as follows:

2.4 What has become apparent to the committee during its inquiry process is that many separated parents – mostly fathers but also mothers – feel excluded from their children’s lives following separation. What parents want is to be more involved and for many the equal time argument has become the vehicle for pursuing the connection that their children are entitled to. This has turned the debate away from the benefits for children of a positive and caring relationship with both parents to all the arguments about why equal time will or will not work.

2.5 The committee believes that the focus must be turned back to the primary issue of how to ensure both parents can, and will, remain involved in caring for their children after separation.

The resolution: no equal time presumption, but encouragement for parental involvement

Although the Hull Committee rejected the idea that there should be a presumption of equal time, it made recommendations intended to ‘ensure both parents can, and will, remain involved in caring for their children after separation’.120 This approach was accepted by the Government, and can be seen in the 2006 amendments.

In my view the rejection of the demand for equal time was clearly correct. It represents a focus on the interests of the child rather than parental rights, and is consistent with the bedrock principle that the child’s best interests must be the paramount consideration.

There were also sound reasons for the Committee to consider that steps should be taken to ensure both parents remain involved in caring for their children after separation. The Committee clearly wanted to shift the family law system away from what it saw as the problem, namely that there was effectively a presumption, or default position, to the effect that children should be with one parent, normally the mother, for most of the time, and with the other parent, normally the father, for alternative weekends and half of the school holidays (the ‘80:20’ outcome – because in this arrangement the child spends about 80% of the time with one parent, and 20% with the other).

Although the law had never prescribed the 80:20 outcome, and although good practitioners urged their clients to work out what was best for the child in each case, anecdotal evidence certainly suggests that before the amendments of 2006 there was a tendency for people to treat the 80:20 outcome as the normal result in ordinary cases. It may well be true that because of this perception, many people who reached the 80:20 arrangement by agreement, or asked the court to make orders to that effect, did so without necessarily exploring other options that might possibly have been better for the children.

Assuming this problem did exist, there is no reason to think that it derived from any prejudice against fathers. The traditional 80:20 division of time would have had obvious attractions for many parents. The parents having the child most of the time – mainly the mothers – may be unemployed or employed part-time, and have more time available for child care. The children would have stability and continuity during the week. Sharing weekends would mean that the children would spend some weekend time with the primary parent, and perhaps as much time with the other parent as work and other commitments allowed. It is true that this arrangement has disadvantages for the children – for young children, the periods between seeing the other parent may be distressingly long; some children might want to spend more time with the other parent; and the other parent may not be able to make as full a contribution to the child’s life as if the children were with the other parent during parts of the week, and if the other parent was involved in helping with homework, preparation for school and the like. But it seems likely that the 80:20 arrangement was so popular because it was often convenient for the parents and often seemed to have benefits for both the children and the parents.

The essential problem was not that it was an inherently bad arrangement, but that people may have come to adopt it as a matter of routine, or because they assumed that is what a court would have decided, rather than because it represented the optimal arrangement for their children.

The Hull Committee presented a unanimous report that was based on a remarkably detailed examination and consultation. In my view its essential conclusion, with bipartisan support, was a sound one. That essential conclusion might be summarised by saying that the best interests of the child should continue to be the ‘paramount consideration’;121 that the legislation should recognise that children need to be protected against violence and abuse; and that while there should not be a presumption of equal time, measures should be taken to ‘ensure both parents can, and will, remain involved in caring for their children after separation’. That conclusion, expressing as it does a carefully considered and bipartisan position, should remain the starting point when considering reforms.

Although those principles were in my view correct, it can be seen, especially with the benefit of three years experience with the 2006 amendments, that there were technical difficulties about the way the legislation was formulated. The way forward is therefore to address those technical difficulties, while retaining the basic approach of the Hull Committee.

Difficulties with the provisions linking equal shared parental responsibility and time

Although the decision had been made not to have a presumption of equal time, in order to shift the system away from routinely encouraging 80:20 outcomes it was decided to provide that the court should ‘consider’ whether equal time, or near equal time (‘substantial and significant’) would be a good outcome for the children. But this legislative nudge towards equal time is linked in a complex way to provisions about parental decision-making (‘responsibility’). There is a presumption that equal shared parental responsibility will benefit children; this will presumably make it more likely that the court will make an order to that effect; and when it does, or is about to do so, the court must ‘consider’ equal time, or substantial and significant time.

The origin of this link seems to have been in the Hull Committee’s recommendation for a Families Tribunal, which was to take most of the cases, leaving the more difficult cases for the Family Court. There was to be a presumption for equal shared parental responsibility in these, what we might call ‘ordinary’ cases (which were to be determined by the Tribunal), and a presumption against it in cases of violence, abuse or entrenched conflict.122 The cases where there would be equal shared parental responsibility would be cases where there was no violence, abuse or intractable conflict. The Tribunal proposal was not accepted, but the link between equal shared parental responsibility and the court’s obligation to consider equal time remains a feature of the Act.

While one can see how it came about, the legislative link between equal shared parental responsibility and the time children are to spend with each parent is somewhat unexpected, and it is not surprising that some people have difficulty with it. Further, the word ‘equal’ in the expression ‘equal shared parental responsibility’ seems to have led some people to think that the presumption is one favouring equal time, although when one studies the sections it becomes apparent that it only triggers the court’s obligation to ‘consider’ equal time. The information available in the course of this Review suggests that many people continue to misunderstand the 2006 provisions as creating a right to equal time, or a presumption favouring equal time, and it seems likely that these intricate provisions, linking a rule about decision-making with a rule about time, have contributed to that misunderstanding.

The difficulty can be seen in the statement by the Full Court, already quoted (emphasis added):123

In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.

As explained above, although the Act does contain a legal presumption in favour of equal shared parental responsibility (decision-making) it only says that the court must ‘consider’ equal time. Yet the Full Court’s sentence, to the effect that the legislature favours substantial involvement of both parents, ‘both as to parental responsibility and as to time spent with the children’ might lead the reader to think that the Act favours equal time in the same way that it favours equal decision-making, namely by creating a presumption. I do not, of course, suggest that the Full Court misunderstood the legislation. But this sentence shows the difficulty in giving a simple and clear explanation of what the 2006 amendments say, and in particular explaining the relationship between the provisions about parental responsibility and those that relate to arrangements for children.

The legislative technique adopted (to link time with decision-making) is surprising, because there is nothing to suggest that there was any real problem about parental responsibility. There is nothing in the Hull Report or later reports to suggest that the courts were unfairly making orders removing one parent’s powers to make decisions about the child. Rather, the problem was that because of the common ‘80:20’ outcomes, the parent with 20% of the child’s time, usually the father, was in practice somewhat excluded from playing a major part in the child’s life.124

This analysis suggests that the basic objectives of the Hull Committee might be achieved by provisions that more clearly addresses the need to consider the full range of options when considering what arrangements to put in place about the care of children, uncomplicated by any link with the allocation of parental responsibility.

The ‘twin pillars’: legislative emphasis on parental involvement balanced by protection from violence and abuse

Another legislative technique adopted to express the conclusions of the Hull Committee’s report and the subsequent decisions was the great prominence given to two matters, namely the benefits of parental involvement and the protection of children against violence and abuse. As Brown J put it:

The provisions in the Family Law Act 1975 (Cth) (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.125

These two themes can be seen articulated in s 60B and in s 60CC. The latter section contains a list of matters to be taken into account in determining the child’s best interests. Such a list was already in the Act, but the 2006 amendments divided it into two categories, ‘primary considerations’, and ‘additional considerations’. The ‘primary considerations’ were the benefits of parental involvement and the protection of children against violence and abuse. Taken together, they can be seen as saying, in effect: ‘children will benefit from parental involvement, but not if it exposes them to violence or abuse.’

The attractions of this formula are obvious enough. It acknowledged the two main themes of the strong submissions that featured in the public and parliamentary debates. It seemed consistent with children’s interests: children were seen as benefiting from parental involvement, but not, of course, where there was violence or abuse. Thirdly, although perhaps less obviously, it also fitted neatly with a common-sense notion of parental right or entitlement: parents are entitled to be involved in their children’s lives, unless they forfeit their rights by being abusive or violent.

While it may well be appropriate to state these themes as part of the general principles or objects of the Act, the idea of building them into the list of matters to be considered, separating them from the others by calling them ‘primary considerations’ – a legislative technique not recommended by the Hull Committee – has proved troublesome. The ‘twin pillars’ formula is not an ideal guide to children’s best interests. Good parenting can be compromised by other things in addition to violence and abuse. A parent may be disabled from responding properly to a child’s needs by reason of adverse mental health,126 or physical health. A parent may be indifferent to a child, and leave the child unattended for long periods; or seriously neglect the child. A parent may lack the necessary dedication and skills to respond to the special needs of a severely handicapped child. Parents may each be capable and willing parents in many ways, but the conflict between them might be such as to distress and damage the children. In these and many other situations, difficult issues may arise in determining what arrangements will be best for children, even though the problems might not fall within categories such as ‘violence’ or ‘abuse’.

For these reasons it may not help in the identification of the child’s best interests if the law appears to assume that there are two basic types of case, namely the ordinary case, and the case involving violence or abuse. While violence and abuse are serious matters, they are by no means the only serious problems that need to be considered in parenting cases. The formulation of such an approach, especially where it follows New Zealand in having a presumption or onus against contact by parents where there has been violence, creates a situation is which the litigation is likely to be focused on the legislative definition of violence and whether each case falls inside it or outside it, rather than on what is best for the child.

As Associate Professor Helen Rhoades has written:127

I am likewise not convinced of the protective benefits for women and children of a ‘no contact’ presumption, which would only apply in cases of proven family violence… Apart from the added stress involved for mothers and children, a no-contact presumption would reinforce the bifurcated pathway that has developed in Australian family law, in which the only candidates for an ‘exemption’ from shared parenting appear to be the victims of (serious) abuse. As Helen Reece has cautioned, we need to be careful of buying into a dichotomized ‘family violence and everything else’ view of post-separation families.128 In light of this danger, what we need is law that is more broadly concerned with supporting children’s healthy development and which recognises the wide range of risk factors, including as Susan Holmes has suggested, behaviours ‘such as obsession, stalking, depression, control, retaliation, inability to let go and attitudes of ownership of children’, and not just ‘the presence or absence of a past history of violence’.129

Of course the Family Law Act includes provisions under which these other problems can be considered, and for that reason it is possible for courts to take all circumstances into account. From that point of view, the existing provisions are workable. But any legislative focus on particular matters is likely to influence the many parents who look to the law to help them resolve their differences, and may deflect them from doing what is most important, namely working out what will be best for the children in the particular circumstances. In addition, notions of equal time, and even equal parental responsibility, may encourage parents to think about their own entitlements, rather than putting such feelings aside and focusing on what is important for the children.

The problem of parental conflict, which can be very damaging to children, provides a revealing example of the technical difficulty caused by the legislative link between parental responsibility and arrangements for the care of children. The Hull Committee had recommended that the presumption of equal shared parental responsibility would not apply in cases of entrenched conflict, as well as in cases of abuse and violence.130 This was based on evidence before the Committee about the damage that such conflict can do to children exposed to it.131

The Government ultimately rejected this recommendation, however, not because it questioned the Committee’s views about the impact of conflict on children, but because to do so would undermine the impact of the legislative formula by increasing the category of cases to which the presumption of equal shared parental responsibility would not apply.132 This decision (which seems to reflect a desire to ensure that a large number of parents have the benefit of the presumption), illustrates the difficulties of the categorical approach adopted by the legislation.

A possible approach: strengthening the family violence provisions

Some submissions pointed out that the two principles can conflict with each other, and it has been suggested that ‘many of the problematic orders made since [the 2006 amendments] have arisen because of this conflict’.133

A common theme among submissions critical of the current law was that while it deals with protection against violence and abuse as well as the value of parental involvement, it deals with the latter in more detail, and overall gives the impression that parental involvement is more important than protecting children and adults from violence and abuse. Those who took this view tended to urge that this imbalance be rectified by building into the Act a more specific and detailed treatment of family violence. A number suggested that some of the provisions of state legislation relating to family violence, in particular the Victorian legislation, should be incorporated into the Family Law Act 1975. Some were attracted by the New Zealand provisions, to the broad effect of creating a presumption against a person accused of violence having unsupervised contact with a child.

To continue Justice Brown’s metaphor of the ‘twin pillars’, on this view the parental involvement pillar is taller than the protection against violence pillar, and the appropriate correction is to build up the second to make it as tall as the first. This is not the approach recommended in this Report, as will be seen. But some correction of this kind would be appropriate if the recommendations that follow are not adopted.

The recommended approach to legislative reform

Having regard to the previous discussion, in my view it would be desirable to revise the legislation in order to retain the benefits intended by the Hull Committee, while avoiding the difficulties that have arisen with the way the Hull approach was legislatively implemented.

Such an approach would do two things. First, it would separate decisions about parental responsibility from provisions about living arrangements. Second, it would revise the formulation of the considerations relevant to determining the child’s best interests so that they are more clearly based on promoting the child’s interests rather than accommodating notions of parental rights. Instead of requiring the court to consider any particular arrangement (with the danger that it would become the de facto default position), the Act would say that there should be no default position or presumption.

This would be in the spirit of the recommendations of the Hull Committee. That Committee stressed the dangers of a ‘one-size-fits-all’ approach.134 And although it recommended that the Act should require legal and other advisers to help the parties consider equal time,135 in relation to the courts, the Hull Committee recommended that the Act should provide that they should be required ‘to first consider substantially shared parenting time when making orders in cases where each parent wishes to be the primary carer’.136 The present Act departs from that recommendation by requiring the courts to consider equal time.

A proper application of the ‘paramount consideration’ principle itself requires the court to consider equal time, as well as all other possibilities, in determining what is likely to be best for the child. The court is not limited to any particular arrangement, but must consider what arrangement will be best for the child in each particular case. The difficulty with the present formula is that the specific requirement that the court should consider one particular outcome, namely equal time (and if not, substantial and significant time) seems to have given many people the impression that there is a presumption in favour of equal time, in cases where parents have not forfeited their entitlements by reason of violence or abuse.

In my view there is likely to be a problem with any legislative provision that singles out a particular outcome for special mention, whether that outcome is equal time in non-violence cases, or – as in New Zealand – no contact in cases of violence. The experience of the 2006 amendments, and the information available to this Review, indicates that the objective of encouraging appropriate parental involvement is more likely to be achieved by provisions that emphasise the benefits to children of a close relationship with both parents, but encourage parents, advisers and courts to consider what arrangements will be best for the children in each case, rather than starting with the assumption that any particular outcome is likely to be best for any particular category of case.

The following recommendations are intended to implement this approach. They are followed by notes dealing with each recommendation in a little more detail.

Recommendations and notes

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 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;

(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

(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 be given to revising s 60B(2).

Notes on recommendations 3.3 – 3.7

Parental responsibility and parenting arrangements separated

There is no need to change the substance of the existing provisions about parental responsibility. By s 61C each parent has parental responsibility. The principles and objects in s 60B make it clear that parents should cooperate in carrying out that responsibility. The court may make orders changing the allocation of parental responsibility. There is a presumption that children will benefit if the parents have equal shared parental responsibility,137 and the court can make an order to that effect, which will have the consequence that the parties come under a legal obligation to consult each other about important decisions relating to the child.138

For the reasons given earlier it would be helpful, however, to deal separately with parental responsibility and the making of parenting orders dealing with such matters as with whom the child should live, and thus s 65DAA (which creates the link between parental responsibility and matters relating to the times the child should spend with each parent) should be repealed. It remains important that rather than suggesting that any particular outcome is likely to be best, the legislation should encourage parties and the courts to consider all options, including equal time and near-equal time, so that the best outcome can be arranged in each case. This is dealt with in the proposed amendments to s 60CC (see the notes below). Under the present recommendations, the valuable idea of spelling out what is meant by ‘substantial and significant time’, now contained in s 65DAA, has been incorporated in the proposed s 60CC(2)(e).

To make clearer the separation between parental responsibility and the arrangements for the care of children, it would be helpful if the presumption in s 61DA favouring both parents having parental responsibility were expressed as a presumption “that each parent should have parental responsibility”. That wording avoids the risk that the concept of ‘equal’ shared parental responsibility might be confused with the idea that children should spend equal time with each parent.139 It also avoids the problem that providing for ‘joint’ parental responsibility might have the unintended consequence that both parents’ consent would be needed to authorise such things as medical attention, and school enrolment. While the law should encourage parents to co-operate (as s 60B rightly does), it would be impractical if, for example, a parent could not lawfully arrange for medical treatment for the child while the other parent was overseas or otherwise unavailable.

The proposed guidelines for determining what is in the best interests of the child: s 60CC

The proposed revision of s 60CC(1) would preserve the reform made by the 2006 amendments in discouraging what seems to have been a previous pattern of routinely assuming that children’s interests would be served by spending alternate weekends and half school holidays with one parent. But instead of assuming that equal or near-equal time would normally be in the child’s interests, it emphasises the need to consider all options. The new list of factors emphasises the importance of good parenting, and of the parent-child relationship.

Views of the child

Paragraph (a), like paragraph (a) of the existing list, refers to the views of the child, the importance of which was stressed in a number of submissions.140 The proposed wording is slightly different from the existing provision. The suggested change is intended to reinforce the idea that influenced the previous change (from ‘wishes’ to ‘views’) by emphasising the importance of the court and the parties taking into account the way children experience the situation and feel about it, so that (among other things) the court might be helped to identify an outcome that will prove workable. As the earlier change from ‘wishes’ to ‘views’ suggests the focus should not be only on what outcome the children want. Understanding the views and perceptions of quite young children, for example, might be important for the adults in deciding the best arrangements for the child, even though the child’s point of view might not be based on an informed and mature consideration.

However the emphasis in the existing wording, emphasising the maturity of the child and referring to the ‘weight’ to be given to the child’s views,141 still suggests a narrow focus on what outcome the child desires. This is only one of the reasons the court may want to know about the child’s views, and this narrow focus may suggest that only the more considered views of older children are of real importance.

The proposed wording is not a major change from the present wording, but is intended to encourage those in the family law system to approach the matter of the child’s views so that the court will have a more complete understanding of the situation and a better ability to predict how different arrangements might work out. There are many valuable insights that can be gained from children without placing them in the position of expressing a choice between the parents.142 The suggested wording is intended to lead to a more holistic approach to children’s wishes, feelings and perceptions, and one that may help to protect them from the family conflict.

Nature of the child’s relationships

Paragraph (b) requires the court to consider the nature of the relationships in the particular case, avoiding making assumptions that might or might not be true in the particular case.

Benefit of parental relationship

Paragraph (c) retains the language of the 2006 amendments referring to the benefit from the parental relationship, and emphasises the importance of parents by not referring to other persons. Its language is intended to focus, more clearly than the present wording, on the benefits to the child of the actual relationship in the particular case.

Parental capacity and performance

Paragraph (d) deals with parental capacity, but avoids the over-emphasis in the present wording on one aspect, namely facilitating the child’s relationship with the other parent. That important aspect remains prominent (see proposed subsection (3)), but in addition the explicit reference to the child’s safety emphasises that where necessary it is an important part of good parenting to take appropriate measures to ensure the child’s safety.143

Paragraph (e) continues a helpful idea from the 2006 amendments, to the effect that good parenting normally involves being involved in all aspects of the child’s life, so that, for example, a parent who sees the child only on weekends may be limited to entertainment activities and may find it hard to play more than a peripheral role in the child’s life.

New paragraphs (f), (g), (h) and (i) are continued from the existing list in s 60CC.

Since the provisions about indigenous children - old paragraph (h) and sub-s (6) - apply only to a minority of cases, it seems more convenient to place them in a separate subsection. There they are at least as prominent, arguably more so.

The proposed list omits the following old paragraphs relating to family violence and family violence orders:

(j) any family violence involving the child or a member of the child’s family;

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

This requires some comment.

As to paragraph (j), although family violence is obviously relevant to any assessment of the child’s safety and well-being, and there seems no proper reason to single it out among matters that might threaten a child’s safety – they include, for example, parenting that is compromised because of such things as mental ill-health or substance abuse. In my view it is important to keep section 60CC as simple as possible, rather than seek to spell out particular reasons why a child might come to harm. In the 2006 amendments, as explained above, undue prominence is given to two matters, benefit from parental involvement and protection from violence and abuse: that emphasis, it has been argued, stemmed from the political compromise that resulted in the legislation, rather than from an analysis of children’s interests.

Old paragraph (k) raises a number of issues. The court needs to know about any current family violence order so that it does not inadvertently make a parenting order that is contrary to it. Hence it is appropriate for the Act to provide, as it does in s 60CF, that the parties have an obligation to inform the court about such orders. The court should also know about information indicating any risk of violence (or other risk) to children. This topic is covered elsewhere in this Report, especially in the discussion of risk assessment. In this connection, what 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.144 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.145

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”.146

To summarise, in my view on this topic the law should

  • create a risk assessment process;

  • make it clear that safety is an important aspect of children’s interests, so that evidence will be presented on that topic; and

  • ensure that the court knows about any current family violence order so that it does not inadvertently make a parenting order that is contrary to it;

  • avoid creating an impression that the Family Court will draw adverse inferences from the family violence order itself, rather than on evidence put before the Family Court (which may or may not coincide with the evidence that was before the court that made the family violence order).

I believe that these objectives will be achieved by the recommendations made in this Report. Accordingly, if they are adopted there will be no need for the old paragraph (k).  

Reconsideration of s 60B(2)

The provisions of s 60B(1), stating the “objects” of Part VII are in my view appropriate, giving weight to the importance of a meaningful relationship with parents, protecting children from harm, ensuring that children receive adequate and proper parenting, and parents fulfilling their duties.

However some issues arise in relation to the ‘principles’ in subsection (2). To some extent, they add little to the ‘objects’. For example the idea that children ‘have the right to know and be cared for by both their parents’ - paragraph (a) - adds little to what is already in the ‘objects’ in subsection (1). To the extent that it implies that there is some enforceable right under Australian law, paragraph (a) is rather misleading: as a matter of law it seems that parents can lawfully arrange for others to look after their children. Similarly, the language of children having a ‘right’ to spend time with parents - paragraph (b) - is difficult to reconcile with the principle that the child’s best interests are paramount, since in some sad cases it is necessary for the court to protect the child by limiting the extent to which the child is to be with the parent.147 Paragraph (c) is also awkwardly phrased. It might be inadvertently misleading, because as a matter of law parents do not jointly share their responsibilities unless the court makes an order to that effect.148 It is no doubt intended to encourage parental cooperation, but this is adequately covered by the ‘objects’ in subsection (1). Paragraph (d) adds little if anything to what is already in the ‘objects’. Paragraph (e) (children’s rights to enjoy their culture) is different: it is a separate and important matter, and might perhaps be considered for inclusion in sub-section (1) as an ‘object’.

Section 60B was not the subject of detailed submissions, and is not central to this Review. However it is an important part of the Act. It is true that a small minority of parents may be unwilling or incapable of accepting their responsibilities. At the other extreme, some parents will proceed to make sensible and appropriate arrangements without needing any resort to the law. But there would also be quite a large number of parents, especially among those who attend the community-based dispute resolutions processes, who would be looking for direction from the law in resolving their differences about parenting arrangements, and the messages sent by the Act, no doubt usually filtered through the words of legal and other advisers, are likely to be influential.149 If the clear messages of s 60B (1) are being complicated and weakened by the difficulties with the wording of subsection (2), it might be useful to consider whether subsection (2) is really necessary, or whether it could be improved, and perhaps the substance of paragraph (e) removed into subsection (1).

The definition of family violence

The present definition of family violence in the Family Law Act is:

family violence means conduct, whether actual or threatened, by a person 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 reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

Submissions about the definition of ‘family violence’ generally focused on two issues. The first was the merits and demerits of the amendment to the definition in the 2006 amendments, namely the narrowing of the definition to reasonable fear.150

The second was whether the definition should be clarified,151 or elaborated,152 so that it spells out what family violence might involve, on the model of some state and territory legislation, particularly the Family Violence Protection Act 2008 (Vic).

The National Legal Aid submission recommended that

An expanded and more prescriptive definition of family violence, similar to that contained in the Family Violence Protection Act 2008 (Vic), should be inserted into the Family Law Act 1975.

Another example is the definition proposed by the NSW Women’s Refuge Movement:

The current definitions for Family Violence and Child Abuse be removed, and that national definitions for Domestic Violence and Child Abuse be established that reflect:

  • violence and abuse are not only physical actions, but a range of other behaviours, that also impact on victims in a range of forms that may not be physically apparent and can be just as incapacitating as physical violence;

  • children witnessing violence or abuse of a parent, directly or indirectly, should also be recognised as a form trauma (sic) under Child Abuse;

  • Domestic Violence often goes unreported, and together with other forms of non-physical violence, results in a lack of undocumented evidence;

  • Domestic Violence and Child Abuse definitions that are applied at State/Territory levels.

The Women’s Legal Service Victoria submitted:

The understanding and definition of family violence should be as broad as possible to include the family dynamics and power imbalances that underlie the violence. An example could be similar to the preamble and definition of family violence in the Victorian Family Violence Protection Act 2008, which includes the context and nature of family violence.

The Bundaberg Family Relationship Centre submission said:

The definition of “family violence” contained in Section 4 of the Family Law Act 1975 appears to be very limited and does not specifically include sexual abuse, psychological abuse, financial abuse, social abuse, harassment and intimidation. This vague and unclear definition means that many clients and their lawyers do not understand what family violence means and how it affects the children.

The National Legal Aid submission said:

This definition of family violence under the Family Law Act while not as prescriptive as some definitions in state family violence legislation, for example the recent ‘Family Violence Protection Act’ 2008 (Vic), is nonetheless fairly broad. The fact that it does not emphasise physical violence over any other form is a positive thing, as much debilitating violence is psychological, emotional or financial. However, it is still the experience of lawyers that unless a litigant can show clear evidence of some physical violence, other forms of violence are often not considered in depth until final hearing, if at all. Definitions of ‘family violence’, ‘neglect’ and ‘abuse’ need to be carefully worded so that they act as a measure against which to assess allegations. A more comprehensive and specific definition, with a list of types of family violence, neglect and abuse would further assist in identifying such behaviours and in understanding the impact of such behaviours on the individuals, on their familial relationships and in the making of appropriate court orders.

Some submissions commented that child abuse can accompany family violence,153 and several made the related point that family violence can itself be seen as a form of child abuse.154 Submissions emphasised the range of forms, and the importance of the element of control.155 Some, however, thought that the existing definition recognised this:

The definition of family violence used by the Family Court of Australia is broad and captures the many different forms of violence and the diversity of family relationships in which it occurs.156

The purposes of the definition

Any discussion of a definition must consider the purpose of the definition. The significance of the definition of family violence in the Family Law Act 1975 appears to be relevant especially in relation to:

  1. s 60K;

  2. exemptions from compulsory dispute resolution;

  3. the connection between the operation of the Family Law Act 1975 and the operation of state and territory family violence laws;

  4. the objects or principles in the Act (s 43, s 60B); and

  5. the determination of the child’s best interests.

The need for precision is not the same in relation to these different areas. For the purpose of stating objects, and perhaps for the purpose of a list of matters relevant to determining the child’s best interests, it is not essential (although it may be desirable) that the term have a precise definition. On the other hand, for the first three listed purposes, the precise definition will be important, because legal consequences depend on whether behaviour falls inside or outside the definition. It is therefore helpful to consider the suitability of the definition for each of these various purposes.

In relation to s 60K

If other recommendations in this Report are accepted, this problem will not arise, because instead of a requirement to file a particular document in cases involving family violence, there will be a general process of risk assessment.

In relation to exemption from compulsory dispute resolution

It is arguable that the requirement of a reasonable fear is inappropriate for this purpose. Suppose one party had a real but unreasonable fear of the other, as, for example where the first party had a mental illness. That fear might well create a situation in which dispute resolution processes would be unworkable.

On the other hand, a definition based on a real but unreasonable fear might cause the other party (innocent of violence, in our hypothetical example of mental illness) to feel that a court-ordered exemption based on ‘family violence’ would unfairly stigmatise him or her.

Another relevant matter is that in the case of a real but unreasonable fear a dispute resolution practitioner would be likely to issue a certificate to the effect that dispute resolution would not be suitable. If so, in our example, the definition of family violence would not necessarily have the effect that the person having the fear would be forced to engage in dispute resolution.

This is a difficult issue, and I do not consider that the information available to me would justify amending the definition for this purpose. As with other matters, it would be appropriate for further consideration to be given to the question in the light of any relevant new information, for example from the AIFS evaluation.

In connection with the operation of state and territory family violence laws

The interaction between the Family Law Act and state and territory family violence laws is a complex topic that is outside the Terms of Reference for this Review.

In connection with objects or principles in the Act (s 43, s 60B)

As mentioned earlier, it is not critical that the definition be precise for these purposes. There is perhaps a stronger argument for the present definition in this context, however. It is appropriate for the principles to single out the most serious behaviour, and there seems no good reason to include situations in which a person has unreasonable fears.

In connection with the determination of the child’s best interests

There has been no suggestion that the list of matters relevant to determining the child’s best interests should be limited. Thus any reference to family violence in the list of relevant matters does not need to be precise: behaviour that fell outside the definition could also be taken into account, if nowhere else, under the provision referring to ‘any other fact or circumstance that the court thinks is relevant’.

A greater need for precision arises from the distinction between the ‘primary’ and ‘additional’ considerations, which includes family violence as ‘primary’. However if the recommendations of this Review are accepted this distinction will disappear.

Does the concept of ‘reasonable’ fear work in justice?

Some advocates for victims of violence have argued that the impact of the ‘reasonable fear’ requirement is unfair. It is often pointed out that behaviour may be frightening in ways that an outsider might not recognise. The example often given is where a violent partner uses a particular gesture which the victim knows from prior experience is a threat of a beating. An outsider not knowing the violent history or the significance of the gesture, might wrongly think that the other party could not reasonably be fearful.

In my view, however, the correct interpretation of the requirement of reasonableness would take the context into account, and ask whether a person in the victim’s position, having experienced the history of violence and knowing the meaning of the gesture, would have a reasonable fear. The answer, in our example, would be yes.

Another criticism of the inclusion was made by the Domestic Violence Resource Centre (Victoria):

The word “reasonably” in this definition is problematic. Given the prevalence of community attitudes which blame the victim, and the lack of understanding of the reasons women may stay with violent men, the average person in the community may have a different idea of whether a woman’s fear is “reasonable”. This test places an additional burden on the woman alleging violence to provide documentary proof or third party evidence of that violence to the Court.157

It is true that in such cases it would be necessary for the victim to give evidence of the context, so that the decision-maker would understand the basis of the fear. This is true of all situations in which the fear is reasonable because of the overall history and situation, rather than because of some obviously dangerous incident or threat of immediate harm. A problem of lack of understanding of the reasons women stay with violent men would remain a problem even if the word ‘reasonable’ were removed, and that problem should be reduced if, as recommended, there is to be increased training and education about family violence.

In my view, the inclusion of the concept of reasonableness has merit, and the question is whether it has in fact been interpreted in ways that is unfair to victims. The information available to the Review does not indicate that the definition has in fact malfunctioned in that way. Accordingly, it would not be appropriate to recommend the removal of the requirement. Again, however, further consideration should be given to this issue if more relevant information comes to light about the operation of the definition in practice.

Should the definition include a more detailed account of the nature of family violence?

As already mentioned, a number of submissions have urged that the Family Law Act 1975 should define family violence along the more elaborate lines of some state legislation. There is force in the argument that doing so would help educate people in the family law system understand the nuances and complexities of the topic.

The difficulty with this approach is that in contrast with the state and territory violence legislation, the Family Law Act 1975 is not an act about violence. Family law is an area where family violence is frequently an issue. But it is not obvious why the law should spell out great detail about family violence, and not about other topics relevant to family law and children, such as child development theory, good parenting, or the nature of mental illness. Consistently with this view, the state and territory child protection legislation,158 while dealing explicitly with various kinds of harm from which children need protection, does not contain definitions of family violence or domestic violence.

The argument for a detailed legislative definition of family violence arises, perhaps, because of the central importance given to family violence in some of the provisions introduced in 2006. As mentioned earlier, it is possible to see children’s law as dominated by the ‘twin pillars’ of parental involvement and protection from violence. In that context, it can be argued that since the Act spells out some desirable features of parental involvement, a proper balance requires that is should include equivalent detail about family violence. One can see the value, for example, in a definition that included words such as these, from the Victorian Act:

the Parliament also recognises the following features of family violence… that children who are exposed to the effects of family violence are particularly vulnerable and exposure to family violence may have a serious impact on children's current and future physical, psychological and emotional wellbeing…159

If the recommendations in this Report are accepted, the Family Law Act would emphasise the importance of all matters relevant to children’s interests, and there would be no ‘twin pillars’. In that different legislative environment, the argument for spelling out the nature of family violence would lose much of its force. In relation to family violence as well as many other matters relevant to children, the educational task would be linked to such matters as training and education for family law practitioners, and perhaps for litigants and the public. Amending the legislation to spell out the ingredients of various matters relevant to children’s interests would be an unrealistic and potentially unending exercise.

If, however, the provisions in Part VII are not to be changed, so that the law continues to feature parental involvement competing with protection from violence, there would indeed be a good case, in my opinion, for the provisions relating to family violence to be more extensive, and the state and territory domestic violence laws might provide useful models: see Recommendation 3.6.

The clarification and simplification of the Family Law Act

In my view, especially having regard to the information received during this Review, there is a strong case for the Family Law Act 1975, especially the provisions relating to children in Part VII, to be clarified and simplified. I believe it is widely accepted in the family law community that the present provisions, which have been amended on numerous occasions, and virtually always by adding new material, are now poorly organised, repetitious, and unnecessarily complex. It is important that the law relating to children be readily understood, especially since it is intended to guide non-lawyers as well as lawyers (for example in the counselling and dispute resolution sectors) and since many litigants are unrepresented. It should be possible to have a clearer numbering system, and a structure that makes the ideas easier to follow – at present, for example, provisions about the care of children are interrupted by substantial body of provisions that deal with child maintenance, and these provisions should be relocated elsewhere in the Act. A thorough technical revision of Part VII and associated provisions could make the intention of Parliament much clearer, and help to achieve its objects. Such a review would not be intended to re-open issues of policy. While the clarification and simplification of the law without changing the underlying policies would require some care, in my view it is both feasible and desirable.

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.

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