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

Appendix 5: Particular comments on ‘Best practice principles for use in parenting disputes when family violence of abuse is alleged’ (Family Court of Australia, 2009)

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Appendix 5:
Particular comments on ‘Best practice principles for use in parenting disputes when family violence of abuse is alleged’ (Family Court of Australia, 2009)

Preamble and ‘Key legislative provisions’

In my view the document’s authorship should be stated. It might also be desirable to indicate, if it is the case, that the document was prepared as a result of some committee’s work or some person’s particular effort. Since (as I understand it) the document has no legal binding force, its authorship and history may assist readers to understand its likely value for them.

The first paragraph of the Preamble indicates that the Principles apply only in cases where a Notice alleging violence etc has been filed, but this should obviously be changed, because we now know that such notices are often not filed in cases involving family violence. It seems better to say that the Principles apply to any case in which there are allegations that there has been family violence, or that there is a risk of family violence.

Footnote 2 could usefully spell out the other jurisdictions referred to. Again, it might add to the value of this document if its readers know that similar documents are used in a number of family law jurisdictions.

The preamble refers to “decision makers”. It is not entirely clear, I think, whether this refers to judicial officers only - and if so to which judicial officers - or to everybody in the court who has to make some kind of decision. Assuming that it is intended for judicial officers only, this could be stated. Indeed it might be desirable to spell out specifically those to whom it applies namely, I assume, judges, judicial registrars and registrars.

The word “devastating” in the second paragraph seems too strong. Presumably not every act of family violence has devastating consequences. It might be better to say something to the effect that family violence can often be devastating.

In the list of matters mentioned in the second paragraph, I would put the legislation in the first place.

In the section “key legislative provisions” I suggest that there be no particular focus on amendments of 2006. Instead, the legislation should be read as a whole. Thus while the reference to sections 60B is appropriate, there is no particular need to say that it has been amended to insert a new object.

Headings and structure of the document

Reviewing the main headings, I suggest that they should be rephrased to focus on particular situations. This is true of only some of the existing headings.

For example Heading B refers to the situation of making orders directing the preparation of a family report or appointing a court expert. By contrast, Heading A does not seem to refer to any particular situation. The substance of the material under heading A, however, indicates that it deals with initial steps in proceeding. This could be indicated in the heading itself.

The structure of the material under heading A could perhaps be improved. The first subheading seems to indicate that it will deal with a number of statutory provisions which impose specific obligations on the court. However this is true only of some of the sections mentioned. It would be sensible to have a separate section which indicated the specific requirements of the Act and then a second section spelling out a list of matters that should be considered. However the language used could be more appropriate.

The checklist on pages 2-4

The material following the second subheading on page 2 (‘In every application the decision maker may’) is in my view a very helpful checklist of matters to be considered and the heading should indicate this ( eg ‘Check list of matters often requiring consideration’) should be in such terms. I would avoid Roman numbering.

Paragraph (vii) seems to repeat paragraph (ii) in the first subheading. Similarly, paragraph (viii) repeats paragraph (x) in the first section.

As to paragraph (xi), the reader may not necessarily know what is referred to by ‘safety plan’ and this term could be explained. I do not think it is helpful to repeat section 60B in this connection.

Paragraph (xii) could usefully include words indicating that this applies only to children’s matters.

In paragraph (xiii), in my view, the word ‘obtain’ should be replaced by the words “apply for” since of course a party cannot of themselves obtain such a certificate: it must be granted by the court. More substantially, I am a little concerned that this paragraph might be read as indicating that the issue of a certificate under section 128 is a matter of course. It is, however, a judicial decision and questions of bias might possibly be raised if a judicial officer invited a party to apply for a certificate. I suggest that the wording of this paragraph be reconsidered.

Para (xxi) should be put into the active voice so that the decision maker thinks about who is required to make this happen. For example it could say ‘whether one or more parties should be directed to make the child available for a psychological or psychiatric evaluation’.

Matters under Heading B (pages 5-6)

The first paragraph should be put into the active voice so that it specifies who it is that should provide the material to the family consultant of court expert.

Paragraph (iii) would be more accurate if it read “…appropriate for the parent or other parties to have equal shared parental responsibility”. The question whether the presumption applies is different from the ultimate decision whether there should be equal shared parental responsibility.

Paragraph (iv) refers only to the benefits from time with the parent. However in some circumstances, time with a parent may have disadvantages for the child, and it might be important for these to be considered. I think if it would be better for this paragraph to refer to possible advantages and disadvantages.

In paragraph (x) in the second dot point should probably read “...parent or other person...”

In relation to the reference at the end of this section it is not clear whether the whole material in paragraph B is a direct quote from the document referred to. In my view it would be better for this section to be written in a way that is appropriate for the Family Court of Australia. The fact that it draws substantively on the document cited could be appropriately indicated elsewhere, for example in the introduction or preliminary part of the document.

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