A recent report by the Senate Legal and Constitutional Affairs Committee has endorsed proposed amendments to the Family Law Act that place more emphasis on protecting children from instances of family or domestic violence.
The Family Law Legislation Amendment (Family Violence and Other Measures) Bill will roll back some of the more controversial aspects of the 2006 Howard government family law reforms, which gave greater emphasis to shared parenting at the behest of fathers’ groups.
The most significant change to the law concerns how courts will judge what constitutes a "child’s best interests" when deciding parenting orders. Under the current scheme, introduced under Howard, the two primary considerations judges must take into account are the benefits of a meaningful relationship with both parents, and the need to protect the child from family violence.
The bill proposes that the second consideration — family violence — be given priority in cases of inconsistency.
Dr Juliet Behrens of Canberra family law firm Dobinson Davey Clifford Simpson, who has lectured and published on family law at the Australian National University, says that the major beneficial changes proposed by the report are to remove the requirement of inconsistency, and to prioritise protection from harm in the first instance.
"What the Senate Committee is saying is basically that’s the right idea, but … there shouldn’t need to be an inconsistency between the primary considerations before greater priority is given to protection from harm," Behrens told New Matilda.
The bill will also broaden the definition of what constitutes family violence and abuse in relation to a child. The current definitions limit the meaning of abuse to actual physical or sexual assault, and in the case of family violence, actual or threatened conduct that causes reasonable fear of danger.
The proposed changes to the child abuse definition will make provision for "serious psychological harm", including when a child is exposed to family violence — for instance violence between parents — but the Senate report recommends the removal of the word "serious". For instance, a submission by the Family Court raised the question whether any one form of child abuse is more ‘serious’ than another: "… if a qualifier is put in, there is a concern some types of child abuse would become accepted".
"They balked at that word ‘serious’, saying: ‘Why should it need to be serious psychological harm before it’s abuse?’ I think that’s a positive recommendation," says Behrens.
Family violence has been expanded to include coercion and control, a response to widespread concern that emotional and economic abuse, long recognised in academic literature on the topic, was insufficiently recognised by the law.
Jane Wangmann from the University of Technology Sydney is the author of a 2008 paper entitled Different Types of Intimate Partner Violence?, a comment on a report by the Australian Institute of Family Studies which recommended differentiating between different types of domestic violence. She writes, "assessments of seriousness invariably emphasise physical and sexual forms of abuse as the worst. This runs counter to what women who have experienced domestic violence report; that the verbal and emotional abuse suffered was the worst and has had the longest lasting impact on their lives."
The Coalition senators on the Committee, led by Deputy Chair Senator Gary Humphries, did not agree "that the net should be cast so wide as to capture all human behaviours", a view shared by fathers’ groups. Fathers For Equality, a prominent fathers’ rights group, believes that a man raising his voice would be "all it takes for a man to lose his children in today’s hyper-sensitive landscape of domestic violence prevention". They believe that "in the eyes of the court, all men are considered to be potential abusers".
Behrens disagrees. The key factor will remain "the context of the relationship and their other behaviour".
Probably the most controversial 2006 reform to be overturned is the so-called "friendly parent" provision. A consideration in parenting orders that requires the courts to take into account the "willingness" of each parent to work with each other, it has been widely regarded as having a dampening effect on the ability of women to report family violence for fear of being viewed as "unfriendly" by the court. This is due to the diffculty of proving family violence allegations — especially patterns of emotional abuse — and especially in initial interlocutory hearings where scrutiny is difficult, and the trope persists that women raise allegations of family violence as a weapon against their partners.
Behrens considers the removal of the provision a positive step. "All the evidence suggests that rates of false allegations of family violence are very, very low, and really the problem is the reverse: family violence hasn’t been brought to the fore enough. And that’s what this bill attempts to redress," she said.
Rarely used mandatory costs orders, where legal costs are enforced against litigants bringing false or vexatious claims, are also set to be repealed.
The Coalition senators were unconvinced that the "friendly parent" provision was dampening rates of disclosure and maintained that a "mandatory costs order provision sends a strong message to family law litigants that the making of knowingly false allegations will not be tolerated".
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