Safety first in family law changes
The Australian, 11 November 2010, By Chris Merritt and Patricia Karvelas
The Gillard government has unveiled radical changes to family law.
The changes would redefine domestic violence, place greater weight on
child safety and could weaken the Howard government's shared parenting laws.
The changes, which are directed at cases involving abusive parents,
elevate the safety of children to the top priority in custody disputes.
Whenever a court considers that this goal is in conflict with the right
of a child to have a relationship with both parents, it will be required to
give greater weight to child safety.
The change is contained in draft legislation released for discussion
yesterday by Attorney-General Robert McClelland.
The proposed changes to the Family Law Act come after Labor MPs,
particularly women, raised concerns that the Howard government laws had
gone too far and were hurting vulnerable children.
The Howard government introduced changes in 2006 that placed greater
emphasis on shared parenting when couples divorced. A report by former
Family Court judge Richard Chisholm found that many people wrongly
believed this meant separated fathers were automatically entitled to equal
custody of their children.
Under the planned changes to the Family Law Act, the government proposes
to ease the evidentiary burden on those seeking to show that a child faces
a risk of violence.
Family violence will be redefined to recognise that it can take the form
of physical assaults, harassment, emotional manipulation, financial abuse
and threatening behaviour.
The changes expand the definition of family violence beyond it being
conduct - actual or threatened - that causes a member of a person's
family to reasonably fear or be apprehensive about their wellbeing or safety.
The new definition includes a long list of matters including behaviour
that torments, intimidates, or harasses a family member. That effect could be
caused by repeated derogatory taunts or racial taunts, or intentionally
causing death or injury to an animal or damaging property.
Family violence will also include unreasonably controlling, dominating
or deceiving a family member. This could be brought about by denying a
family member financial autonomy or preventing a family member from making or
keeping connections with family, friends or culture.
Family violence would also include threatening to commit suicide with
the intention of tormenting or intimidating a family member. Lawyers and
those working in the family law system will also be required to report wider
categories of abuse to child welfare authorities. Neglect and
psychological harm through exposure to family violence will join assault, sexual
assault and sexual exploitation as matters that trigger mandatory reporting.
The proposed changes were welcomed last night by former Family Court
chief judge Alastair Nicholson, who said they were long overdue.
He said the Howard government's changes to the Family Law Act had not
been thought through. "There was too much sound and fury and not enough
proper analysis," he said.
The Howard government moved in 2006 to give both parents responsibility
for children after divorce. Judges must now at least consider an "equal
time" arrangement and, if that is not practicable, then an arrangement in
which the children spend "substantial and significant" time with both parents.
Mr McClelland has been reviewing the law. Earlier this year he said
fathers should never have been led to believe they were guaranteed a 50-50 time
split after a divorce.
Men's Rights Agency director Sue Price said the government was trying to
destroy shared parenting by making these changes.
"It's the first move in rolling back shared parenting, which is very
foolish, and ultimately all the blame will be placed on men," she said.
"That's the established agenda. Statistics say that more biological
mothers kill their children than biological fathers and more mothers abuse and
neglect their children."
Ms Price said she was meeting Tony Abbott at a function last night and
would raise the matter.
Sole Parents Union president Kathleen Swinbourne, whose group represents
single mothers, said the changes did not go far enough, but were a good
"Broadening out the definition of violence doesn't make it easier to
prove in the Family Court," Ms Swinbourne said.
"And the other issue is that children need to be protected from a lot more than violence."