New Amendments to the Family Law Act

    Philip Theobald

     Barrister, Mediator and Family Dispute Resolution Practitioner.

This is a paper prepared for delivery at the Family Law Pathways Conference “Supporting Children when Families Separate” held at Coffs Harbour on 18 May 2012.

The paper examines and discusses some of the amendments to the Family Law Act 1975 (Cth) that will come into force on 7 June 2012. The great majority of the amendments relate to revisions to provisions relating to family violence and arise from papers prepared at the request of the Commonwealth Government and the Family Court as well as representations made directly to Government.

The amendments are relevant to the work done by lawyers, family consultants, counsellors and Family Dispute Resolution Practitioners particularly as they add significantly to obligations imposed on those practitioners in the Act.

In this paper I will concentrate on what seem to me to be the most important of the amending provisions to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The Act was assented to on 7 December 2012and most of its provisions relating to parenting applications will have effect from 7 June 2012.

Violence in Family Relationships

If we are to properly appreciate the amendments it is necessary to think at least a little about the problem they are designed to meet. They are the result of research over a period following the introduction of the major parenting amendments in 2006. The research has been documented and includes:

  • Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Canberra: Commonwealth of Australia, 2009.
  • Hon Richard Chisholm, Family Courts Violence Review (Attorney-General’s Department, Canberra, 2009).
  • Australian Law Reform Commission & New South Wales Law Reform Commission, Family Violence: A National Legal Response, (2010).
  • Rae Kapiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu et al, Evaluation of the 2006 Family Law Reforms 26 (2009).

Professor Patrick Parkinson (Professor of Law in the University of Sydney) in an article, The 2011 Family Violence Amendments: What Difference Will They Make? Australian Family Lawyer, Vol 22 No 2, provides a useful back ground:

Research evidence from large-scale community or national surveys in many countries has established that violence is a pervasive and common problem in intimate relationships. Family violence and abuse is one reason why parents separate, so it is unsurprising to find many separated parents report such a history. The Australian Institute of Family Studies, in its comprehensive evaluation of the 2006 reforms, found that 26% of mothers and 17% of fathers reported being physically hurt by their partners. A further 39% of mothers and 36% of fathers reported emotional abuse defined in terms of humiliation, belittling insults, property damage and threats of harm during the course of the relationship.

Clear-cut answers may be obvious in some situations, but these are perhaps a minority. Families where there has been physical violence and/or emotional abuse vary considerably, and children will bond with inadequate parents of all kinds.

The research by the AIFS demonstrated that a history of family violence does not necessarily impede friendly or cooperative relationships between the parents following separation. In interviews, which were conducted on average fifteen months after separation, 16% of mothers who reported being physically hurt by their ex-partner during the course of the relationship reported friendly relationships at the time of the interview, and a further 23.5% reported having a cooperative relationship.

While others reported distant or conflictual relationships, only 18.5% reported a continuing fearful relationship. Fifty-five per cent of mothers and 50% of fathers who reported emotional abuse by their ex-partner during the course of the relationship reported friendly or cooperative relationships by the time of interview.

In the environment in which we all work it is the issue of current fear for the safety of clients or children, which concerns us. It is the past history that informs present concerns and a resulting problem is that we may identify cases as worrying because of past bad behaviour that are no longer worrying. While it is intellectually responsible to recognise the possibility that we may include some cases as presenting a current danger based on their history which are not in fact currently dangerous due to changed circumstances it is, I suggest, nevertheless important to overreact to safety issues rather than to place a client or child in danger.

The Amendments relating to Violence

If we are to understand the amendments it is necessary to look at the Explanatory Memorandum provided to parliamentarians when what was then called the Family Violence Bill was presented to the Federal Parliament.

These amendments address issues of significant community concern by strengthening the role of Family Courts, advisers and parents to preventing harm to children while continuing to support the concept of shared parental responsibility and shared care, where this is safe for children.

The key amendments made by the Family Violence Bill will:

  • Prioritise the safety of children in parenting matters;
  • Change the definitions of ‘abuse’ and ‘family violence’ to better capture harmful behaviours;
  • Strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children.
  • Ensure the courts have better access to evidence of abuse and violence by improving reporting requirements; and
  • Make it easier for State and Territory child protection authorities to participate in family law proceedings where appropriate.

The Family Violence Bill retains the substance that the shared parenting laws introduced in the Family Law Amendment (Shared Responsibility) Act 2006 (Cth) and continues to promote a child’s right to a meaningful relationship with both parents where this is safe for the child.’

The questions for all advisors are:

–      How will it work?

What difference will the changes make to my practice?

-       What difference will the changes make to my practice?

-       Will it work?

-       What must I watch out for?

-        Can I just yawn and ignore it?

After reading the Act and some commentary I can answer the last question first. It would be a mistake to adopt the attitude that it will not make a difference to your practice. These amendments are not just window dressing, they do contain provisions that will affect how you practise as a family lawyer, a family consultant, a family counsellor or a family dispute resolution practitioner.

There are three areas of change relating to family violence:

  • A change in definitions and the insertion of new terms;
  • Revision of priorities in s60CC(2); and
  • Changes to s60CC(3).

Definitions

The first step in appreciating how the amendments work is to look at the definitions and see how they have been amended. Definitions have been amended in sections 4 and 4A of the Act and in Part VII.

In particular here is a new Subdivision BB after Subdivision BA of Division 1 of Part VII which places obligations on an adviser and defines adviser as a person who is:

(a)  legal practitioner; or

(b)  family counsellor; or

(c)   family dispute resolution practitioner; or

(d)  family consultant.

This definition is significant because it includes lawyers in the category of persons who are obliged by the new s60D when they are advising or assisting a person to:

(a)  inform the person that the person should regard the best interests of the child as the paramount consideration; and

(b)  encourage the person to act on the basis that the child’s best interests are best met ;

    (i)       by the child having a meaningful relationship with both of the child’s parents; and

    (ii)     by the child being protected from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (iii)    in applying the considerations set out in subparagraphs (i) and (ii)- -by giving greater weight to the considerations in subparagraph (ii).

This change places a mandatory obligation on advisers to emphasise to their client that safety is more important than the issue of maintaining a meaningful relationship with both parents. This will, I suggest create a difficulty for an adviser whose client is an alleged perpetrator of abuse, neglect or family violence.

Those in the community who claim that allegations of violence are made to secure a tactical advantage will have their opinions reinforced by subparagraph (iii) notwithstanding the research which ahs been carried out on this issue.

Advisers should note that the obligations under s60D are in addition to the mandatory obligations in s63DA (informing clients about parenting plans).

Mandatory Notification.

Section 67Z has been amended to widen the range of persons required to notify an allegation of child abuse or risk of abuse to include an independent children’s lawyer who represents the interests of a child in the proceedings and any other person prescribed by the Regulations for the purposes this paragraph.

Previously the obligation to notify was only imposed on a party. The addition of the independent children’s lawyer is important because it places a mandatory obligation on an independent party to the proceedings. It also protects the Independent Children’s Lawyer who does notify.

Independent children’s lawyers have, in the past, expressed concern at the lack of clarity in the Act on their obligations in the event that they find allegations of abuse which have not been notified or hear matters of concern which cause them to fear a child is at risk of abuse.

The addition of a new section 67ZBA extends mandatory notification to include those cases where family violence or risk of family violence is alleged and claimed to be a consideration for the court in making or refusing to make a parenting order.

Court Obligations

The amendments create obligations for Registrars to report notifications and section 67ZBB provides in the event of a notification the court must:

(a)  consider what interim or procedural or procedural orders (if any) should be made:

     (i.)  to enable appropriate evidence about the allegation to be obtained as expeditiously as possible

     (ii.) to protect the child or any of the parties to the proceedings

There are other provisions that require the court to act expeditiously and if appropriate within 8 weeks after filing of the notice and to considerwhetherorders should be made to obtain documents from the State or Territory agencies.

Other Definitions

The amendments contain a number of important new or changed definitions in addition to those mentioned earlier. I particularly want to bring some of those to your attention. They are:

Term Present definition Amended definition
Abuse in relation to a child, means:(a)  an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territoryin which the act constituting the assault occurs; or(b)  a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person. in relation to a child, means:(a)  an assault, including a sexual assault, of the child; or(b)  a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or(c)  causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or(d)  serious neglect of the child.
Family violence 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. violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.

There are also new terms introduced and examples of behaviour, which exemplify those terms. In the case of family violence section 4AB (2) provides these examples:

(a)  an assault; or

(b)  a sexual assault or other sexually abusive behaviour; or

(c)  stalking; or

(d)  repeated derogatory taunts; or

(e)  intentionally damaging or destroying property; or

(f)  intentionally causing death or injury to an animal; or

(g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

 (j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

The expression exposed to family violence has been introduced. It is used in relation to a child and is defined in section 4AB(3) as:

the child sees or hears family violence or otherwise experiences the effects of family violence.

The section proceeds to provide examples of what may constitute an experience of family violence:

(a)  overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b)  seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c)  comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d)  cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

The use of examples, I suggest, is possibly the most useful tool this amending Act has provided for practitioners. For many years we have encountered clients who have either refused to recognise they were the victims of family violence or they were the perpetrators of it. The use of legislated examples, particularly of non-physical violence is a great answer to the argument that without bruises or blood there is no violence.

Similarly the argument that ‘I have never hit the children’ or ‘the fights all happened after the children went to bed’ can be answered by the illustrations of exposure. The insertion of exposure to violence in the terms used in the Act confirms to the client the recognition of exposure as a serious issue.

The examples will also assist lawyer practitioners in gathering and presenting evidence to court. They will act as a focus for practitioners when working forensically.

Likewise the insertion of serious neglect as an element of violence is recognition of the seriousness of neglect as an element for consideration in parenting applications Allegations of neglect are frequently made in family law cases. The question of whether or not the neglect is serious will require objective analysis of the evidence provided.

Neglect allegations range from occasional nits to malnutrition and failure to educate. Will failure to arrange childhood inoculations constitute serious neglect?

Section 60CC(2) priorities

Section 60CC sets out the primary considerations and additional considerations that a court must take into account in determining what is in the best interests of a child. At present the relevant part of the section reads:

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child‘s parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The amendments include a new section 2A;

In applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b).

And there is also the present s60CG:

Court to consider risk of family violence

(1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child‘s best interests being the paramount consideration, ensure that the order:

(a)  is consistent with any family violence order; and

(b)  does not expose a person to an unacceptable risk of family violence.

(2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

The effect of the new section 2A and s60CG is to ensure that safety is the priority when the court is considering the s60CC factors as some would say it always should have been.

The Full Court in both Aldridge and Keaton and other cases has said that the use of the terms primary and additional in relation to the considerations in s60CC does not imply a hierarchy of considerations. That conclusion will require reconsideration in view of the insertion of s2A, which clearly does establish a priority.

Other changes to s60CC

The present s60CC(3)(c) which reads:

(c)  the willingness and ability of each of the child‘s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

Has been repealed and replaced with:

(c) the extent to which each of the child’s parents has taken or failed to take the opportunity:

     (i) to participate in making decisions about major long term issues in relation to the child; and

     (ii) to spend time with the child; and

     (iii) to communicate with the child;

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

The effect of this change is to get rid of what is known colloquially as the ‘friendly’ parent consideration that had been used to counter allegations of violence and upgrade the provisions of the present s60CC(4) into a consideration. S60CC(4) and (4A) are both repealed as a consequence of the change outlined above to s60CC(3) (c).

There is also a change to s60CC(3)(k) which is important. The present subsection (k) reads:

(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

In practice this section has received very little use, Courts have preferred to hear evidence of the circumstances leading to a family violence order and determine from that evidence whether or not weight should be placed on that evidence instead of accepting a family violence order at face value. Family Courts recognise that family violence orders may be obtained in many different ways including ‘by consent’ to avoid expense or inconvenience or at the suggestion of a police officer. They may be granted ‘without admissions’ on the part of the alleged perpetrator.

The present subsection (k) has been repealed and replaced by:

(k)  if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:

     (i)  the nature of the order;

     (ii)  the circumstances in which the order was made;

    (iii)  any evidence admitted in proceedings for the order;

    (iv)  any findings made by the court in, or in proceedings for, the order;

    (v)  any other relevant matter;

This change is worrying, as it appears to enable the re-litigation of family violence proceedings. There are reports of many respondents to family violence proceedings who claim that orders were made without justification and these provisions could provide them with an opportunity at the other party’s costs to have, as it were, a second go at the same proceedings.

What Do Practitioners Need to Do

As a lawyer my mind naturally turns to what lawyers need to do but in this case I think we all need to do the things I am about to outline. We all give advice and try to assist our clients at some stage along the family law pathway they choose to follow and we all qualify as advisers. My suggestions are:

  • familiarise yourselves with the definitions. The Family Law Act is a terribly numbered piece of legislation but as far as parenting is concerned you need to read the definitions in section 4 and 4A (stop when you get to section 5) and in Part VII (where they are scattered through the various sections).
  • Familiarise yourselves with the notification requirements. Notification is mandatory for advisers. You don’t have any discretion and you should tell your clients that you have no discretion before you start talking to them. That may mean they don’t tell you about events that they don’t want reported but someone will, usually their estranged partner and now the children to their Independent Children’s Lawyer.
  • When you are talking to clients (taking instructions if you are a lawyer) you should question whether he/she considers she/he may have been the subject of family violence in one or more of its forms or a child has been the subject of or exposed to family violence or its effects.
  • Tell the client that the court is no longer required to make a costs order in the event that an allegation of abuse is not proved.

Professor Parkinson in the paper referred to earlier provides some guidance to practitioners;

In preparing a case involving allegations by the client of family violence, it will be important to explore the history and nature of the violence, and in particular, to examine whether the physical violence was part of a wider pattern of behaviour to coerce or exert control . . . .

A key distinction is between violence as a means of exerting control and violence that erupts due to a loss of control. A history of coercive controlling violence has a lot of implications for the suitability of a parent to spend regular unsupervised time with his children.

The amendments have the potential to add to litigation by creating an increased application of adversarial arguments in order to prove or disprove the degree and type of family violence experienced during and following a relationship. Courts and practitioners will need to emphasise even more strongly the virtues of a child focussed rather than a dispute focussed approach in order to avoid the adversarial push.

An additional Object

There has been little discussion about one further amendment that may lead to some unexpected developments in practice. There is a new provision in s60B. You will recall that s60B contains the objects of Part VII and presently they are expressed as:

(1)  The objects of this Part are to ensure that the best interests of children are met by:

(a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)  The principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):

(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)  parents should agree about the future parenting of their children; and

(e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)  For the purposes of subparagraph (2)(e), an Aboriginal child‘s or Torres Strait Islander 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; and

(b)  to have the support, opportunity and encouragement necessary:

(i)  to explore the full extent of that culture, consistent with the child‘s age and developmental level and the child‘s views; and

(ii)  to develop a positive appreciation of that culture.

The additional object is:

(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

We have not heard much about this Convention in Australia as we regard ourselves as protectors of children but Australia ratified the Convention on the Rights of the Child (‘CRC’) in December 1990 and consequently Australia has a duty to ensure that all children in Australia enjoy the rights set out in the treaty. The CRC has a number of core principles and they include:

  • Right of all children to survival and development;
  • Respect for the best interests of the child as a primary consideration relating to children;
  • Right of all children to express their views freely on all matters affecting them; and
  • Right of all children to enjoy all the rights of the CRC without discrimination of any kind.

The FLA quarantines best interests to parenting matters. The new object may open the way to argue it should be applied in other situations such as property orders or parentage testing and the right to be heard could lead to a surge in orders for ICL appointments or some other means of getting the children’s views before a court.

PHILIP THEOBALD