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Parenting Laws Review - What Are The Problems And What Are The Solutions?

Family Law: 22 March 2019

On 28 January 2010 the Attorney General released three reports regarding the 2006 Parenting Reforms to the Family Law Act ('the Act'), by the Australian Institute of Family Studies, the Family Law Council of the Law Council of Australia and Prof Richard Chisolm respectively.  They have been reported as concluding:

  • Parents, Lawyers and Judges have misunderstood the idea of shared parenting, which refers to parents making decisions regarding a child's long-term future together. They think it means both parents spend equal time with children.
  • Consideration should be given to widening the definition of violence to include threatening behaviour.
  • The family law system has 'some way to go' in the screening and handling of family violence, including legislative provisions that may deter the disclosure of violence.

Understanding shared responsibility

The three reports are huge but I have found no conclusions that Lawyers or Judges have misunderstood the difference between shared parental responsibility and equal time.  There has been some confusion for parents, as expected in any new legislation.

Defining family violence

One of the reports recommends widening the definition of violence in the Act.  Currently family violence is defined as (in summary) actual or threatened conduct causing a person reasonably to fear for their safety.  The proposed definition (again in summary) refers to behaviour that is physically, sexually, emotionally, psychologically or economically abusive, or is threatening or coercive or otherwise causes a person to fear for their safety or wellbeing. 

The second version is not necessarily a wider definition.  Both definitions refer to threats.  Although the proposed definition does not require a person's fear to be reasonable, it still requires the behaviour itself to be controlling or dominating.  Obviously the new definition is infuriatingly vague.  As with the definitions in the new Intervention Order legislation in Victoria, psychological, economic and emotional mistreatment could be claimed by every person almost every day.  To be fair, the term abuse does suggest a higher level of seriousness, but the current definition appears simpler and less fraught with misunderstanding for parents.

Dealing with family violence

The reports raise concerns regarding the requirement for the Court to order that a party knowingly making a false allegation or statement in proceedings pay costs of the other party. One report states that this section has not been used since July 2008.  Given there are already perjury powers in the Act, one would have hoped that this stricter Section was not required. By the same token, it does not appear to intimidate persons who genuinely claim to have suffered violence.

The reports raise a lack of understanding regarding family violence, such as the following quote from a lawyer: "Much family violence still goes undetected due to time and resource constraints within the system.  A full investigation is not often practical because it takes too long and costs too much.  On other occasions, when family violence is alleged wrongly, the allegations cannot be refuted because of the difficulty of proving the negative.  The whole subject is still a mess.

This is a reasonably accurate summary. For a person who cannot receive legal aid, an intervention order case or parenting case can be very expensive. Family violence tends to be intimate and difficult to prove. There is great risk in a Court being wrong either way, and thereby either failing to protect a parent or child adequately, or crippling the relationship between a parent and child unnecessarily. Prof Chisolm recommends that further funds be provided to review matters more thoroughly, in the early stages of a dispute. This has merit but will cost money.

Two of the three reports generally focus on responses to surveys about perceptions.  Although these are useful in themselves, far more attention should have been given to the published judgments themselves, in reviewing how Courts deal with violence.

This has been wrongly reported in the media as providing that if a claim cannot be proved, costs can be awarded.

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