1. Parenting and Post Separation Safety A guide to assisting clients protect children from physical or psychological harm in parenting matters. Presented by Phoebe Kahlo RRR & CLE Lawyer

2. This presentation contains information prepared by the Women’s Legal Service (WLS) Inc. Whilst all due care has been taken, the WLS does not warrant or represent that the information is free from errors, omissions or the information is exhaustive. Additionally, information that was accurate at the time of the presentation may become inaccurate at a later time without notice. Viewers of this presentation are responsible for making their own assessment of the information and should verify all relevant representations, statements and information with their own professional advisers. Disclaimer

3. WLS is a specialist Community Legal Centre located in Brisbane. WLS assists Queensland women through the provision of legal and social work services in the areas of family law, domestic violence, child support and child protection. WLS is committed to the creation of a society in which every woman is safe from violence, is able to tell her story and have it heard and respected and receives fair outcomes from legal and social welfare systems. Introduction to WLS

4. 1. Provide an overview of the recent legislative amendments to the Family Law Act. 2.Explore options available to clients presenting with allegations of harm where there is agreement and where there is none. 3. Consider a variety of clauses when drafting an agreement or orders sought that may mitigate harm to a child. Aims and Overview

5. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

6. Section 60CC (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. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). (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). A Child’s Best Interests

7. Section 60CC(3: (j) any family violence involving the child or a member of the child's family; (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;… (m) any other fact or circumstance that the court thinks is relevant. Additional Considerations

8. s4(1) “abuse”, 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 activitywith 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. Previous Definition of Abuse

9. s 4(1) “abuse”, 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. New Definition of Abuse

10. s 4(1) “family violence” means conduct, whether actual or threatened, by a person towards or towards the property of a member of the person’s family that causes that person or any other member of the person’s family to reasonably fear for, or reasonably to be apprehensive about, his or her personal well being or safety. Note: A person reasonably fears for or reasonably is apprehensive about his or her personal wellbeing or safer in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety. Old definition of family violence

11. Section 4AB(1) For the purposes of this Act, family violence means 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. Current definition of family violence

12. s4AB (2) Examples of behaviour that may constitute family violence include (but are not limited to): (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. Examples of Family Violence

13. Section 4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Definition of Exposure

14. Section 4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (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. Examples of Exposure

15. Options available to clients presenting with allegations of harm when there is agreement

16. A parenting plan is a written and signed agreement between parents. It can cover any aspect of the care, welfare and development of a child. It is unenforceable (unlike an order) so is more risky where there may be issues of harm. Courts can have regard to terms of parenting plan if proceedings are commenced at a later date. Option 1: Parenting Plan

17. Done by way of an Application for Consent Orders. Has the same effect as if the parties went to court. Enforceable and difficult to change unless parties agree. Parties are required to inform court: -Of concerns about abuse, neglect or family violence and how orders deal with concerns. -If there is a Protection Order in Place. -If there is an ongoing case about family violence. -If and how proposed orders are consistent with Protection Order. -If Child Safety Services has been involved. Option 2: Application for Consent Orders

18. Options available to clients presenting with allegations of harm where there is no agreement

19. Where agreement cannot be reached proceeding to court is not the only way of protecting a child. Alternatives may include: -Proposing terms of settlement and where no agreement reached denying time; or -Denying time without explanation or proposals. Client should be consulted about risk of abduction and advised about options for urgent interim/recovery/location orders. Option 1: Do Nothing

20. Will provide more certainty, but may not achieve outcome hoped for. Family Court specialises in complex matters (family violence, drug and alcohol abuse, mental health concerns, child abuse). Federal Circuit Court deals with less complex matters. Option 2: Commencing Proceedings

21. 1. Take prompt action where allegations are raised. 2. Ensure Parenting Orders are consistent with existing family violence orders and does not expose a child to an unacceptable risk of family violence. Where proceedings are commenced: Obligations of the Court

22. 1. Attend mediation, unless exception applies; 2. If exception applies, applicant to include in affidavit statement advising of the exception and that they have been advised about the options available for counseling and ADR; 3. Inform the court about the existence of a Family Violence Order; 4. Where a party alleges child abuse, family violence or risk requisite notification must be filed; and 5. When agreement reached during proceeding address issues of harm. Where proceedings are commenced: Obligations of Parties

23. Terms to consider…

24. FAMILY LAW ACT 1975 - SECT 61B Meaning of parental responsibility In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. FAMILY LAW ACT 1975 - SECT 4(1) “major long-term issues", in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about: (a) the child's education (both current and future); and (b) the child's religious and cultural upbringing; and (c) the child's health; and (d) the child's name; and (e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent. Sole PR vs Equal Shared PR

25. In the absence of orders or a parenting plan that state otherwise, both parents are taken to have parental responsibility. When a court is asked to make a parenting order it must consider the presumption of equal shared parental responsibility. The presumption will not apply if the Court believes there has been family violence or child abuse and or there is evidence that it is not in the best interests of the child (s 61DA). Sole PR vs Equal Shared PR continued

26. Consideration should be given to the child living with one parent before moving on to considerations of time spent with the other. If the matter progresses to court and the presumption of equal shared responsibility is applied the court must consider making an order for equal time or where that is in not child’s best interests or appropriate an order for significant or substantial time. Live with

27. Historically, orders for no time are very rare. Appear to be limited to cases where finding have been made of physical assaults to a party, a child being exposed to these assaults or cases involving child abuse. If order is sought consideration might be given to other forms of communication. No time

28. Need to specify who and where. Supervisor can be someone known to parties or contact centre. Supervision orders are not binding unless an undertaking is given and filed. Supervised time

29. Section 4(1)“independent children's lawyer" for a child means a lawyer who represents the child's interests in proceedings under an appointment made under a court order under subsection 68L(2). Appointment of an ICL

30. An ICL is required to: -Form independent view about what is in the BIs of a Child -Make submissions to court suggesting adoption of course of action that best promotes Childs BIs -Put views of child before the court -Act impartially -Put most significant matters contained in Reports before the court -Minimise trauma caused to child as result of proceedings -Facilitate agreement between parties if in child’s best interests (s68LA) Appointment of an ICL continued…

31. Prepared by a Family Consultant. Report Writer meets with parents, children and significant family members. Way of obtaining evidence of a children’s views. Usually contains recommendations for the making of particular orders. Preparation of a family report

32. Testing can provide evidence of usage or abstinence. Liver function testing preferred method for testing alcohol dependency. Urinalysis preferred method of detecting immediate drug use. Hair follicle testing preferred method for detecting long term drug use/abstinence. Specialist pathology facilities should be used and the provision of samples supervised. Alcohol/Drug Testing

33. Kept for clear cases of mental and emotional disturbance. Where child being assessed consider whether parents should also be assessed. If order sought for one party mutual orders will usually made. Attendance upon a psychiatrist

34. Used where allegations are raised as to sexual misconduct involving a child. Limit to what they can tell us. Can contextualise the risk and make recommendations for reducing risk. Can’t identify whether the alleged perpetrator did it, has the ‘profile’ of an offender or predict with absolute certainty. Risk Assessment Report

35. Parties and children can be referred to family counseling, family dispute resolution or other family services at any time. Failure to attend may result in further orders being made. Counselling

36. If no orders in place need applicant needs to obtain urgent interim order that child lives with applicant firs - may be made ex part. Recovery order allows police to search for, recover and return child. Location order requires government departments to give court info regarding child’s whereabouts. Recovery/location of child

37. Can be sought where: -a contravention of a previous order is alleged; or -if a party alleges there has been a significant change in circumstance warranting since the making of the order. Variation of Parenting Orders

38. Can be used to protect a party or child from abuse, threatened physical or mental harm or undue influence. Injunction for the personal protection of a child or party

39. http://www.wlsq.org.au/ http://www.wlsq.org.au/resources/legal-toolkit/ http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Ho me/Publications/Family+Law+Courts+publications/fv_best_pra ctice_for_flc Links

40. Questions