1. Family Violence The new provisions, in context Richard Chisholm

2. The amending act Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 Fully in force:7 June 2012.

3. Violence: normal or exceptional? Families in general: ? Separating families: 17.5% Sep. families attending FRSPs:30% Sep. families going to Court:70% Sep. families adjudicated by Court:79%

4. Main changes at a glance *Definitions of family violence, abuse *Priority for protection *Remove ‘friendly parent’ *Remove costs provision s 117AB *Family violence orders - para (k) *Convention on Rights of the Child.

5. Background 1995 amendments, encouraging parental involvement: new language, s 60B. 2006 amendments: parental involvement and protection from violence: the “Twin Pillars”. Research – reports of 2009/2010. Violence Bill – Exposure Draft November 2010; revised bill, March 2011; Senate Committee Report 22 August 2011; bill passed 22 November 2011.

6. Sources (1) AGD website: www.ag.gov.au / Families : Evaluation of the 2006 Family Law Reforms (AIFS); Research projects on shared care parenting and family violence (various reports). Australian Institute of Family Studies website http://www.aifs.gov.au/. Australian Law Reform Commission website: http://www.alrc.gov.au/Publications Numerous text books and articles, especially in Australian Journal of Family Law.

7. “Family violence” OLD 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 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. Note:A person reasonably fears […] if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

8. “Family Violence” NEW 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. (2) Examples of behaviour that may constitute family violence include (but are not limited to):

9. “Family Violence” NEW (2) assaults, sexual assaults etc; stalking; repeated derogatory taunts; intentionally damaging or destroying property; intentionally causing death or injury to an animal; [unreasonably denying the family member financial autonomy, or withholding necessary financial support]; preventing the family member from making or keeping connections with his or her family, friends or culture; unlawfully depriving the family member etc of his or her liberty.

10. “Family Violence” definition Financial issues Sub-s (2) … (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 [a family member who is entirely or predominantly dependent on the person]; Includes ordinary arguments about money?

11. “Family Violence” definition NO: always go back to sub-s (1): 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.

12. “Family Violence” definition Coercing a person to claim social security payments? (ALRC suggestion) Already covered in definition?

13. “Family Violence” NEW 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. (2) Examples of behaviour that may constitute family violence include (but are not limited to):

14. “Family Violence” NEW Violent, threatening or “other” behaviour – meaning? That coerces or controls… cf literature on ‘coercive controlling violence’, or ‘intimate terrorism’. As distinct from ‘couples violence’ etc, perhaps. Or causes fear… cf ‘couples violence’. Brain tumor – attack: family violence?

15. “Abuse” OLD: abuse, in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) [sexual activity with child]. NEW DEFINITION ADDS (emphasis added) : (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.

16. “Abuse – exposed to” (3) a child is exposed to f.v. if the child sees or hears family violence or otherwise experiences the effects of f.v. (4) Examples …include (but are not limited to) the child: (a) overhearing threats of death or personal injury … ; (b) seeing or hearing an assault …; or (c) comforting or providing assistance [to assaulted person]; or (d) cleaning up a site […]; or (e) being present when police or ambulance officers attend an incident […]

17. Musing on definitions.. Two purposes, perhaps Legal/operative, or Ideological/educative.

18. The current ‘twin pillars’ S 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.

19. NEW: Priority for protection: 60CC(2A) (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 …abuse, neglect or family violence. New subsection: (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).

20. “Friendly parent”repealed OLD 60CC(3)(c) repealed: 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.

21. New s 60CC(3)(c), (ca) (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 …; 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 obligations to maintain the child;

22. Family violence orders (1) OLD s 60CC(3)(k): (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;

23. F.V. orders: options 1.Amend to: “(k) any family violence order that applies to the child or a member of the child’s family.” (2011 bill). 2. Expand this, to include orders no longer in force (Family Law Council, Behrens & Fehlberg). 3. Retain old (k) (Coalition). 4. Delete para (k) (Chisholm ).

24. FV orders: the new law (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…; (v) any other relevant matter;

25. Other provisions NEW: s 60B(4): An additional object of this Part is to give effect to the Convention on the Rights of the Child… 60CH: Informing court of child welfare care arrangements 60CI: Informing court of child welfare notifications etc 60D: Adviser’s obligations (consistent with new s 60CC(2A)). REPLACE s 60K with new ss 67ZBA and 67ZBB (the obligation to file notice is lifted from the Rules to the Act) REPEAL s 117AB (mandatory costs order for false allegation or statement)

26. Main changes at a glance *Definitions of family violence, abuse *Priority for protection *Remove ‘friendly parent’ *Remove costs provision s 117AB *Family violence orders - para (k) *Convention on Rights of the Child.

27. Some other reform possibilities *Better education for professionals re child development, family violence, abuse, etc. *Coordination, especially State-Federal. *Getting safety information to the courts. *Improved court procedures, risk assessment. *Improved resources. *Legislation emphasising meeting children’s developmental needs, not parental rights.

28. Possible roles for legislation Rules for decision-makers Guidelines for settlement Public education/ideological Political – Accommodating pressure groups Apparently dealing with problem Etc…

29. An unnecessary complication: decision-making linked with care arrangements Presumption favouring equal shared parental responsibility (s 61DA)(decision- making). Where an order provides for equal shared parental responsibility, court must ‘consider’ child spending equal time, or substantial and significant time, with each parent (s 65DAA)(care arrangements).

30. Primary/additional considerations S 60CC (1)…in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). (2)The primary considerations are: […] (3) Additional considerations are: (a) [child’s views] (b) [relationships] (c) [parental ability] … etc

31. The ‘twin lobbies’ view of 60CC (a) the benefit to the child of having a meaningful relationship with both of the child’s parents (and the s 65DAA nudge towards equal time) Arguably reflects lobbyists for parental involvement and an equal time presumption. (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Arguably reflects lobbyists for protection, especially of children, from violence and abuse.

32. The ‘twin lobbies’ view of 60CC (2) It therefore seems easier to understand the 2006 amendments, especially the ‘twin pillars’, and the nudge towards equal time, as a political compromise rather than an expression of what we know about children’s needs.

33. Do parental rights notions underpin ss 60CC etc? A parental rights notion: Parenting orders should be based on the idea that each parent is entitled to be involved in the child’s life, ideally equally, unless a parent has forfeited his or her rights by being abusive, neglectful or violent; although the court should avoid making orders likely to harm children.

34. A hint of parental rights (1)? 60B. (1) [objects are] to ensure that the best interests of children are met by: 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; [Not, eg “… to the extent that would advance the best interests of the child”]

35. A hint of parental rights? (2) S 60B (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests): … (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);

36. A hint of parental rights? (3) Curious basis for the 1995 changes, (children as property). Problematical basis for 2006 changes: no issue re parental responsibility orders; ‘fatherlessness’ (Howard); no evidence of harm from existing law; misleading idea of “80:20 rule”. Possible problem: 80:20 seen as a default outcome. (If so, easy solution.)

37. A children’s rights approach Parenting orders should be based on the child’s current and developmental needs, and the capacity of parents and others to meet them.

38. Legislation: fixing the ‘shared parenting’ provisions (1) 1. Break the link between parental responsibility and care arrangements. 2.Don’t privilege any type of parenting arrangements. (ie don’t replace 80:20 with 50:50 as a default). 3.Remove the categories “primary” and “additional” in the s 60CC considerations.

39. Legislation: fixing the ‘shared parenting’ provisions (2) 4.Remove confusing language of “equal shared parental responsibility”. 5.Simplify s 60B (objects and principles). 6.Conduct technical review of the whole of Part VII (Children).

40. A possible re-draft S 60CC: (1)In considering what parenting orders to make, the court must not assume that any particular parenting arrangement is more likely than others to be in the child’s best interests, but should seek to identify the arrangements that are most likely to advance the child’s best interests in the circumstances of each case. (2)…the court must take into account the following matters, so far as they are relevant: […]

41. Approaches to reform Current law: the “twin pillars” and a nudge towards equal time, via a tangle of complex provisions and categories. Reform strategy of the 2012 Act: Tip the scales towards protection at the expense of parental involvement, and fix particular problems eg 117AB). An alternative reform strategy: Remove both ‘pillars’, basing legislation on children’s developmental needs; and fix particular problems eg 117AB).

42. Features of the alternative strategy “Family violence” not a separate legal category re parenting orders, though of course very relevant. Legal definitions eg ‘violence’, ‘parent’, now less important (because no ‘primary/additional’). The Act would be simpler and shorter. The need for education, on violence, parenting, etc, would be addressed by means other than legislation. There could be a greater focus on the children, and less distraction by legal categories and notions of parental entitlement.

43. Reviewing … Rules for decision-makers Current law workable, though difficult Guidelines for settlement Currently a big problem. Reforms give inadequate lead? Public education/ideological Mixed messages/dog whistles Political Formidable challenges

44. Issues of confidentiality and information-sharing(1) The s 10J ‘cone of silence’ does not include intake: Rastall & Ball & Ors [2010] FMCAfam 1290 (Reithmuller FM) ; Sect 10J (unfortunately) prevents evidence of communications relevant to the voluntariness of a parenting agreement: Roux v Herman [2010] FMCAfam 1369 (Reithmuller FM).

45. Issues of confidentiality and information-sharing(2) Family counsellors have a discretion not to disclose confidential communications (s 10D(3)): Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159 (Coleman J). Subpoenas requiring production of inadmissible confidential communications are likely to be set aside as having no legitimate forensic purpose. Trapp & Vonn [2009] FMCAfam 497 (Reithmuller FM); also see Harkiss, above.

46. Issues of confidentiality and information-sharing(3) Apparent conflict between cases emphasising importance of confidentiality: Relationships Australia Queensland v M (2006) 37 Fam LR 12; (2006) FLC ¶93-305; [2006] FamCA 1265 (Carmody J). And those emphasising the importance of courts having relevant information: Smirnov & Turova [2009] FMCAfam 1083 (Walters FM); and the overruled decision of Altobelli FM in Harkiss & Beamish [2011] FMCafam 527.