Lawyers face greater responsibilities under amendments to the Family Law Act that came into effect yesterday. These affect all cases filed with the courts on and after 7 June 2012. The LIV is generally supportive of the provisions, which Attorney-General Nicola Roxon says will “help reduce the exposure of children to family violence”. The LIV did, however, raise some concerns about the Act when initially proposed.
Family law a fraught area of practice
The LIV commends the Attorney-General for recognising that the welfare and interests of the child are paramount and for sending a clear message that family violence and child abuse are unacceptable.
We also note that the new Act will strengthen obligations on advisers, including legal practitioners, to ensure that parties are asked to consider the safety of their children as a priority at an early stage of discussions.
Family law is the most fraught of all the areas of practice. According to the Attorney General, more than half of the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent.
LIV submission expressed concerns
In our submission on the review of the Bill , the LIV expressed concern that the definition contained in the Bill was too wide and has the potential to be open to misuse as it would potentially include situations which would not ordinarily be considered family violence ie a spouse repeatedly denigrating the other spouse on bad cooking skills. Previously this behavior may have constituted harassment or torment.
Obligations to file a Notice of Family Violence with the Court
The LIV generally supports the new section 67ZBA which requires parties to proceedings who allege a risk of family violence to file a Notice of Family Violence with the Court.
However, the LIV believes that every allegation of past family violence should not be brought to Court’s attention as it may lead to further acrimony between the parties as the allegations may be irrelevant, and only unnecessarily lengthening proceedings. We believe that the Court should be notified of any current risks of family violence.
Friendly parent provisions
The LIV does not support the repeal of S.60CC(4) and (4A) which required the Court to consider the extent to which each parent has fulfilled the opportunity to participate in making decisions about major long term issues relating to the child and to spend time and communicate with the child.
The LIV believes the Court must be informed of circumstances where the parties have fulfilled or failed to fulfill responsibilities as a parent ie paying child support.
Where allegations of family violence are made or there is a history of family violence, the parent may have sought professional help and rectified the behavior. We believe it is imperative that the Court be aware of this development when it makes its decision.
The LIV believes that all the relevant circumstances of the parties should be considered by the Court when it decides whether it is in the best interest of the child to live with or spend time with or communicate with the other party.
Further information about the changes is at www.ag.gov.au/familyviolenceact.
Will these changes affect your practice? Comment here.