New Family Violence Act implications for legal profession

Law Institute Victoria

New Family Violence Act implications for legal profession

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.

Comments

	Michael Holcroft
	Dear Christopher, Thank you for comments mentioning the important repeal of the old s. 60CC(3)(c). The heading in the President's blog a was a little misleading because the provision you refer to is the one known as the "friendly parent provision" which indeed has been repealed. The Law Institute is supportive of this, as the provision put pressure on people to encourage contact between their children and the other party, whose violence they may have feared, because of the obligation on the court to consider a parent's willingness to encourage a relationship with the other party under this provision. As you mention, the major part of the repealed subsection 60CC(4) has been re-enacted but in a way that puts less "pressure" on a parent in the Law Institute's view to foster inappropriate time in the presence of the other party. On reflection, we should have stated that we had no objection to the re-enactment of the major part of s. 60CC(4), but were concerned that the proviso in ss. (4A), which emphasises that changed circumstances since separation must be taken into account, has been lost in the repeal. Thank you again for your helpful comments. Please email me at president@liv.asn.au & we will send you a $75 book voucher from the LIV bookshop to assist with your future studies. Regards, Michael
	13/06/2012 9:21:27 AM

	Patmalar Ambikapathy
	The President's blog raises relevant arguments but I respectfully suggest that research and logic indicate that past events are a good predictor of current propensity and future possibilities that are not mere parobabilities, ie past events of family violence are just as important as past therapy received by a perpetrator. Repeal of the frendly parent provision is appropriate as it was not child centered. Allowing evidence of self centred parenting does not necessarily reflect on what is in the best interests of the child. Specifcc poor parenting pratices like failure to make child support payment are relevant but not self-serving allegations by either parent. Once there is evidence of family dysfuntion filed in Court, it is encouraging to see that the new provisions seek to minimise risk of damage to a child's well being health and safety. All steps that can be taken must be taken to minimise harm of the risk of harm so that there is no intergenerational transfer of behaviours that fall within the spectrum of violence. This includes belittlings and harassment. I congratulate the Prime Minister and the Attorney General, both women lawyers who have taken steps to remedy the harm done to children by the ill advised amendments made by the former Howard government. Patmalar Ambikapathy Barrister
	13/06/2012 8:37:59 AM

	Christopher Lum
	Hi there, I am a student just studying up for my Family Law exam at the moment, and thought I would point out that while s 60CC(4) was repealed, part of it has been re-enacted as the new s 60CC(3)(c) (which used to be the friendly parent provision that has been repealed). The Court is still required to take into consideration the extent to which each parent has taken or failed to take the opportunity to participate in decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child, as well as the extent to which they have fulfilled their obligations in relation to the child. This information can be found in the amending Act pending the publication of an updated consolidated Act.
	11/06/2012 9:00:44 PM