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Safer but not yet safe: Reducing the risks of violence in children's matters

Feature Articles

Cite as: March 2013 87 (3) LIJ, p.48

Changes to the law on the relevance of family violence determined under the Family Law Act 1975 are welcome, but may not fully protect women and children.

By Dr Renata Alexander

In the past few years there have been numerous reports, reviews and research studies about family violence in Australian society and the relevance of family violence to the Family Law Act 1975 (Cth) ( FLA). 1 The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ( FVA) was passed by federal Parliament on 7 December 2011 to address some of these issues in parenting disputes. Most of the amendments commenced operation on 7 June 2012.

Before examining the actual changes to family violence and child abuse provisions under the FLA, it is important to give a brief history leading up to these changes.

Background

There have been provisions in the FLA addressing family violence (and, to a far lesser extent, child abuse) since the Act commenced operation in January 1976. Major changes were introduced under the Family Law Reform Act 1995 ( FLRA) in 1996 and under the Family Law Amendment (Shared Parental Responsibility) Act 2006 ( FLAA). It is estimated that over half of all children’s matters (as well as some property cases) involve allegations of child abuse and/or family violence, and it is difficult for practitioners and parties to navigate their way through the FLA. 2

A definition of child abuse was not inserted into the FLA until 1991. This was a very restrictive definition, which appeared to focus on child sexual abuse or sexual activity that involved a power imbalance. Case law broadened this definition to include physical, emotional and sexual abuse of children as well as neglect. 3

In 1996, a definition of family violence was inserted into s60D(1). This was a broad definition that applied to actual or threatened conduct towards a person or property that caused fear or apprehension. In 2006, the term “reasonably” was inserted – that is, a person must have “reasonably” feared for or “reasonably” been apprehensive about their personal wellbeing or safety. There were no definitions or criteria in the FLA to assist the court to determine what “reasonable” entailed.

Also in 1996, the FLRA introduced a new s60B that set out objects and principles underlying Part VII of the FLA. In 2006, s60B was expanded to include two new objects of ensuring that children have the benefit of the meaningful involvement of both their parents and of protecting children from physical or psychological harm.

Also in 2006, the new s60CC introduced a two-stage process as to how to determine best interests. There are two “primary considerations” listed in s60CC(2):

(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.

Then s60CC(3) listed 13 “additional considerations”, including (c) 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 (the “friendly parent” provision) and (k) any contested or final family violence order.

Finally, it is worth noting the history of the costs provision. The general principle enshrined in s117 of the FLA is that “each party to proceedings under this Act shall bear his or her own costs”. Sections 117(2) and (2A) provide that the court may make a costs order if “the court is of the opinion that there are circumstances that justify it in doing so”.

In 2006, a controversial provision was inserted. Section 117AB provided that “where the court is satisfied that a party to proceedings knowingly made a false allegation or statement in the proceedings, then the court must order that party to pay some or all of the costs of another party, or other parties to the proceedings”. 4

The latest changes

Child abuse

Pursuant to the new definition in s4(1) of the FLA, “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 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 being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

The term “exposed to family violence” in s4(1)(c) and elsewhere in the FLA is defined in new s4AB(3) as meaning “if the child sees or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) then lists five examples of situations that may constitute a child being exposed, including overhearing threats of death or personal injury; seeing or hearing an assault; comforting or providing assistance to a family member who has been assaulted; cleaning up a site after property has been intentionally damaged, or being present when police or ambulance officers attend. These examples on their own do not constitute “abuse” of a child and there is still a need to establish exposure to “family violence” (see below).

This is an excellent amendment. It now formally incorporates different types of child abuse as recognised in case law and research, 5 and as defined in our state welfare/child protection legislation. 6 It also gives examples of what comprises exposure to family violence. There is, however, no definition of “serious”, and this will be a matter of evidence and fact-finding.

In practice, if alleging child abuse, it is essential to particularise details of allegations of both past incidents and any ongoing risk, rather than just making sweeping generalisations. It is mandatory to file and serve a notice in the prescribed form (see ss67Z(2) and 67ZBA(3)).

Family violence

There is a new definition of family violence. Section 4AB(1) defines “family violence” as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

Section 4AB(2) sets out examples of behaviour that may constitute family violence, including (a) an assault; (b) a sexual assault or other sexually abusive behaviour; (c) stalking; (d) repeated derogatory taunts; (e) intentionally damaging or destroying property; (f) intentionally causing death or injury to an animal; (g) unreasonably denying the family member financial autonomy; (h) unreasonably withholding financial support needed to meet reasonable living expenses when the family member is entirely or predominantly dependent on the person for financial support; (i) preventing the family member from making or keeping connections with their family, friends or culture; or (j) unlawfully depriving the family member of their liberty.

This is an excellent definition. It is largely based on the definition of family violence in the Family Violence Protection Act 2008 (Vic) ( FVPA), 7 and on the approach set out in the Family Court’s Best Practice Principles. 8 It covers a broad range of behaviours involving children and adult family members and addresses findings in social and medical science research about family violence and its ramifications.

This new definition does not mean that any incident of abuse or denigration will constitute violence.

These examples do not constitute family violence on their own. There still needs to be violent, threatening or other behaviour that is coercive or controlling or that causes fear. In practice, this means that solicitors need to particularise details of alleged past family violence incidents and any ongoing risk, and not simply rely on one of the examples given. Adducing evidence of calling the police or other crisis assistance and/or seeking medical attention may be useful corroboration but is clearly not essential (and may not be available, given that family violence often occurs literally “behind closed doors”). It is mandatory to file and serve the relevant notice (see s67ZBA(2)).

Similarly, material refuting alleged family violence needs to particularise details from the respondent’s standpoint. At trial, allegations on both sides will be tested.

Objects and principles

There is an additional object stated in s60B: namely, “to give effect to the Convention on the Rights of the Child”. 9

This is not controversial and merely restates the commitment of domestic law to furthering the purposes of the Convention.

Best interests and considerations

There is a new s60CC(2A) remedying any inconsistency or conflict between the two primary considerations listed in s60CC(2). Section 60CC(2A) now provides that 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)”.

The intention of this provision is good. The new provision attempts to prioritise the right of the child to be protected from harm over the need to have a relationship with an abusive parent. However, whether this will be reflected in practice is yet to be seen, given the practical difficulties of abused children often expressing a desire to maintain contact with an abusive (or otherwise inappropriate) parent as long as they are safe. In such cases supervision is often ordered and these changes do not necessarily mean any change to that course.

There are other changes to the additional considerations in s60CC(3). First, the “friendly parent” consideration in s60CC(3)(c) has been repealed. It is replaced with a consideration as to the extent to which each parent has been involved with the child and in decision making about the child. This is a good amendment and overcomes the tension for a parent (usually the mother) endeavouring to protect a child by refusing or restricting time with an abusive parent. The new para (c) incorporates existing s60CC(4) into the list of additional considerations and restates the relevance of the history of care-giving.

The other change to the additional considerations in s60CC(3) is the new para (k) that a court may make inferences and take into account any state family violence order and any circumstances, evidence and findings relevant to that order. This is a useful provision. State protection orders are often referred to in FLA proceedings, and the court can now formally take into account the details of those orders and any findings or transcripts. Although this is wider than the previous wording, it will be a question of weight. If an intervention order has expired, then there must be evidence of ongoing or current risk. If there is a current ex parte intervention order, then the practitioner needs to emphasise that no findings of family violence have been made but that an order was granted purely on the basis of one party’s untested evidence.

Costs

Section 117AB has been repealed.

This is appropriate. This provision received sustained criticism for diluting the significance of family violence and child abuse and for acting as a disincentive for victims (mostly women) and caregivers of abused children (mostly mothers) to report abuse or risk of abuse. It enables decision makers to focus on the best interests of the child rather than expend time and resources on punishing parties.

Additional obligations

There are new provisions that relate to state child protection/welfare law (the Department of Human Services (DHS) in Victoria). New s60CH provides that if a party to proceedings is aware that the child in question (or any other child who is a member of the child’s family) is under the care (however described) of a person under state child welfare law, then that party must inform the court of that matter. If someone else who is not a party has that information, then they may inform the court. In a similar vein, new s60CI provides that if a party to proceedings is aware that a child is or was a subject of a notification or report to a state welfare agency or the subject of an investigation, then that party must inform the court. Again, a person who is not a party may inform the court.

Already practitioners subpoena DHS files when DHS has been involved at any level, so this amendment may have little impact. It may, however, lead to more s91B orders (requests to DHS to intervene).

In addition, new s67ZBA provides that if an “interested person” in proceedings alleges that there has been family violence by one of the parties, or that there is a risk of family violence, then that party must file the relevant notice. “Interested party” is defined to include a party to the proceedings and an Independent Children’s Lawyer.

There is also an expansion of an adviser’s obligations when giving advice or assistance in relation to children under s63DA. New s60D requires advisers to inform parties that the best interests of a child are the paramount consideration and to encourage parties to act on that basis. Parties must be advised that protecting a child from harm is to be given greater weight than promoting a meaningful relationship with both parents. An adviser includes a legal practitioner, a family dispute resolution practitioner and a family consultant. This change means parties are to receive more specific legal information.

Conclusion

Some of these amendments are excellent. Some are quite complex, involving several steps and thresholds. The reforms need to be tried and tested and hopefully accompanied by well-resourced and comprehensive education and training for all key players in our family law system. 10

It would be unfortunate if practitioners and judicial officers treated the FVA as a potential minefield for unnecessarily prolonged and costly adversarial proceedings, when the clear objective is to protect families from family violence.



DR RENATA ALEXANDER is a Victorian barrister practising predominantly in family law and family violence cases. She is a senior lecturer in the Faculty of Law at Monash University and author/co-author of three books on family law and family violence.

1. For example, see R Chisholm, Family Courts Violence Review (Canberra, 2009); Family Law Council, Improving Responses to Family Violence in the Family Law System: An advice on the intersection of family violence and family law issues (Canberra, 2009); R Kaspiew et al, Evaluation of the 2006 Reforms (Melbourne, 2009); and ALRC and NSWLRC, Family Violence: Improving legal frameworks (Sydney, 2010).

2. See T Brown and R Alexander, Child Abuse and Family Law (Allen and Unwin, 2007), and L Laing , No Way to Live: Women’s experiences of negotiating the family law system in the context of domestic violence (University of Sydney, 2010).

3. See R Alexander, “Moving forwards or back to the future? An analysis of case law on family violence under the Family Law Act 1975 (Cth)” (2010) 16:2 UNSW Law Journal Forum, pp63-76.

4. Case law expanded the term “statement” to include false denials and stated that the higher standard of proof pursuant to s140 of the Evidence Act 1995 (Cth) was to be applied. Case law also suggested that “knowingly” meant that the party must be shown to have deliberately misled the court rather than just making the allegation recklessly or without belief.

5. For example, see K Richards, Children’s Exposure to Domestic Violence in Australia (Australian Institute of Criminology, 2011).

6. Section 162 of the Children, Youth and Families Act 2005 (Vic) sets out different grounds for when a child is in need of protection, including physical harm, sexual abuse, emotional or psychological harm and failure to provide basic care.

7. See C Horsfall, “Intervention orders and personal rights” May 2012 LIJ, pp62-3.

8. Family Court of Australia, Best Practice Principles for Use in Parenting Disputes when Family Violence or Abuse is Alleged (2011).

9. Australia ratified the Convention in 1990.

10. Although prepared before these changes, both the Best Practice Principles (note 8 above) and the Law Council of Australia’s Best Practice Guidelines for Lawyers Doing Family Law Work (2nd edn, 2010) are useful resources.

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