Family Law Amendments will make welfare of children the primary concern

The Howard Government got it wrong on shared parenting and the protection of children. In 2006, without any social research and in a knee jerk reaction to the urgings of a vocal minority of men’s groups, the Howard Government made sweeping changes to the Family Law Act (‘the Act’) in parenting matters.

By elevating the rights of parents above the need to protect children, the Howard Government fettered judicial discretion and created a legislative pathway fixated on shared parenting.

The changes have been much criticised in reports such as the:

• Family Courts Violence Review by Professor Richard Chisolm AM.
• Australian Institute of Family Studies - Evaluation of the 2006 family law reforms.
• Family Law Council - Improving Responses to Family Violence in the Family Law System.

A culture of expectation developed that it was worthwhile for children to continue regular contact with a parent - even if it meant exposing that child to abuse, neglect and family violence.

Time and again parents felt compelled to agree to contact arrangements for fear of running foul of the friendly parent provision imposed by the 2006 changes.

The task confronting any Court where allegations are made is daunting - more so in the pressure cooker of an interim hearing usually shortly after separation and without the benefit of detailed affidavits or cross examination.

The ramifications of terminating all contact between parent and child can be many and long term.

But the balance needs to be restored in favour of the protection of children.

It is restored by the amendments to the Act contained in the proposed Family Law Amendment (Family Violence) Bill 2010 ("the Bill") released by Attorney-General Robert McClelland on the 11th November 2010. Public consultation is open until 14th January 2011.

The Bill incorporates, for the first time, the UN Convention on the Rights of the Child - compelling the Court to consider the Convention in deciding matters concerning children.

The Bill elevates the primary consideration of protecting a child from abuse, neglect and family violence over the benefit of having a meaningful relationship with a parent where there is an inconsistency.

The Bill broadens the definition of "family violence" in tune with community perceptions and understanding to include not just actual or threatened physical or sexual assault but harassment, emotional manipulation, financial abuse, cultural, familial and friendship isolation and a range of dominating and controlling behaviours. The Bill expands the protection of children by expanding the definition of "abuse" and improving obligations on Court personnel (and independent childrens’ lawyers) to report child abuse to state and territory departments of child safety.

"Abuse" will now include "serious psychological harm" including harm caused by exposure to family violence.

The Bill imposes obligations on those involved in Family Law disputes (including lawyers and counsellors) to give advice to parents to consider the child’s best interests as the paramount consideration and prioritising child protection.

The Bill overcomes the reluctance of many parents (and their lawyers) to report family violence for fear of being "unfriendly" to child contact with the other parent and thereby at a disadvantage in parenting proceedings.

The "friendly parent" provisions are revoked - meaning that children are less likely to be at risk of exposure to abuse, neglect and family violence.

Mandatory Cost Orders in certain circumstances which have been a disincentive to the reporting of family violence and child abuse are removed and a new immunity from Costs Orders is afforded to those state and territory child protection authorities which intervene in parenting proceedings.

New mandatory Notices of Child Abuse or Family Violence are required to be filed in Courts and Courts are required to act promptly on allegations.

These proposed reforms will make a difference.

Family violence and child abuse are unacceptable and cannot be tolerated. Protection of our children should be front and centre in all proceedings in the Family Law jurisdiction.

The balance would be back with this Bill. Once again the best interest of the child as the paramount consideration would be the focus - and a future free from abuse, neglect and family violence a real prospect for all Australian children.