Throughout the inquiry, the majority of participants expressed support
for the Bill's stated objective, that is, to provide better protection for
children and families at risk of violence and abuse.
However, submitters and witnesses expressed a diverse range of views about the
proposed amendments, and provisions in the Act relating to equal shared
This chapter discusses the key issues, including:
- addition of the Convention on the Rights of the Child as a new
object of Part VII of the Act;
- primary considerations in determining a child's best interests;
- additional considerations of:
- the 'friendly parent' provisions; and
- family violence orders;
- new definitions of 'abuse' and 'family violence';
- provision of information to the Family Court of Australia by
- obligation of advisers to prioritise the safety of children;
- judicial duty to take prompt action in relation to allegations;
- judicial duty to inquire into abuse, neglect and family violence;
- repeal of the mandatory costs orders provision;
retrospective effect of the application provision in item 45 of Schedule 1;
- resourcing implications for the Family Court of Australia;
equal shared parental responsibility; and
- need for a public education campaign about the Bill's proposed
Addition of the Convention on the Rights of the Child as a new object of
Part VII of the Act
Proposed new subsection 60B(4) adds as an additional object of Part VII
of the Act the Convention on the Rights of the Child (Convention) 'done' at New
York on 20 November 1989.
Submissions commented briefly on this amendment, some expressing support
for the proposed provision and others opposing its inclusion in the Act.
Associate Professor Juliet Behrens and Professor Belinda Fehlberg, for example,
welcomed proposed new subsection 60B(4) but noted that further legislation
would be necessary to fully implement the Convention.
The Women's Legal Centre (ACT and Region) considered it important for
the Australian Government's international commitment to promote the best
interests of children to 'be included in legislation [which] has such a
profound impact on children'.
As a minor matter of style, the Australian Law Reform Commission (ALRC)
[Proposed new subsection 60B(4)] be amended so that the
current reference to [the Convention] being 'done' in New York on 20 November
1989 is replaced with a reference to it being 'opened for signature' or words
to similar effect.
In response to this suggestion, the Attorney-General's Department
[P]roposed subsection 60B(4) reflects the wording of the
Convention's formal attestation as well as the drafting practice of the Office
of Parliamentary Counsel for referring to international instruments.
Primary considerations in determining a child's best interests
Proposed new subsection 60CC(2A) inserts the following provision into
(2A) If there is any inconsistency 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).
In general, submitters agreed with the principle underpinning the proposed
amendment, that is, the prioritisation of the protection of children from physical
or psychological harm.
However, several submitters questioned the way in which the Bill seeks to give
effect to this principle. The two main arguments concerned the practical application
of the proposed provision and the wisdom of a two-tiered approach to
determining what is in a child's best interests.
Professor Richard Chisholm, author of one of the reports on which the
Bill is based,
supported proposed new subsection 60CC(2A) but argued that it will not solve the
current problems in balancing the two primary considerations. In addition,
Professor Chisholm identified the following application problems:
The decision-maker still needs to decide whether a consideration
is 'primary' or merely 'additional', and decide what special weight, if any,
should be given to the former. With the new (2A), the decision-maker will also
have to decide whether there is an inconsistency between (2)(a) and (2)(b). If
there is, 'greater weight' must be given to paragraph (b)–but how much greater?
These may not be insuperable difficulties, but the proposed (2A) seems certain,
unfortunately, to increase the amount of complication and technicality relating
to determining what is best for children.
In a similar vein, the Family Law Council remarked:
[Proposed new subsection 60CC(2A)] assumes that the core
failing of section 60CC is the relative weighting given by the courts to the
primary considerations. Council considers this fails to recognise the broader
problems associated with the two-tiered construction of section 60CC identified
in the research reports. In Council's view, the addition of proposed subsection
60CC(2A) will not be adequate to challenge the present misperceptions of the
law, and may add a further level of complexity to the process of decision-making.
Professor Chisholm suggested that, if the proposed provision is to
remain in the Bill, one layer of legislative complexity could be eliminated
from section 60CC by redrafting proposed new subsection 60CC(2A) to eliminate
the need for a determination of inconsistency between paragraphs 60CC(2)(a) and
60CC(2)(b). Professor Chisholm stated that the following proposal suggested by Ms
Donna Cooper in a 2011 journal article merited careful consideration:
(2A) That when applying the considerations set out in
subsection (2), the court is to give greater weight to the consideration set
out in paragraph (2)(b).
Associate Professor Behrens and Professor Fehlberg preferred section
60CC to indicate that the overriding consideration in determining a child's
best interests is the safety and protection of children from harm caused by
family violence, neglect and abuse (effectively paragraph 60CC(2)(b)). In their
view, proposed new subsection 60CC(2A) 'suggests that violent and abusive relationships
can be meaningful and that children can benefit from them'.
Dr Lesley Laing, a senior lecturer at the Faculty of Education and
Social Work at the University of Sydney and a published author in the area of domestic
The safety and protection of children should be prioritised
above all else. Its priority should not be subject to proving an 'inconsistency'
with other considerations.
Instead of redrafting proposed new subsection 60CC(2A), some submitters
advocated either amending current subsection 60CC(2) or abandoning the
distinction between current subsections 60CC(2) and 60CC(3) (the primary and additional
considerations, respectively, for determining a child's best interests) as a
means of achieving the Bill's objectives.
For example, Associate Professor Helen Rhoades and Professor John Dewar
[T]he Government's aims would be better achieved by removing
the demarcation between the two tiers of factors in section 60CC to create a
single list of matters in which the safety of children is listed as the first
consideration and given priority.
A number of submitters agreed, the common viewpoint being comprehensively
expressed by Women's Legal Services Australia as follows:
There should be no primary considerations at all but one list
of factors for consideration:
- where the safety and protection of children is listed as the first consideration and given priority;
- that having a meaningful relationship be listed as one of the many
- that the courts should weigh up all of the factors on the list depending
on the circumstances of each individual case.
If primary considerations are retained, there should only be
one primary consideration which should be the safety and protection of
If neither of those options are accepted, at a minimum, the
proposed subsection 60CC(2A) should be redrafted as follows:
In applying the considerations set out in subsection (2),
the court is to give greater weight to the consideration set out in paragraph
Domestic Violence Victoria, the Domestic Violence Resource Centre
Victoria, the Federation of Community Legal Centres Victoria, Women with
Disabilities Victoria, and the Victorian Women's Trust favoured the second option
identified by Women's Legal Services Australia. Their joint submission emphasised
the pre-eminence of a child's right to safety:
[T]he present Act, in its emphasis on shared parenting, often
leads to contact orders that are inconsistent with expert knowledge about child
development. Worse, where family violence is present, a child's right to safety
can often come second. In practical effect, the Act currently tends to
prioritise the first principle of meaningful involvement with each parent [paragraph
60CC(2)(a)] at the expense of children's and women's rights to safety
[paragraph 60CC(2)(b)]. The framing of these criteria takes the focus away from
the best interests of the child, and places the emphasis on parental rights.
Family Relationship Services Australia also supported the need for current
subsection 60CC(2) to place greater emphasis on a child's rights. However, its
support was conditional on the child concerned being involved in the decision-making
Research by Mudaly & Goddard (2006) emphasises the
importance of giving children and young people who have experienced abuse or
neglect by a parent the opportunity to tell their story and participate in decisions
about whether to maintain the relationship, albeit with appropriate safety
precautions. For some children, maintaining their relationship with a parent
who has been violent or abusive can be very important to the child's sense of
identity and healing.
A representative from the Department reiterated that proposed new
subsection 60CC(2A) is based on several reports concerning the way in which the
family law system responds to violence. A common theme in these reports is that
unsafe parenting arrangements are still being made in respect of some families.
The key piece of evidence cited by the Department was the findings of the Australian
Institute of Family Studies in an evaluation of the 2006 family law reforms. Of
particular note was that '[a]round one in five parents reported safety concerns
associated with ongoing contact with the child's other parent'.
Accordingly, the Department's brief in preparing the Bill was:
to come up with legislation that would prioritise the safety
of children without winding back the shared care reforms. This is the balance
that has been achieved to prioritise the safety of children without undermining
the ability of children to have a meaningful relationship with both of their
parents where that is safe.
Additional consideration of the 'friendly parent' provisions
Many submitters supported the repeal of the facilitation aspect of the 'friendly
parent' provisions (current paragraph 60CC(4)(b)) on the grounds that it
discourages disclosures of family violence and child abuse.
However, as observed by the Department, 'there are competing
considerations with regard to the retention or removal' of current paragraph
Some inquiry participants did not support proposed new paragraph 60CC(3)(c),
which re-enacts current paragraphs 60CC(4)(a) and (c) but not paragraph
60CC(4)(b). The two main reasons for this lack of support were the potential
application of the proposed provision and the continuing relevance of the 'friendly parent' provisions.
Opposition to removal of the
'friendly parent' provisions
In relation to the first argument, the Family Law Practitioners
Association of WA, for example, submitted that proposed new paragraph
60CC(3)(c) does not take into account 'the potential, and capacity, of one
parent to thwart the other's ability to take up the opportunities outlined'. The
Family Law Practitioners Association of WA suggested redrafting the proposed provision
(c) the extent to which each of the child's parents has facilitated
the other taking, and has themselves taken, or failed to take, the
An example of a potentially inequitable application of proposed new
paragraph 60CC(3)(c) was cited by the Australian Association of Social Workers.
Its submission described the situation where a violent parent has obtained
primary care of a child and a victim parent has been denied contact with that
We recognise that in such situations, the parent who is the
victim of violence is in a powerless position as the cycle of control and
coercion continue[s] to be perpetuated by the violent parent. This then can
create unfair and unintended consequences as the victim is deemed to have 'failed'
in their duties as a parent, without consideration of the complexity of the
Another three submitters argued that repealing the 'friendly parent'
provisions rewards those parents who actively prevent non-resident parents from
having contact with their children.
The Hawkesbury Nepean Community Centre, among others, expressed
particular concern with how proposed new paragraph 60CC(3)(c) might be applied
in cases where a parent has restricted contact as a means of protection, rather
than with malicious intent.
The Council of Single Mothers and their Children and The Benevolent Society,
shared this concern, as did the Women's Legal Service Queensland who submitted:
[T]he proposed provision will still be used against women in
domestic violence cases, where the mother will be forced to explain why she has
chosen to limit her communications with the other parent about long-term
decisions, spending time or communicating with the child or maintaining the
child, when in fact the mother is acting to protect the child.
A representative of the Council of Single Mothers and their Children contemplated
that 'it would be understandable that the parent would not be required to
facilitate the relationship' where family violence allegations had been made.
In its view, proposed new paragraph 60CC(3)(c) should be amended to clearly
refer only to a parent's personal efforts regarding their relationship with,
and obligations to, a child.
Continuing relevance of the
'friendly parent' provisions
In relation to the argument that the 'friendly parent' provisions remain
a relevant consideration, the Joint Parenting Association argued that it is
good parenting for one parent to foster and maintain a child's relationship
with a non-resident parent:
The removal of the factor regarding the willingness of each
parent to encourage the child's relationship with the other parent moves in the
opposite direction from comparable overseas jurisdictions and flies in the face
of solid research about the importance of parents encouraging the child's
relationship with both parents. Helping the child maintain a positive relationship
with the other parent when the parents live apart from each other is considered
a sign of good parenting, just as encouraging the child to achieve in school is
a sign of good parenting. It falls within the category of meeting a child's
emotional needs, which is one factor that courts consider in fashioning the
parenting decree and the repeal of s60CC(3)(c) is not supported.
FamilyVoice Australia likewise submitted:
This valuable provision [current paragraph 60CC(3)(c)]
encourages each parent of a child to cooperate with the other parent to serve the
best interests of the child in accordance with the objects and underlying
principles of the Act set out in [section] 60B.
The Non-Custodial Parents Party (Equal Parenting) concurred, submitting
that proposed new paragraph 60CC(3)(c) 'reveals a diminished view of the
importance of maintaining a healthy relationship between both parents and the
The Caxton Legal Centre acknowledged that the 'friendly parent'
provision could unduly affect victims of family violence attempting to protect
themselves and their children, and parties who, through no fault of their own
or due to the actions of the other party, have lost contact with the other
parent. Its submission suggested:
At the risk of burdening judicial officers with overly
prescriptive legislative pathways, it is recommended that a parent's
willingness and ability to facilitate children's relationship with the other
parent be retained as a consideration in determining the best interests of a
child, provided that, if the relationship has not been facilitated,
consideration be granted to the reasons for this, including child abuse or
At the public hearing, the Deputy Chief Justice of the Family Court of
Australia, the Hon. John Faulks (Deputy Chief Justice) commented on the
'friendly parent' provisions as follows:
[T]he difficulty is that you have a section that would appear
to be substantially aspirational, in the sense that it sets out a principle
which would seem logically supportable by almost everyone involved in the
family law system. It may be having consequences–which are at present
undocumented but which are said to exist–which would be undesirable. If you
choose to abolish the section to overcome those suggested consequences, it may
send a message that is different from the aspiration that was previously
The Department noted the importance of facilitation in separated families
where parents are able to agree on parenting arrangements and families where
safety is not a concern, but stated:
The benefits of retaining the 'facilitation' aspects of the
'friendly parent' provision are outweighed by the importance of protecting
children from harm.
The Department further noted that current paragraph 60CC(3)(m) allows
the Family Court of Australia to take into consideration 'any other fact or
circumstance which the court thinks relevant'. The Department suggested that
the Explanatory Memorandum could be revised to state that the repeal of any
paragraph is not intended to restrict the matters to which the court may have
regard under paragraph 60CC(3)(m).
This means that paragraph 60CC(3)(m) would continue to allow the court to have
regard to 'facilitation' as an additional consideration.
Additional consideration of family violence orders
Proposed new paragraph 60CC(3)(k) requires the court to have regard to any
family violence order that applies to a child or a member of the child's
The Family Law Council supported the proposed amendment. Its submission
argued that proposed new paragraph 60CC(3)(k) removes an unnecessary
distinction between particular types of orders (interim/final, contested/consensual)
and enables the court to consider all relevant matters in determining the best
interests of the child:
Council is aware of the history of this provision and
arguments that family violence orders are used to gain a strategic advantage in
family law proceedings. However, evidence of family violence orders is relevant
in determining safe parenting arrangements for the child.
It is important when assessing future risk that the court is
able to consider all of the relevant information about the history of the parents'
relationship, including past family violence orders.
Associate Professor Behrens and Professor Fehlberg drew attention to an
apparent contradiction between the word, 'any', and the word, 'applies', in
proposed new paragraph 60CC(3)(k) in that the word 'applies' might:
result in the exclusion of information about orders that are
no longer in place, which may be of relevance in determining possible risk to
the child and understanding the type of parenting provided to a child and the
nature of the relationship between the child's parents.
Although there was some debate concerning the inclusion of past family
violence orders, the main point of contention was whether proposed new
paragraph 60CC(3)(k) should refer to family violence orders themselves or the
factual circumstances giving rise to those orders.
In 2009-2010, the ALRC and NSWLRC conducted a major inquiry into
family violence throughout Australia.
The inquiry examined the practical interaction between the Act and state and territory
family violence and child protection laws, along with relevant federal, state
and territory criminal laws.
In the course of its joint inquiry, the ALRC and NSWLRC examined current
paragraph 60CC(3)(k) and ultimately recommended that the paragraph be amended
Recommendation 17-1 The 'additional consideration' in [section]
60CC(3)(k) of the Family Law Act 1975 (Cth), which directs courts to
consider only final or contested protection orders when determining the best
interests of a child, should be amended to provide that a court, when
determining the best interests of the child, must consider evidence of family
violence given, or findings made, in relevant family violence protection order
The ALRC reiterated Recommendation 17-1 in its submission to this
However, at the public hearing, the ALRC conceded that an alternate proposal
put forward by Professor Chisholm 'captures very well the gist of the idea that
the ALRC was putting forward'.
In a supplementary submission, Professor Chisholm described current and
proposed new paragraph 60CC(3)(k) as having an underlying problem. In his view,
family violence orders themselves are an item of evidence, not a consideration
or factor. Accordingly, family violence orders do not belong in subsection
60CC(3). In addition, Professor Chisholm noted that there is a problem with the
drawing of inferences from family violence orders: the making of a family
violence order does not tell the court anything about the evidentiary basis for
Professor Chisholm submitted:
If a family violence order has been made, it is important
that the family law court should know about it (section 60CF, appropriately,
requires parties to inform the court of such orders). It should be treated as
something that requires investigation, because it might well be an indicator of
violence. What the family law court wants, of course, is evidence about the
circumstances in which the order was made, and, most importantly, evidence
about whether there really was violence, and if so what was its nature. The law
should encourage people to provide that sort of evidence.
[P]aragraph (k) should be amended to read something like
(k) any relevant inferences that can be drawn from any family
violence order that applies, or has applied, to the child or a member of the
child's family, taking into account the nature of the order, the circumstances
in which it was made, any evidence admitted and any findings made by the court
that made the order, and any other relevant matter.
The Deputy Chief Justice and Justice the Hon. Steven Strickland from the
Family Court of Australia described Professor Chisholm's proposal as 'sensible',
but Women's Legal Services Australia was concerned with its complexity and
expressed a preference for a more straightforward approach:
Any relevant family violence order as applies to the child or
a member of the child's family [should be considered], including a
consideration of the circumstances in which the order was made.
When asked for its view on Professor Chisholm's proposed new paragraph
60CC(3)(k), the Department stated that the existence of current family violence
orders is directly relevant to concerns about a child's safety. Further, the
courts routinely 'look behind' family violence orders to consider their supporting
[Proposed new paragraph 60CC(3)(k)] arises from an objective
fact that has a real connection to protecting the child from harm and ensuring
the child's best interest. Retention of this factor does not constrain the
court from considering the circumstances in which the order was made or
apportioning certain weight in light of those circumstances.
Consistent with its earlier advice, the Department noted that the Family
Court of Australia could still have regard to past family violence orders under
current paragraph 60CC(3)(m).
New definitions of 'abuse' and 'family violence'
Submitters and witnesses provided the committee with considerable
commentary regarding the proposed new definitions of 'abuse' and 'family
Definition of 'abuse'
The Bill redefines 'abuse' in subsection 4(1) to read:
abuse, in relation to a child, means:
(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.
Many submissions supported a broader definition and understanding of
'abuse', including, in particular, exposure to family violence.
However, proposed new paragraphs (c) and (d) drew comment in relation to the
high threshold required by the inclusion of the word 'serious' and perceived inconsistencies
with other provisions of the Act.
The Law Council of Australia, for example, did not support the inclusion
of the qualifier 'serious' in proposed new paragraph (c):
Why should [psychological harm] be serious? How much
psychological harm is acceptable? Removal of the word 'serious' would not affect
the intent of the provision, as it would still be necessary to show that there was
harm caused by family violence, and that should be enough to amount to abuse of
Men's Health Australia similarly submitted:
The proposed changes define abuse, in relation to a child, as
meaning "causing the child to suffer serious psychological harm" or "serious neglect of the child" (our emphasis). We would
argue that any psychological harm or neglect of children should be
considered child abuse. Why does the government believe that only "serious" psychological abuse or neglect should be defined as child abuse, while physical
assault and sexual abuse are defined as child abuse whatever their level of
The Family Law Council cautioned:
[A] message could be given to the general public that some
forms of child abuse are not serious, whereas Council's view is that any form
of child abuse – whether it be physical, emotional, psychological, sexual or
neglect – is serious and therefore if a qualifier is put in, there is a concern
some types of child abuse would become accepted in the community.
The Law Council of Australia also drew attention to the apparently
inconsistent use of the phrase 'serious neglect' in proposed new paragraph (d)
and the use of the term 'neglect' in other key provisions of the Act:
Given that the new definition of 'abuse' in relation to a
child encompasses assault, exposure to family violence and serious neglect, it
is difficult to understand why the court is directed to examine 'abuse, neglect
or family violence' [in other key provisions]. Given the broad definition of 'abuse'
the court should in each case seemingly only have to take into account 'abuse
and family violence' and [omit] the word 'neglect' (which is at odds with the phrase 'serious neglect' in the definition of 'abuse' and so contradictory).
The Department's response to these concerns was that the word 'serious'
has been included in the proposed new definition of 'abuse' to avoid
The aim is to ensure that child welfare authorities only
receive notification of serious cases of harm through exposure to family
violence and neglect. Removing the word 'serious' would expand the definition
to require a broader range of cases and may hinder these authorities from
identifying and dealing with serious cases of harm due to excessive reporting.
The Department agreed that the string of words, 'abuse, neglect or
family violence' is used in a range of provisions throughout the Act. However, the
Department told the committee that it is appropriate to retain references to the
word 'neglect' as that term encompasses a broader range of omissions than
The Department acknowledges that there is overlap in the
string of words, but notes that the overlap is incomplete and does not result
in total redundancy unless the word 'serious' is removed from the definition of
Meaning of 'exposed'
Proposed new subsection 4AB(3) defines the meaning of the word 'exposed'
in proposed new paragraph (c) of the new definition of 'abuse' in subsection 4(1):
(3) For the purposes of this Act, a child is exposed
to family violence if the child sees or hears family violence or otherwise
experiences the effects of family violence.
Examples of situations that might constitute a child being exposed to family
violence are non-exhaustively listed in proposed new subsection 4AB(4). Some
submitters considered that the examples, or threats, of physical violence
specified in proposed new subsection 4AB(4) might be interpreted in such a way
as to restrict the meaning of 'experiences the effects of family violence' in proposed
new subsection 4AB(3).
Women's Legal Services Australia, for example, warned:
Importantly, the proposed definition of exposure to family violence
does not recognise the broader impact on children just from living in a family environment
where their parent is the victim of family violence, in all its forms (as identified
in the proposed new definition of family violence).
[Women's Legal Services Australia] recommends that the definition
of 'exposure' to family violence include a specific reference to all the forms of
family violence as defined in proposed [new subsections 4AB(1) and (2)].
Definition of 'family violence'
Proposed new subsection 4AB(1) defines 'family violence' as follows:
(1) For the purposes of
this Act, 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.
Support for the new definition of
Many submitters and witnesses supported a new definition of 'family
violence' within the Act. Among these supporters was the ALRC, which, together
with the NSWLRC, recently examined the issue. In their 2010 report, Family
Violence – A National Legal Response, the ALRC and the NSWLRC made the following
Recommendation 6-4 The Family Law Act 1975
(Cth) should adopt the same definition as recommended to be included in state
and territory family violence legislation (Rec 5-1). That is, 'family violence'
should be defined as violent or threatening behaviour, or any other form of
behaviour, that coerces or controls a family member or causes that family
member to be fearful. Such behaviour may include but is not limited to:
(a) physical violence;
(b) sexual assault and other sexually abusive behaviour;
(c) economic abuse;
(d) emotional or psychological abuse
(f) kidnapping or deprivation of liberty;
(g) damage to property,
irrespective of whether the victim owns the property;
(h) causing injury or
death to an animal, irrespective of whether the victim owns the animal; and
(i) behaviour by the person using violence that causes a
child to be exposed to the effects of behaviour referred to in (a)-(h).
In submitting to this inquiry, the ALRC stated that the Bill substantially
implements the definition of 'family violence' recommended by it and the
NSWLRC. However, the ALRC, and other submitters, noted the omission and urged
the inclusion of exposure to family violence in the Bill's definition of
'family violence'. Further:
The definition of family violence should also clarify that a
child is exposed to the effects of family violence by the behaviour of the
person using family violence, and not due to the failure of the victim parent
to protect that child from such exposure.
Many submitters supported proposed new subsection 4AB(1) due to its breadth
and the removal of the objective test of 'reasonableness'.
In explaining the reasons for its support, the Victims of Crime Assistance
[W]hat may be acceptable as reasonable to a person,
professional, judge or magistrate as creating fear, on the evidence available,
will not, and cannot incorporate all that frightens a victim. Much of it is not
tangible, easily described. It is often the cumulative effect of many threats,
actual violence, etc and issues, generally over time. A [knowledge] of what
someone is actually capable of, from experience, a [knowledge] of what they are
really like when not 'on show', a [knowledge] about their reliability and
responsibility in practice, understanding the other's capacity for dishonesty,
manipulation...all feed into that intangible fear.
Opposition to the new definition of
However, there were submitters opposed to the amendment on precisely the
same grounds – its breadth and the lack of objectivity.
For example, the Family Law Practitioners Association of WA argued that
proposed new subsection 4AB(1) is over-inclusive:
The proposed definition is simply too wide and captures
behaviour that goes well beyond that which most members of the community would
define as "violence". The types of behaviour captured by the proposed
definition are, in our experience, engaged in to a greater or lesser degree by
one or both of the parties in the majority of relationship breakdowns and in
almost every matter before the Court.
Other submitters foreshadowed the potential misuse of the proposed
provision. Dads on the Air Australia, for example, considered that proposed new
subsection 4AB(1) facilitates the making of vexatious claims,
and the One in Three Campaign likewise argued:
Without [the element of reasonableness], anyone can claim to
be in fear or apprehension of their (ex-)partner without any reasonable
basis for this emotion.
The Non-Custodial Parents Party (Equal Parenting) identified, as a
further complication, the inability of a respondent to refute allegations of
[The new definition] will include any behaviour a party
claims makes them feel threatened 'irrespective of whether that behaviour
causes harm', or to feel unsafe. Such fears need not be reasonable but instead
are to be totally subjective, based only on the complainant's claimed state of mind.
The normal legal standard of the reasonable person test will not apply. Thus,
it will be almost impossible for an accused to refute such claims.
The Dads4Kids Fatherhood Foundation submitted:
These amendments are so broad that they may lead to the
resources of the court being misused to assess how the parents behaved towards
each other during the relationship, rather than examining the best interests of
the child into the future and the child's right to a meaningful relationship
with both of their parents. Children will suffer as a result.
General characterisation test
The Law Council of Australia also expressed concern with the capacity of
three examples listed in proposed subsection 4AB(2) to misdirect the Family
Court of Australia:
Three of the examples contain what might be described as
broadly framed scenarios that expand the concept of 'family violence' beyond
that which has traditionally been its focus. The concern is that this expansion
may lead the resources of the court being subsumed into an examination of
incidents in individual matters which do not constitute a long term pattern of
controlling or coercive behaviour.
Two of the examples mentioned by the Law Council of Australia – proposed
paragraphs 4AB(2)(g) and (i) relating to financial autonomy and financial
support, respectively – drew comment from some inquiry participants.
Professor Chisholm, for example, acknowledged that it is difficult to
deal with issues of financial dependency – such as proposed paragraph 4AB(2)(i)
– but that it is critical to bear in mind the 'filter' effect of proposed new
The critical thing is to look at those opening words in
subsection (1) that define what family violence is. If you have words like
'coercive' and 'oppressive' or whatever those adjectives are, one view is that
then it is okay to have the fairly open ended financial thing in the examples
because it is only going to be family violence if it falls within those strong
words of subsection (1). The main point I would make is that, if you read those
examples on their own, you might think that could include all sorts of stuff
that is not family violence but you have to read them together with the
definition in subsection (1) and so it is very important to get that right.
On this point, the Department noted the commentary contained in the
The Explanatory Memorandum to the Bill explains that 'the inclusion
of examples will not exclude any behaviour that is within the general
characterisation set out in [proposed new] subsection 4AB(1)'. The Department
is of the view that the provision includes a sufficient range of examples of
behaviour that were suggested at the Committee hearing would be caught under
[proposed new] subsection 4AB(1) where the behaviour fits within the general
Issue of over-inclusiveness
From a drafting perspective, Professor Chisholm considered that the
overall structure of proposed new subsection 4AB(1) is 'pretty good' but, in
his view, the opening words are over-inclusive:
Take the example of a family member who tells another family
member correctly that the house is on fire causing the second person to become
fearful. Obviously that is not family violence, as the house really is on fire.
But let us look at the [proposed new definition]:
For the purposes of this Act, 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.
If you focus on the 'other behaviour', you have got 'family
violence' means other behaviour – that is, behaviour – that causes a family
member to be fearful. So any behaviour that causes a family member to be
fearful literally really fits in with this definition.
Professor Chisholm suggested that proposed new subsection 4AB(1) could
be redrafted to read:
For the purposes of this Act, family violence means behaviour
by a person towards a member of the person's family that is violent,
threatening, coercive or controlling, or is intended to cause the family member
to be fearful.
At the public hearing, Professor Chisholm also referred to the 'interesting'
solution proposed by Professor Parkinson:
(a) Rewrite the opening words of the definition of family
violence in [subsection] 4AB(1) as follows:
"family violence means aggressive,
threatening or other such behaviour by a person that is intended to coerce or
control a member of the person's family (the family member), or
that causes the family member to be fearful".
Professor Parkinson's suggested approach incorporates an element of
intent to address the perceived ambiguity of the proposed phrase, 'coerces or
However, Women's Legal Services Australia argued against incorporating intent,
or any objective element, into the proposed new definition of 'family violence':
instead, there needs to be more of a connection between the element of fear and
the coercive or controlling behaviour. As one representative explained:
What Women's Legal Services Australia is really trying to do
by emphasising that connection between coercion and control, and fear,...is to
attempt to define and obtain a nuanced understanding of what is family
violence. As legal professionals working within the court system, we often see
cases where the court grapples to clearly define or understand what is family violence.
[W]e will not be opening up the floodgates [to vexatious or
malicious claims], because, if we do have a very nuanced understanding and
definition of family violence, there are certain guidelines and evidence that
each party would be required to present to the court through their practitioner
or in their capacity as self-represented litigants in order for the court to
determine that there is a risk of family violence.
An increase in vexatious and
Professor Chisholm told the committee that it would be hard, if not
impossible, to predict whether the proposed new definition of 'family violence'
will precipitate the making of vexatious and malicious claims:
The effect of this bill could easily be that there would be
more allegations of family violence and that there would be more detailed ones,
but that might be revealing real violence which has previously not been
attended to. Whether the Act would produce a new set of false claims, I could
not assert that it will not happen; other people cannot assert that it will
happen. It is actually very difficult to predict.
When questioned by the committee, other witnesses concurred with
Professor Chisholm's comments,
and Women's Legal Services Australia referred to 'the clear and succinct synopsis
of the research in this area' prepared and 'appropriately referenced' by Dr
Michael Flood, a sociologist at the University of Wollongong:
He concludes that child abuse allegations in the context of
family law proceedings have been researched in four Australian studies and have
- The allegations rarely are made for tactical advantage;
- False allegations are rare;
- The child abuse often takes place in families where there
is domestic violence;
- Any such allegation rarely results in the denial of
In relation to [the] myth about false accusations of domestic
violence and misuse of protection orders he again analyses the research
succinctly and concludes:
- The risk of domestic violence increases at the time of
- Most allegations of domestic violence in the context of
family law proceedings are made in good faith and with support and evidence of
- Women living with domestic violence often do not take out
protection orders and do so only as a last resort;
- Protection orders provide an effective means of reducing
women's vulnerability to violence.
In evidence, the Department informed the committee that the proposed new
definition of 'family violence' was a policy decision based on evidence and
closely aligned with the ALRC and NSWLRC recommendation in their 2010 report.
The Department did not consider the proposed new definition of 'family
violence' to be over-inclusive,
or that it would lead to an increase in vexatious or false allegations of
Further, the Department referred to amendments proposed by Mr Michael
Keenan MP in the House of Representatives,
noting the Attorney-General's response as follows:
The Government rejects any proposal that would require family
violence to be hinged on how a reasonable person might react in a particular
situation or what the violent perpetrator might have intended. To require
reasonableness or intent as a precondition to family violence is to take a
narrow approach to what is an insidious problem and would be particularly
concerning in the context of a controlling relationship.
Provision of information to the Family Court of Australia by third parties
Proposed new subsections 60CH(2) and 60CI(2) allow third parties to parenting
proceedings to inform the court of care arrangements under child welfare laws;
and to inform the court of notifications to, and investigations by, prescribed
state and territory child welfare authorities.
Submitters and witnesses commenting on these two provisions supported
their objectives – to indicate risks of harm to a child, to alert the court to
evidence relevant to a child's welfare and best interests, and to assist the
court in determining whether jurisdictional issues arise under section 69ZK of
However, some inquiry participants considered that the amendments will
not achieve their objectives. In their view, the proposed provisions will not adequately
ensure that the Family Court of Australia has better access to evidence of
abuse and family violence.
The Australian Family Association, Victoria Branch, for example, appeared
to suggest that proposed new subsections 60CH(2) and 60CI(2) should
specifically cover child protection and child welfare authorities:
It should be the relevant child protection and child welfare
authorities who present such information to the court, not just a 'person' who
is 'aware'. Immediately any allegation of abuse or family violence in relation
to a child is made all child protection and child welfare agencies should be informed
and asked to inform the court of any dealings with the child or any member of
the child's family.
Women Everywhere Advocating Violence Elimination went one step further
calling for 'an obligation on State Child Protective Services to provide any
files and reports to the Family Court'.
This view was shared by the Council of Single Mothers and their Children:
[I]f such care orders, notifications or investigations are
made known to the Family Court, child welfare authorities must then be required
to make available to the Family Court copies of files and orders pertaining to
the child. Similarly children's representatives and child welfare authorities
need to be required to give information to the Family Court.
National Legal Aid cautioned that there must be processes in place to obtain
copies of relevant orders, citing the current arrangements in Western Australia
as a practical example:
In Western Australia the Family Court of WA (FCWA) has
memoranda of understanding (MOU) in place with the Department of Child
Protection (DCP) and Legal Aid WA (LAWA) for information sharing in relation to
child welfare issues and with the Department of the Attorney-General, the Magistrates
Courts, the Department of Corrective Services and LAWA for information sharing
in relation to family violence issues. The experience of LAWA is that these
memoranda of understanding work well, particularly with respect to the FCWA['s]
access to information from DCP and the Magistrates' Court's database. In
addition, DCP now has an officer permanently located at the FCWA to facilitate
the information sharing process.
The ALRC pointed out that, if information sharing arrangements were
implemented, legislative amendments would be required at the state and
territory level to allow the flow of information to the Family Court of
Family violence legislation in all states and territories
prohibits the publication of certain information about persons involved in, or
associated with, family violence order proceedings. In addition, child welfare
legislation in all states and territories contains provisions for protecting
the confidentiality of information collected by child welfare authorities or
for precluding such information from being admissible in another proceeding.
These provisions in state and territory legislation may constitute
inappropriate legislative barriers to federal family courts in accessing
information about family violence orders and related proceedings, and
information held by child welfare authorities.
To address such problems, the ALRC and NSWLRC have previously recommended:
Recommendation 30-3 Non-publication provisions in
state and territory family violence legislation should expressly allow
disclosure of information in relation to protection orders and related
proceedings that contains identifying information in appropriate circumstances,
including disclosure of family violence protection orders to the federal family
courts under [section] 60CF of the Family Law Act 1975 (Cth).
Recommendation 30-4 State and territory child
protection legislation should not prevent child protection agencies from
disclosing to federal family courts relevant information about children
involved in federal family court proceedings in appropriate circumstances.
Recommendation 30-5 Federal family courts and state
and territory child protection agencies should develop protocols for:
(a) dealing with requests for documents and information under
s 69ZW of the Family Law Act 1975 (Cth); and
(b) responding to subpoenas issued by federal family courts.
A representative of the Department advised that the Commonwealth and the
states and territories are currently working toward improved interaction
between the federal family law system, and the state and territory child
protection systems. One particular measure being examined is information
sharing between the Family Court of Australia and child protection authorities:
An upcoming initiative in relation to that is that there is
going to be a national meeting on 22 July between officers from each of the
state and territory child protection authorities and the relevant local
registrars of the Family Court. We will be hosting that here in Canberra. We
certainly are aware of some of the issues that have been raised in relation to
child protection and there is some work going on to try to address some of
Specifically in relation to reporting obligations, the Department
advised that it is not aware that the Australian Government has any plans to
extend reporting obligations to any other class of person, for example, child
welfare authorities or police.
Obligation of advisers to prioritise the safety of children
Proposed new section 60D outlines an adviser's obligations when giving
advice or assistance to a person about matters concerning a child and Part VII
of the Act.
Although the proposed amendment is a composite of current section 60B, current
subsection 60CC(2) and proposed new subsection 60CC(2A), it attracted less
comment than did those provisions, with submitters again remarking on the legislative
Associate Professor Rhoades and Professor Dewar, for example, submitted:
We are concerned that the proposed 3-step approach to
this advice is overly complicated and likely to confuse clients...[C]omplexity
has made it more difficult for advisers, especially legal practitioners, to
achieve developmentally appropriate arrangements for children's care. In our
view, a less complicated formulation of the proposed obligation, which requires
advisers to inform clients that the child's safety should be their highest
priority when settling parenting arrangements, is preferable.
Ms Zoe Rathus AM similarly remarked:
Although I understand the idea behind ensuring that advisers
talk to parents about the best interests of children – I am not sure that this
obvious requirement of professionals in the family law system needs to be
legislated. One of the very clear messages of all of the reviews and
evaluations is that the legislation is too complex and misunderstood by the
community. Prescribing longer and longer 'scripts' that professionals are
required to rehearse to parents will not make the law more comprehensible to
them. These required statements stultify the nature of professional advice and
detract from the nuanced tenor required when providing advice in the real
dynamics of a family law interview.
Judicial duty to take prompt action in relation to allegations
Proposed new section 67ZBB requires the court to take prompt action in
relation to allegations of abuse or family violence. As noted in Chapter 2, the
proposed provision replaces current section 60K of the Act.
Associate Professor Rhoades and Professor Dewar, the Council of Single
Mothers and their Children, and Professor Chisholm supported the amendment.
However, the Chief Justice of the Family Court of Australia, the Hon. Diana
Bryant (Chief Justice) drew the committee's attention to an apparent 'overlap'
between current section 60K and the proposed new provision.
Item 46 of Schedule 1 of the Bill states:
Section 60K of old Act to continue to apply to certain
Despite the repeal of section 60K of the old Act by item 23
of this Schedule, that section continues to apply in relation to a document
that was, before commencement, filed in a court in accordance with subsection
60K(1) of the old Act.
The Chief Justice submitted that the effect of this item is to ensure
that the obligation placed on the Family Court of Australia by section 60K to
act promptly will continue to apply to any document filed in the court prior to
the commencement of Schedule 1 of the Bill. However, the Chief Justice pointed
out that the Bill does not clearly indicate whether a party having made that
application would be also be required to file a prescribed notice under [proposed
new] section 67ZBA in respect of the same allegation.
The Chief Justice suggested that, to avoid confusion and provide
delineation, the transitional provisions should be amended to state that (new) section
67ZBA does not apply to ongoing section 60K proceedings and applies only to
those proceedings initiated on or after the commencement date.
In response, the Department advised that 'the regulation-making power
[item 48 of Schedule 1] could be enlivened to remove any duplication of
Judicial duty to inquire into abuse, neglect and family violence
Proposed new paragraph 69ZQ(1)(aa) imposes an obligation on the Family
Court of Australia to ask each party to proceedings about the existence or risk
of abuse, neglect and family violence.
Purpose of the new judicial duty
According to evidence provided by the Department:
New paragraph 69ZQ(1(aa) responds to a number of concerns
raised in recent reports, in particular that victims of violence are unlikely
to disclose violence unless they are directly asked about their experiences.
Evidence from the [Australian Institute of Family Studies] Report (pp 328-9 and
334) and the Chisholm Report (p. 57) indicates that it is relatively rare that
judicial officers use the powers provided to them by Division 12A to actively
inquire into issues of family violence and child abuse...[The proposed provision]
has been included in the Bill to encourage information about issues of child
abuse and family violence to be presented to the court so the court can make
appropriate and safe parenting arrangements.
In general, submitters expressed reservations about the proposed
judicial duty to inquire. The Chief Justice, for example, queried the
objectives of the amendment. In Her Honour's view, the question to be posed by
the court contemplates either an affirmative or negative answer but does not
clearly state what action the court is to take if an affirmative answer is
All that section 69ZQ(1)(aa) appears to me to do is impose an
obligation on the Court that is without consequence. I do not consider that the
general duties in section 69ZQ, which are designed to give effect to the
principles for the conduct of child related proceedings, are strengthened by
the inclusion of sub-section (1)(aa) and in my view it could be removed
from the Bill with no ill effects.
In evidence, the Deputy Chief Justice acknowledged that it is implicit
in proposed new paragraph 69ZQ(1)(aa) that the court would pursue an inquiry,
if required to do so by an affirmative answer. However:
The Chief Justice's concern is that the legislation does not
require it or tell the court what it should do in those circumstances...I could
not imagine a judicial officer hearing a positive response leaving it at that.
It simply would not happen. There would then be further questions and where
they may lead we do not know, of course. Also one of the issues is at what time
these questions are asked. Logically they should be asked at the very earliest
stage of the matter but the legislation does not say that either.
A further issue raised in respect of proposed new paragraph 69ZQ(1)(aa)
is whether the proposed provision is too broad and should be narrowed to
encompass only future acts of abuse and family violence. Professor Chisholm,
for example, submitted:
This new provision would require the court to ask the parties
about child abuse and family violence. I think there is merit in the idea of
requiring the court to ask about these matters...But in its present form the
provision requires the court to ask about every act of past abuse or
family violence. This provision may prompt parties to bring up all sorts of old
complaints that they might otherwise have decided not to raise, perhaps for
good reasons. Raising such matters could increase the hostility and acrimony
and length of the proceedings, and reduce the chances of settlement.
A departmental representative responded to the concerns of the Family
Court of Australia by explaining that proposed new paragraph 69ZQ(1)(aa) works
in tandem with proposed new section 67ZBA, which requires a party making an
allegation of family violence to file a prescribed form (currently Form 4):
[I]f the court asks the question about family violence and
they get an answer to that question that indicates that, yes, there has been
family violence and that that is relevant to the orders that are being made by
the court...they would then go back to this section [67ZBA]...It would
basically force people to file the Form 4s.
The Department elaborated on the need for this mechanism:
The reports that the government commissioned indicated that
there was a very low incidence of people alleging family violence using the
Form 4s, which is the current mechanism for making those allegations. In fact
people make the allegations in affidavits. They file documents that indicate
that there has been family violence but they do not actually use the Form 4
process which is the process that the court uses to highlight that a case
involves family violence and to deal with [it] expeditiously.
As to when the court should make the inquiry, the Department advised 'it
will be a matter for the courts to develop practices around when and how this
duty would be discharged'.
Associate Professor Rhoades and Professor Dewar supported proposed new paragraph
69ZQ(1)(aa). However, their joint submission stated that the amendment will be
effective only if judicial officers are familiar with the dynamics of family
violence and skilled at using this knowledge to inform their practice:
[W]ithout specific training of judicial officers, non-disclosure
may continue to occur, and...a mutualising approach to the parties' responses
to the proposed questioning may play out. This potential is likely to be
exacerbated in proceedings in the Federal Magistrates Court, where busy duty
lists place considerable time pressures on the ability of Federal Magistrates
to engage directly with the parties. We believe it will be critical to the
success of this initiative for it to be supported by a dedicated training and
professional development program for judicial officers.
Training and education in the field
of family violence
The sufficiency of specialist training and education for professional
persons involved with the family law system, including judicial officers,
family law consultants, family dispute resolution practitioners and legal
practitioners, was a consistent theme in many submissions.
A representative from Women's Legal Services Australia spoke about the
creation of a uniform understanding of family violence and its dynamics as a
beneficial training outcome:
At the current moment, as a legal practitioner who engages
quite readily with the family law system, I feel there is a difference of
understanding, if I may say so, between judicial officers. They sometimes apply
different understandings of family violence, so the way they determine cases
may differ depending on how they interpret family violence and what they
consider to be the elements of family violence. Even different legal
practitioners have different understandings of family violence. If a
comprehensive training package were provided to all participants, there would
be at least some uniformity in how family law violence is interpreted and
applied in the family law system.
Justice for Children considered that one way to improve standards would
be to require those working within the family law system to possess specific
qualifications in child development, and the impacts of trauma and abuse. In
[W]e could ensure that [judges] adhered to particular
principles around their decision making with regard to children's safety such
that, for example, they would not place children with parents who would not
themselves pass a 'working with children' check.
Justice for Children favoured a mandatory set of principles focussed on
the safety and well-being of a child once abuse or family violence has
been established on a balance of probabilities. Representatives at the hearing
referred to, but specifically rejected, the Family Violence Best Practice Principles
currently used by judges of the Family Court of Australia:
Whilst those guidelines exist, nevertheless, we can identify
judgment after judgment where child sex abuse has been established beyond
reasonable doubt and children are placed in the care of the people or
households that have perpetrated that. Those guidelines clearly do not prohibit
those outcomes (a) as a conclusion and (b) those guidelines are not being
adhered to. They are certainly not sufficient.
Representatives of the Family Court of Australia questioned what common
training for persons involved in the family law system would entail, as
appeared to have been suggested by Women's Legal Services Australia. The Deputy
Chief Justice remarked:
I am not quite sure how you would do it, who would do it,
what would be the curriculum, how it would be carried out and what particular
emphases would occur during the course of training. I am not opposed to it.
More specifically, the Deputy Chief Justice responded to concerns that
judges in the Family Court of Australia have insufficient training in the field
of domestic violence:
[T]he court has a program of judicial education. It has an
active and continuing committee that provides that. There have been a number of
events in which judges have received training in and around the subject of
domestic violence and the things that go with it.
His Honour also commented on the extent to which domestic violence
training can be applied in a courtroom:
I do not understand that by having some form of training I
could recognise instantly when someone walks into my courtroom that they either
have been the victim of violence or are a violent person. I do not think that
is appropriate. Courts must operate on the evidence before them, and that evidence
must be on the basis of witnesses put to the court and not some form of
intuitive determination by a judge.
Any training that provides an understanding for judges and
others involved in the system about how to interpret the responses and reactions
from people who are engaged in proceedings before the court is obviously
useful. What I do not think it represents is a substitute for a proper
consideration of the relevant evidence in the relevant matter at that
Repeal of the mandatory costs orders provision
The Bill repeals current section 117AB which requires the court to make
a costs order against a party if satisfied that the party knowingly made a
false allegation or statement in the proceedings.
Support for repeal of the provision
Many submitters supported section 117AB's removal either
for the reason identified by the Australian Institute of Family Studies (that
is, it discourages the disclosure of abuse and family violence) or due to the
perceived adequacy of the Family Court of Australia's general costs discretion
in subsection 117(2) of the Act.
A few submissions also referred to the common misinterpretation of
section 117AB and the need to eliminate that confusion.
The Family Law Practitioners' Association of Queensland (FLPA), for
[Section] 117AB has only ever applied in circumstances where
a person knowingly makes a false allegation or statement. It has never applied
where one person makes an allegation and the Court is unable to find that the
act complained of actually occurred. [Section] 117AB has only applied where a
person makes a malicious allegation that is found to be untrue.
FLPA understands that [section] 117AB has been misunderstood
in that if allegations are made against a person which are not proven in Court
an order for costs will be made against the person making the allegation. This
is contrary to case law in relation to the section. If this is the view of
litigants and/or practitioners, and [section] 117AB is seen as a major
impediment to raising violence in family law proceedings then it should be
Opposition to repeal of the
On the other hand, some submitters supported current section 117AB and
were strongly opposed to its repeal.
The reasons for this support varied from the need to retain the provision as a
deterrent, to belief in the ability of the court to distinguish between
unsubstantiated allegations and false allegations.
Men's Health Australia, for example, submitted that a common legal
strategy in family law proceedings is spurious allegations of family violence
The proposed changes mean that there will be no penalties
available for the court to discourage fabricated allegations of violence or
abuse. It is absurd that this will be the only Australian Court unable to
penalise those who deliberately lie in proceedings. The proposed changes
encourage the use of hearsay and uncorroborated allegations by both parents and
officers of government departments.
Dads in Distress Support Services emphasised the importance of current
section 117AB as a deterrent. Its submission argued that the repeal of this
section will lead to an explosion of false allegations and an escalation of
mental anguish for those falsely accused of family violence:
The negative psychological impact of false allegations cannot
be over-estimated. A large percentage of people coming to us for support have
been subjected to false allegations and suffer considerable anguish as a result.
It is highly offensive to those who are victims of false allegations to suggest
that there be no sanctions against those proven to have made false claims. The current
sanctions would not appear to be strong enough in our view, but to repeal them would
only add to the psychological pressures on many non-custodial parents.
The Joint Parenting Association was not persuaded by the rationale offered
in support of the repeal of current section 117AB. The Joint Parenting
Association submitted that the Family Court of Australia correctly interprets the
section and, if parties to proceedings believe otherwise, they are mistaken:
Not being able to substantiate an allegation is not the equivalent
of a knowingly made false accusation. Further, an allegation based on a
mistaken view of another party's words or behaviour does not amount to a false
assertion and the court is able to discern the difference between good faith
and malicious assertions designed to gain advantage in proceedings. Lawyers
know this to be the case and if some are advising clients otherwise as critics
assert they are in breach of their ethical cannons.
Prevalence of mandatory costs
The Deputy Chief Justice advised the committee that adverse costs orders
have been made under section 117AB in only a very small number of cases.
However, His Honour spoke at length regarding the difficulty of quantifying the
number of cases in which the court has found a party to have knowingly made
People who come to the Family Court, in my experience, at
least – and it may not be shared by others – generally try to tell the truth.
They tell it as well as they can reasonably remember it, bearing in mind that
the Family Court deals not with a specific instance on one particular day but
with the period of the relationship, which may span many years.
His Honour continued:
It is not uncommon for people to report things with a
particular focus. If it is in a highly emotional moment, then it is not
uncommon for that to be quite different, depending on which side of the divide
you on. Accordingly, there are not very many cases in my experience in the
Family Court in which people are found to have deliberately perjured themselves
in saying that either they did do something or did not do something or that
someone had done something or someone had not done something. Hence, from our
point of view it would be extraordinarily difficult to keep statistics about
what were thought to be false allegations.
His Honour also alluded to the difficulty in obtaining an accurate
sampling for all family law matters:
Let me suggest this to you: approximately 50 per cent of all
the matters that are listed for hearing in the Family Court actually get a
judgment. That means that about one half of all the cases that come on for
hearing are settled. Of the cases that are filed in the Family Court, something
less than 12 per cent actually get a hearing date. So something like six per
cent of all the cases before the Family Court are actually the subject of a
judicial determination. In that context, to talk about whether or not someone
has made a false allegation or not is very difficult because there are clearly
no determinations about something like 94 per cent of the cases that are there.
Those figures are rough; they vary from month to month and year to year, but
they are approximately right.
The Deputy Chief Justice then described what occurs when a presiding
judge believes that a party has, or may have committed perjury:
We of course have no power to deal with perjury, although,
commonly, people in the community suggest that we should be putting people in
jail for perjury. It is a criminal offence. If that situation occurs, the
matters are referred to the Attorney-General for prosecution under the Crimes
Act. I cannot recall the last time any reference to the Attorney-General was
the subject of prosecution, successful or otherwise. It is a commonly argued
matter about the court that we do not deal with people who commit perjury. The
short answer is that we cannot. It is not within our jurisdiction to do so.
Ultimately, it is a matter for the Attorney-General to prosecute – not personally,
but for the officers of the Commonwealth – as a criminal offence.
Retrospective effect of the application provision in item 45 of Schedule 1
Item 45 of Schedule 1 reads:
Amendments that apply to proceedings instituted on or
Subject to item 47, the amendments made by items 1 to 8, 11,
13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation
to proceedings whether instituted before, on or after commencement.
The Chief Justice noted that the substantive provisions of Schedule 1 of
the Bill will apply to proceedings instituted before or on commencement of the
Bill, including part-heard proceedings and those where judgement is pending.
The Chief Justice submitted that the Bill will impose additional costs and
delays for litigants in such proceedings:
I say this because it seems to me that the requirements of
procedural fairness dictate that [persons involved in the proceedings] would
need to be given the opportunity to consider and make submissions as to the
effect of the amendments on the proceedings and the implications for
determining what arrangements are in the best interests of the child.
The Chief Justice further cautioned:
Cases involving actual violence or abuse or the risk of harm
to children are precisely those cases that need to be brought on quickly, heard
in a timely manner and finalised so that appropriate protective arrangements
can be put in place.
In June 2011, the Attorney-General responded to concerns similar to
those of the Chief Justice raised by the Senate Standing Committee for the
Scrutiny of Bills:
To ensure the best result for children, the [Bill] was cast
to apply to as many family law cases as possible. I note that the Family Law
Amendment (Shared Parental Responsibility) Act 2006, which introduced the
2006 family law reforms, contains a range of application provisions. Some apply
to 'orders' made on or after the commencement date and similarly reach back to
proceedings instituted before the commencement of that Act. The regulation
making power in item 48 was drafted to ensure that certain proceedings, such as
part-heard, reserved judgment and appeal matters, could be carved out from
His Honour, Justice Steven Strickland, conceded that regulations might
be one way of eliminating the retrospective application of item 45 of Schedule
1. However, Justice Strickland noted that no such regulations were made in
respect of the 2006 family law reforms and further:
We do not know the detail of [the current proposal]. We have
not seen any draft regulations. We initially had a concern about that. By that
I mean: the Chief Justice wondered how regulations could override legislation.
But, again, the Chief Justice understands that the Attorney-General has advice
about this and that it can be done and it has been done before. If that is
right – and, as I said, the Chief Justice has not seen any draft regulations
yet – that certainly would be a way of dealing with this issue.
However, it was the Chief Justice's suggestion that the Bill be amended
to commence on Royal Assent or by proclamation and to apply only to those applications
filed after the commencement date.
According to departmental officers:
The way that the bill is currently drafted involves the bill
commencing upon proclamation rather than upon assent. If the proclamation is
not made within six months, then it would commence at the end of a six-month
period. The thinking behind that was that there would be that time period to
allow the court to get through as many matters as possible before the
commencement of the legislation in order to have a fairly clear approach to the
commencement of the provisions. Because we were not sure how the court might be
going with that, we thought there would be an ability for the government to
make an assessment about whether part-heard or fully-heard proceedings should
be carved out [under item 48 of Schedule 1], or if there were not terribly many
of them then it would not be an issue.
The Department also confirmed that it had received advice from the
Office of Parliamentary Counsel that regulation-making powers for matters of a
transitional, savings and application nature are relatively common in
These powers are conferred in complex legislation and often
in circumstances in which the Government is still to finalise transitional,
savings or application arrangements or where there is a strong possibility that
unexpected issues may arise after enactment of the legislation.
In answer to a question on notice, the Department stated that its
approach to commencement of the Bill and the approach proposed by the Family
Court of Australia were not substantially different. However:
The approach taken by the Government does allow the new
family violence measures to be applied to more matters and potentially protect
more children and their families. The approach taken in the Bill also allows
the Government to deal expeditiously with matters that may arise during the
implementation of the new law.
Resourcing implications for the Family Court of Australia
The Explanatory Memorandum states that the amendments proposed by the
Bill will have negligible financial implications.
However, inquiry participants who addressed this issue expressed a contrary
The Chief Justice submitted that the confluence of amendments will have
resource implications for the Family Court of Australia and expressed concern about
the court's ability to fulfil its obligations under proposed new section 67ZBB
(the requirement to take prompt action). The Chief Justice stated:
In the current financial climate, the Court is not in a
position to accommodate an expansion of its workload unless more funding is
forthcoming to assist the Court in managing that increase.
The Law Council of Australia endorsed the comments of the Chief Justice:
The courts already struggle to meet the requirements of [section]
60K and this situation will only get worse with the introduction of [section] 67ZBB.
It is the view of the Family Law Section that the courts will not be able to
meet the requirements of [section] 67ZBB unless the Government commits
significant further resources.
More generically, some submitters stated:
The issue of family violence cannot be adequately addressed without
looking at the issue of lack of resources – for court processes, support services
and legal assistance – as all of these things are a major contributor to the failure
of the court system to adequately protect victims of violence.
When the issue of additional funding was raised with the Department, it
The family courts will need to adapt their practices to deal
with the reform as no additional funding is to be allocated in respect of the
Equal shared parental responsibility
The Bill will affect two key features of the 2006 family law reforms:
the presumption of equal shared parental responsibility (ESPR), as set out in
current section 61DA; and the requirement to attend pre-filing family dispute
resolution in parenting cases, as set out in current section 60I. Whereas only
a few submitters commented on the latter issue,
the majority of inquiry participants commented on the ESPR provisions in the
Current subsections 61DA(1) and (2) of the Act state:
(1) When making a parenting order in relation to a child, the
court must apply a presumption that it is in the best interests of the child
for the child's parents to have equal shared parental responsibility for the
Note: The presumption provided
for in this subsection is a presumption that relates solely to the allocation
of parental responsibility for a child as defined in section 61B. It does not
provide for a presumption about the amount of time the child spends with each
of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable
grounds to believe that a parent of the child (or a person who lives with a
parent of the child) has engaged in:
(a) abuse of the child or another
child who, at the time, was a member of the parent's family (or that other
person's family); or
(b) family violence.
Some submitters and witnesses argued that the proposed new definitions
of 'abuse' and 'family violence' constitute an attempt to 'roll back' the ESPR
provisions of the Act.
Dads4Kids Fatherhood Foundation, for example, submitted:
[T]he 2006 reforms were initiated due to too many children
being denied the opportunity to develop a meaningful relationship with both of
their parents. We are very disheartened to see the shared parenting legislation
be reversed under the guise of reducing family violence.
The Joint Parenting Association similarly submitted:
[We are strongly opposed to] the Federal Government's removal
of the many common-sense provisions of the Family Law Act that were
enacted in 2006 to bring a much needed balance between protecting families from
violence and protecting children's human right to the love of their parents in
equal measure following divorce.
Men's Health Australia voiced its concerns as follows:
We are strongly opposed to the Federal Government's proposal
to remove many of the sensible provisions of the Family Law Act that were
instituted in 2006 to bring a much needed balance between protecting families
from violence and protecting parents from false allegations of violence.
We have no doubt that the proposed changes will lead to
increased rates of suicide, depression and self-medication in many separated
fathers (and some mothers), and the potential damage to the lives of children
denied access to one of their parents is unthinkable.
The Family Court must be allowed to act in the best interests
of children, which means where possible encouraging substantial contact with
both parents. The proposed changes do not do this, and in fact seem designed to
abet malicious litigants.
However, there were also diametrically opposed submitters and witnesses
who argued that the Bill does not, but should, eliminate the ESPR provisions
altogether. The reasons for this view included: each case must be determined on
its own merits (rather than according to a statutory formula);
and the ESPR provisions continue to place children and families at risk of
abuse and violence.
The Explanatory Memorandum states:
The Family Violence Bill retains the substance of the shared
parenting laws introduced in the Family Law Amendment (Shared
Responsibility) Act 2006 (Cth) and continues to promote a child's right to
a meaningful relationship with both parents where this is safe for the child.
The Attorney-General has publicly reiterated that position as follows:
Despite the claims of some interest groups, the reforms do
not repeal the shared care laws introduced in 2006.
The Family Violence Bill retains the substance of the shared
parenting laws and continues to promote a child's right to a meaningful
relationship with both parents–but the best interests of the child must always
come first, particularly in situations of conflict.
The Australian Institute of Family Studies has found that
shared care generally works well where the parents have little conflict, can
cooperate and live close together.
A child's right to a meaningful relationship with both
parents – where this is safe – should always be supported.
Need for a public education campaign about the Bill's proposed measures
Associate Professor Rhoades and Professor Dewar stated that a key theme
of the Australian Institute of Family Studies report was that many people who
sought assistance from family law services possessed an inaccurate
understanding of the law:
Surveys of service sector personnel revealed that on first
seeking assistance, clients of both legal and family dispute resolution
services 'failed to understand the distinction between the concepts of equal
shared parental responsibility and time', and that many parents, particularly
fathers, 'had an expectation of equal care-time arrangements' (Kaspiew et al,
2009: 207, 210). The research found that these misunderstandings of the law had
led to unrealistic instructions from clients, impeding the ability of service
sector professionals, especially lawyers, to achieve developmentally
appropriate care arrangements for children (Kaspiew et al, 2009: 215)...[O]ur
view is that the Government's proposed approach to prioritising safety from harm
(by enacting a new section 60CC(2A) and new advisers' obligations regarding the
best interests of the child in section 60D) may further complicate the
legislation, creating added confusion for clients. We believe a public
education campaign to accompany the introduction of the [Bill] is warranted to
educate the wider community about the new provisions and to correct the present
misunderstandings of the [Act].
Psychologists and social workers within the family law system, community
legal centres and other submitters agreed with this recommendation.
The committee commends the Australian Government for responding to
reviews of the operation of the Family Law Amendment (Shared Parental
Responsibility) Act 2006 and introducing the Bill to address ongoing
concerns about the protection of children and families at risk of abuse and
The committee notes that its inquiry into the provisions of the Bill
generated considerable interest from both individuals and organisations.
Irrespective of participants' views on specific issues, a common theme to emerge
in much of the evidence was that the Family Law Act 1975 (Act) is too
complex. In particular, submitters and witnesses described difficulties in
interpreting and applying certain provisions in Part VII of the Act.
The Family Court of Australia requires clear legislative guidance from
the Parliament. Australian families, and family law and child welfare
professionals, equally require legislation which they can understand and
readily apply. In the context of protecting a child from harm, this cannot be overemphasised.
For these reasons, the committee suggests that, at the first
opportunity, the Australian Government renumber provisions in the Act to ease
comprehension and make the legislation more 'user friendly'. The committee also
believes that there is considerable merit in Associate Professor Rhoades and
Professor Dewar's suggestion for an education campaign to accompany the
introduction of the Bill. The campaign should specifically cover the critical
amendments made by the Bill and the Bill's commencement date, and should clarify
the distinction between the concepts of equal shared parental responsibility
In respect of the substantive provisions proposed in the Bill, the
committee comments as follows.
Prioritising the best interests of
children in parenting matters
The committee strongly endorses prioritising the protection of children
from all forms of harm. Accordingly, committee members have reservations
concerning the need to determine an inconsistency between the two primary
considerations prior to the Family Court of Australia being required to give
greater weight to the need to protect a child from physical or psychological
harm. There should be no such pre-requisite. The committee considers that
the objective of proposed new subsection 60CC(2A) could be better met by
redrafting the proposed provision as suggested by numerous submitters:
In applying the considerations set out in subsection (2), the
court is to give greater weight to the consideration set out in paragraph
The committee accepts the general principles that it is important for a
child to have a relationship with his or her parents, and for each parent to
facilitate a relationship with the other parent. However, the committee does
not believe a relationship should be facilitated where there is a real risk of
harm to a child. Nor should a parent feel compelled to conceal, or fail to
disclose, that risk due to a fear of having a child removed from his or her
care. The committee therefore supports proposed new paragraph 60CC(3)(c) but recommends
that it be modified to require the Family Court of Australia to take into
consideration the reasons why a relationship might not have been facilitated,
including a risk of harm to a child.
The committee notes that existing section 60CF of the Act requires
parties to inform the Family Court of Australia of any relevant family violence
orders. If the Family Court of Australia becomes aware of such an order, the
committee agrees that it is not the order itself but its evidentiary basis
which is of interest to the Family Court of Australia. Accordingly, the
committee, like the Australian Law Reform Commission and the Family Court of
Australia, considers that the Bill should implement the provision proposed by
Professor Chisholm as paragraph 60CC(3)(k):
(k) any relevant inferences that can be drawn from any family
violence order that applies, or has applied, to the child or a member of the
child's family, taking into account the nature of the order, the circumstances
in which it was made, any evidence admitted and any findings made by the court
that made the order, and any other relevant matter.
One final point in relation to the additional considerations: the
committee considers that it would be helpful for the Department to reissue the
Explanatory Memorandum highlighting that the proposed amendments to subsection
60CC(3) are not intended to restrict the matters to which the court may have
regard under current paragraph 60CC(3)(m).
3.163 The committee recommends that proposed new subsection 60CC(2A) in item
17 of Schedule 1 of the Bill be amended to read '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)'.
3.164 The committee recommends that proposed new paragraph 60CC(3)(c) in item
18 of Schedule 1 of the Bill be amended to require the Family Court of
Australia to give consideration to the reason(s) why one parent might not have
facilitated a relationship with the other parent in accordance with that
provision, including due to risk of harm to a child.
3.165 The committee recommends that proposed new paragraph 60CC(3)(k) in item
19 of Schedule 1 of the Bill be amended to read:
(k) any relevant inferences that
can be drawn from any family violence order that applies, or has applied, to
the child or a member of the child's family, taking into account the nature of
the order, the circumstances in which it was made, any evidence admitted and
any findings made by the court that made the order, and any other relevant
New definitions of 'abuse' and
In the proposed new definition of 'abuse', the requirement for a child
to suffer serious psychological harm or serious neglect concerned
the committee. The committee agrees with the Family Law Council, and other
inquiry participants, that by its very nature any form of child abuse is
serious. The committee would much prefer that child abuse is caught in its
earliest stages, rather than subject a child to more prolonged abuse in order
to meet a statutory threshold. This is not the message that this committee, or
the Australian Government, wishes to send to the Australian community.
The Attorney-General's Department explained the use of the qualifier
'serious' in paragraph (c) of the proposed new definition of 'abuse' as an
attempt to avoid over-reporting. The committee is not persuaded by this
argument. Child welfare authorities are properly responsible for investigating
all allegations of child abuse and should be given the opportunity to do so. If
there is a concern that a broader definition of 'abuse' will impede
investigations, the committee would strongly urge all child welfare authorities
to review and, if necessary, implement appropriate processes for granting
priority to the most urgent cases and dealing with all other cases within a
reasonable time frame. In this context, the committee notes that the Family
Court of Australia is required to act promptly and, in any event, within eight
The committee commends the Australian Government for giving greater
recognition to the breadth of behaviours which constitute family violence. As
noted by the Attorney-General's Department, the proposed new definition of
'family violence' provides a more descriptive and subjective, but not
exclusive, test, which requires decision makers to consider the personal
experiences of family members.
Some inquiry participants told the committee that the proposed new
definition of 'family violence', and the repeal of the mandatory costs order
provision in existing section 117AB, would result in an 'explosion' of
malicious and vexatious claims. The committee does not agree with these
assertions. According to the Family Court of Australia, existing section 117AB
is seldom used. Further, the committee accepts the research findings of Dr
Michael Flood and, in particular, the finding that false allegations are rarely
made. This finding was supported by inquiry participants, and in this regard,
the committee notes that allegations made by a party will be required to meet
the thresholds set out in proposed new subsection 4AB(1), as well as the usual
3.170 The committee recommends that:
- proposed paragraph (c) in the new definition of 'abuse' in
subsection 4(1) in item 1 of Schedule 1 of the Bill be amended by removing the
reference to the word 'serious'; and
- the Attorney-General's Department review the provisions in the Family
Law Act 1975 containing the words 'abuse' and 'neglect' to determine
whether there are any legislative inconsistencies which need to be addressed.
Ensuring better access to evidence
of abuse and family violence
One objective of the Bill is to ensure that the Family Court of
Australia has better access to evidence of abuse and family violence.
Submitters and witnesses presented a considerable amount of information to the
committee suggesting that more could be done to achieve this objective. The
committee agrees that there is room for improvement.
In July, the Standing Committee of Attorneys-General (SCAG) undertook to
provide a national response to the Australian Law Reform Commission and New
South Wales Law Reform Commission report, Family Violence – A national legal
That report made a number of findings regarding improvements to information
sharing between the federal family law system and state and territory child
protection systems. The committee supports improved interactions between these
systems but considers it appropriate to wait for the SCAG response and the
outcome of the current initiatives briefly mentioned in the evidence of the
The committee accepts the Department's explanation regarding what course
of action the Family Court of Australia is to take should it receive an
affirmative response to its inquiry into whether a party alleges abuse, neglect
or family violence. However, the committee considers that this explanation
should appear in the relevant provisions and accordingly suggests the inclusion
of an appropriate note where necessary.
Training and education in the
family law system
Throughout the inquiry, participants questioned the specialist knowledge
of professional persons involved in the family law system. In particular, the
committee heard concerns that judicial officers possess and apply various
understandings of what constitutes family violence and its dynamics. The Family
Court of Australia was not convinced that 'common training' would resolve any
perceived deficiencies in judicial training. In its view, the Family Court of
Australia judicial education program, supplemented by the recently updated
Family Violence Best Practice Principles, provides judicial officers with
adequate knowledge to fulfil their function. The committee accepts that the
on-going education and internal procedures adopted by the Family Court of
Australia and its officers sufficiently prepares the court to appropriately
manage matters involving allegations of abuse and family violence.
The committee is aware of some concern that the Family Violence Best
Practice Principles are not always implemented and, as a consequence, it is
alleged that the Family Court of Australia is, in some instances, making unsafe
parenting arrangements. Without overwhelming evidence to support these
allegations, the committee accepts the evidence of the Law Council of Australia
that such instances would be rare.
The committee notes the Attorney-General's Department's advice regarding
the commencement date of the Bill, and understands that it is the intention
that Schedule 1 of the Bill commence six months after the Bill receives Royal
Assent, if proclamation has not occurred within that six-month period
(subclause 2(1) of the Bill). This time frame was chosen to allow the Family
Court of Australia some lead time to put in place relevant processes and
systems for the new measures.
The committee also notes that the key objective of the Bill is to
provide better protection for children and families at risk of violence and
abuse. For this reason, item 45 of Schedule 1 has been drafted to apply
the substantive provisions of the Bill to as many family law cases as possible,
including proceedings instituted in the Family Court of Australia prior to
commencement of the Bill.
The committee strongly endorses the key objective of the Bill and
therefore believes that the substantive provisions of the Bill should commence
earlier than the maximum lead time of six months provided for in subclause 2(1)
of the Bill. The committee considers that three months is sufficient time for
the Family Court of Australia, and other stakeholders, to prepare for the
changes to be introduced upon enactment of the Bill.
In addition, the committee is concerned with the proposal to allow the
substantive provisions of the Bill to be proclaimed after Royal Assent but
before expiration of the lead time. The committee believes that such a proposal
introduces an element of uncertainty which is best avoided in order to establish
a clear and specific commencement date for Schedule 1 of the Bill.
3.180 The committee recommends, in relation to the commencement date of
Schedule 1 of the Bill, that column 2 of subclause 2(1) of the Bill be amended
to delete reference to 'A single day to be fixed by Proclamation' and to
provide that Schedule 1 will commence on the day after the end of the period of
three months beginning on the day of Royal Assent.
The committee further notes that the regulation-making power in item 48
of Schedule 1 of the Bill could be invoked to make regulations of a
transitional, application or savings nature relating to the substantive
provisions of the Bill. It is arguable whether such a provision amounts to an
inappropriate delegation of legislative power.
As a general principle, the committee does not consider that the use of
'Henry VIII' clauses is a preferred course of action, particularly when the
precise content or nature of potential regulations is not known or unclear. The
committee understands that no regulations have been drafted in relation to the
In this circumstance, it is difficult for the committee to reach firm
conclusions regarding the appropriateness of item 48 of Schedule 1.
However, the committee is persuaded that the regulation-making power in
this instance would serve a useful and practical function. As noted by the
Attorney-General's Department, the provision enables the Australian
Government, in consultation with the Family Court of Australia, to assess
categories of proceedings to which the substantive provisions of the Bill
should not apply. Such categories could include part-heard, reserved judgement,
appeal or filed matters which have not been disposed of by the court prior to
the commencement date.
For this reason, the committee concludes that the regulation-making power in
item 48 of Schedule 1 should remain in the Bill.
Equal shared parental
The committee is not persuaded by arguments that the Bill 'winds back'
the shared parenting reforms introduced by the Family Law Amendment (Shared
Parental Responsibility) Act 2006. Upon examination, the Bill appears to
strike a balance between a child's right to a meaningful relationship with both
parents and a child's right to protection from harm. The committee chooses
these words with care as Part VII of the Act promotes the rights and
interests of children only.
Minor drafting issues
Finally, the committee notes two small drafting issues: first, the use
of the word 'done' in proposed new subsection 60B(4); and second, the heading
'Amendments that apply to proceedings instituted on or after commencement' in
item 45 of Schedule 1. In relation to the first point, the committee
agrees with the Australian Law Reform Commission that the word 'done' is 'ugly'
but notes that the wording reflects the current drafting practice of the Office
of Parliamentary Counsel. In relation to the second point, it is clear that the
heading is meant to read 'Amendments that apply to proceedings instituted on or
before commencement' and should be amended accordingly.
3.186 The committee recommends that the Attorney-General's Department, in
conjunction with the family law courts and relevant professional organisations,
institute an education campaign, to commence no less than two months prior to
the expiration of any lead time, and to cover the critical amendments made by
the Bill, including the Schedule 1 commencement date.
3.187 The committee recommends that the heading in item 45 of Schedule 1 of
the Bill be amended to read 'Amendments that apply to proceedings instituted on
or before commencement'.
3.188 Subject to the above recommendations, the committee recommends that the
Senate pass the Bill.
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