SingleMum.com.au Expert Opinion Panel Stephen Page - Lawyer
Stephen Page for SingleMum.com.au | April 19, 2011
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New laws proposed by the Gillard government directly tackle domestic violence in the family law arena. They are contained in one of the shortest bills before Federal Parliament, but will most likely tilt the playing field in the Family Court towards the protection of children from violence and abuse, and away from the emphasis of the childís right to have a relationship with the other parent.
In broad terms, a win for the womenís lobby and a loss for the menís rights lobby.
The Family Court (and more recently the Federal Magistrates Court) has since its existence had to struggle with how to balance the protection of children and parties from domestic violence and abuse, and on the other ensure children where possible have a relationship with the other parent.
Similarly governments and parliamentary committees of all hues have tried to tackle both issues.
When the 2006 amendments to the Family Law Act were brought in by the Howard government, there was a perception that they overly favoured the menís rights lobby, and did not properly tackle the issue of domestic violence enough.
Following a series of reviews of the Family Law Act, partly because of a review process set in train arising from the 2006 amendments, and partly because of the murder of Darcey Freeman by her father, the Commonwealth Attorney-General Robert McClelland has put the Family Law Legislation (Family Violence and other Measures) Bill 2011 before the House.
The Bill aims to do the following:
- Widen the definition of "abuse". This previously covered assaults and using a child as a sexual object but inexplicably did not include causing serious psychological harm to a child, including when the child is subject or exposed to family violence, and neglect
- Removes the test of reasonable belief that was required by a survivor of family violence to show that it was family violence. There was a perception that this limited women from coming forward and naming family violence<'li>
- Sets out example of family violence:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial
autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet
the reasonable living expenses of the family member, or his
or her child, at a time when the family member is entirely or
predominantly dependent on the person for financial support
(i) preventing the family member from making or keeping
connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of
the family member's family, of his or her liberty
- For the first time, in setting out those examples, identifies types of domestic violence, including social isolation, and trying to starve the other party into submission
- However, these examples are limited by what is required for family violence in the new definition. It will mean: "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"
- Since the seminal decision of Justice Chisholm in JG and BG in 1994, and by the Full Court of the Family Court in Patsalou and Patsalou in 1995, the Family Court has recognised that children can be affected by domestic violence by being indirectly exposed to it. Before then an argument would be run by a violent party that there was little if any impact upon the child as the child had not seen or heard the incident. There has never been a statutory definition of "exposed" which this bill attempts for the first time:
- The key feature of this definition is that the behaviour must be coercing or controlling or make the other person fearful. For the first time ever the Family Law Act will recognise, as Justice Chisholm in JG and BG recognised as long ago as 1994, that domestic violence involves power and control elements. Just because one of the examples, such as withholding financial payments, might be made out does not necessarily make the behaviour "family violence" unless this element is met
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 may constitute a child being exposed to
family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member
of the child's family towards another member of the child's
(b) seeing or hearing an assault of a member of the child's family
by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's
family who has been assaulted by another member of the
child's family; or
(d) cleaning up a site after a member of the child's family has
intentionally damaged property of another member of the
child's family; or
(e) being present when police or ambulance officers attend an
incident involving the assault of a member of the child's
family by another member of the child's family."
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