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SingleMum.com.au Expert Opinion Panel Stephen Page - Lawyer


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Government acts on domestic violence

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:
  • Domestic Violence - Stock Photo (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 family; or
(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."

Article continues on Page 2 here




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What does it mean to be a single mum?Of course, the

kids

are the most important thing in a single mum's life. Kids are the focus and always have been. But along with the children, there are other matters that can confuse a single mum's life.

Centrelink

plays a big part of a single mother's life, mainly because this is where a large percentage of single mums get their finances from. Centrelink are the source from where the

single mother pension

, or as it is otherwise known, the single parent payment comes from. The single mother pension is a subsistence amount, but just the same, it is money to live on, and so it is important, no matter if it is called single parent payment, single mother pension or whatever Centrelink welfare classes it at the time

Often, single mums come out of a

divorce

or defacto relationship only to find that their troubles have just begun, and find that their first step leads them towards Family Law - it's time to engage a lawyer.
There are more than just Centrelink finance problems to worry about, as mentioned before, but also

child custody

issues. Child custody is something that hits right at the heart of

single mums

. If a single mother's ex husband or ex partner has been a domestic violence perpetrator, the mum may be greatly worried about child custody. They worry that their kids won't be safe with their spouse, who has already proven to be abusive because they caused

domestic violence

, which resulted in a divorce or separation.

Even so,

Family Court

will often still order a form of child custody named

Shared Parenting

. Shared Parenting is a form of child custody division of time or parental responsibility between the parents. Mother's often look for a good divorce lawyer to try to avoid share parenting with an abusive ex-spouse after divorce, however in many cases Shared Parenting is still the outcome after the divorce, no matter how good the divorce lawyers have been. They will often settle for visitation at a contact centre or access centre where fathers or mothers are supervised during child custody access.

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