Currently, Australia is in a state of change with respect to family violence and children’s matters under the Family Law Act 1975 (Cth). This change is coming in the form of the Family Violence and Other Measures Bill 2011, which is now before Federal Parliament.
The Bill was first introduced by the Attorney – General, the Honourable Robert McClelland MP in November 2010. The objective of the Bill is to prioritise the safety of children, to redefine the meaning of “family violence” and to strengthen the role of family Courts, advisers and parents in preventing harm to children.
It is intended that this Bill will be enacted sometime at the end of August 2011.
So what does the law currently, have to say about issues of family violence and how do our Courts generally deal with family law matters that raise these very serious concerns, especially where children are involved or present?
How is Family Violence currently defined in the Family Law Act?
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.'
How is Family Violence explained?
There appears to be a general acceptance that family violence falls broadly into the following four categories:
How does the Family Court and Federal Magistrates Court deal with children’s matters where allegations of family violence or child abuse have been raised?
The paramount consideration, that a Court must give regard to is the best interests of the child/ren in deciding whether a particular parenting order should be made by the Court.
So how does the Court determine what is in the best interests of the child/children?
This is a process which compels the Court to consider the primary issues of the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Not an easy task, almost a balancing exercise, requiring a great deal of consideration and taking into account of, the many competing views and evidence as presented by the parties.
The Court is then required to move from the primary considerations to the additional considerations as outlined in S60CC (3) of the Family Law Act.
Family Reports and Other Independent Expert Reports
Where allegations of family violence or child abuse have been raised, the Court will often order that an independent report be prepared to shed light on the issues in a critical and independent manner. The report writer will be instructed to assess the particular issues that have been raised and provide recommendations to the Court who will best serve the interests of the child. The Court of course is not bound by these recommendations, however will in most cases place significant weight on the Independent expert’s assessment of the situation.The Interim hearing
The interim hearing stage brings about great anxiety and stress to most litigants. They are usually of the view that they will either be successful or otherwise at this point and this will carry through to the final hearing. Although it is our experience that usually it is a strong indication of how the matter will proceed to finality, it is not to say that this will be the case in every matter.
If you are the party, asserting family violence consider the following issues that you should raise:
1. What is the likely risk of harm to the child if an interim order is made for the child to spend time with a parent/party against whom allegations of family violence or child abuse have been made?
2. Should there be supervised time?
3. It is extremely important that prior to attending the interim hearing, inquiries have been made with respect to the issue of supervision and that contact centres have been contacted to alert the Court with respect to availability , waiting lists and cost issues.
4. How long should supervised time continue for? Many people are of the view that supervision should be a continuous long-term parenting arrangement. In most cases supervision will be a temporary measure to allow time to address the issues of family violence and child abuse issues raised.
5. Changeover locations and safety measures must be considered for all the parties involved, but in particular to protect the child from any exposure to or being subjected to any further family violence and/or child abuse. Often police stations are used as changeover venues, this may or may not be suitable depending upon among other factors, the age of the children and the circumstances of the allegations made.
6. It is important to remember that contact centres may offer a change-over facility and you should make preliminary inquiries prior to the interim hearing to determine suitability for your matter.
7. Should orders be in place where one parent alleges illicit use of drugs and /or alcohol addiction to prevent that parent from using any of these substances either prior to or whilst they have the care and control of the child?
8. Should orders be in place to restrain the parties from physically disciplining the child, if these issues have been raised?
9. Is there are current apprehended domestic violence order and are the orders that are being sought consistent with this order.
10. Is it in the best interests of the child if the parties attend a post-separation parenting course?
The Final Hearing
The issues of family violence and/or child abuse that have been raised at the Interim hearing and if they have not been addressed by orders made at this stage, must be determined here.
The Court has a duty to ensure that any future, final orders made address and consider how children have been affected by exposure to family violence and what protective measures/orders should be put in place to ensure the future safety of the children.
The Court recognises that family violence and abuse has long lasting deleterious effects on children which can present in children and young adults as anxiety, depression, anti-social behaviours and use of alcohol and illicit substances to cope with the trauma of family violence.
Pamela Cominos MA Dip Ed.LLB (UNSW) br> Principal –Cominos Lawyers
This paper acknowledges and draws upon the Revised Family Violence Best Practice Principles, presented by Her Honour Diana Bryant, Chief Justice of the Family Court of Australia and His Honour John Pascoe, Chief Federal Magistrate, Federal Magistrates Court of Australia – July 2011.
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This article contains general information only. For advice regarding your own personal circumstances, always seek individual advice from a qualified professional. Read the full singlemum.com.au Disclaimer here
Pamela Cominos is the Principal Family Lawyer at Cominos Lawyers, Sydney who specialise in all aspects of Family Law.Pamela holds a Masters of Arts degree together with a Bachelor of Laws Degree from University of New South Wales.
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