False Allegations
Mum loses custody to her child’s alleged abuser
Editor: Anyone who understands the Family Law act would realise that we are likely not being given the full story here – see below. This sounds like a typical Caroline Overington beat-up, except for the fact that we have a new journalist in this instance who is likely to be selectively reporting the facts.
One has to wonder why a Judge would give sole custody to a father, if the only facts of the case are as reported in this story. There must be much more to this story than this journalist is letting on, especially with regard to the mother’s parenting abilities, her own possible child abuse behaviours, and perhaps some serious instances of parental alienation or false allegations. Who knows, but what is certain is that there is much more to this than what this news article claims. In any case, if anyone can point me to the actual judgment or provide F4E any further information on this case it would be appreciated.
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Another Bridge Protest Against Disgraceful Child Custody laws
A un-named man who was charged over a risky protest against Australia’s Child Custody laws on Brisbane’s Story Bridge, has walked free from court on bail.
Police sought to have bail conditions imposed on the 31-year-old Ormeau man, who was charged with performing an unregulated high risk activity, but the request was denied.
Lawyers acting for the man said he had made his point through the high-profile protest against Australia’s discriminatory child custody laws, however he did not intend to repeat the activity.
The man was bailed to appear again in court on December 19.
According to statements made by the man, a father of 3 who has spend over $88,000 to gain visitation to his children, his protest was against the Australian Family Law Courts and their complete disregard for the rights of children.
Shared care dead as mother stands firm on no access
A QUEENSLAND father has been banned from having any contact with his five-year-old daughter until she reaches 18 after the Family Court accepted that the child’s mother would “destroy” the relationship rather than agree to shared care.
In a decision that suggests the “shared care” law introduced by the Howard government was effectively dead, a full bench of the Family Court said “the mother would ignore any order for contact” and, as a result, it was pointless to order her to co-operate.
Shared care of children after divorce was a policy goal of the previous government, but the law is now being rolled back, with key changes to the Family Law Act (1975) passing through the Senate this week.
Under the old law, mothers were sent to prison or lost custody of children when they refused to allow them to have contact with their father. While this is still possible, the full bench of the court has now said that in some cases there is nothing it can do.
The full bench ruled on the matter after a father, known as Mr Summerby, appealed against a 90-page judgment by a Brisbane federal magistrate, Keith Wilson, which effectively ended his relationship with his daughter.
Mr Wilson agreed that the loss of the girl’s relationship with her father “would be distressful in the short term and may also be emotionally damaging to her in the long term”.
Child Support and Family Law – Free Information Night
A Free Information night will be held at Parramatta RSL – “Hunter Room” Cnr Mcquarie & O’Connell Sts Parramatta on 24th August 2011 from 7pm – 9.30pm. Light Supper provided. Bistro also open with meals from around $10
Barry Williams, National President and founder of Lone Fathers Association of Australia, is organising an information session to discuss problems that people are having that are associated with Child Support and Family Law. He will explain various aspects of the system and assist where possible.
Barry was one of the consultants on the Prime Ministers task force and is hoping to build up a support branch of Lone Fathers Association in Parramatta. If a Branch is formed, then the people in the area ( including re-marrieds, Grandparents and those that are interested in the equality for the children.) will have a support group, not only to assist them at present, but to possibly make submissions towards further changes in the future.
This meeting is open to all the public who wish to attend to find out more information. Ideally friends and relatives can attend on behalf of working parents.
The Child Support Agency has been invited to answer any general questions and possibly provide follow-up with difficult cases.
Lone Fathers Association is at the moment, working on areas of Legislation where they believe them to be unfair. These areas include:-
- A Mechanism to enforce access orders (at the moment pursuing enforcement areas to overcome access denial).
- Access –whether it be paid on days or nights.
- Capacity to earn
YOUR SUPPORT IS CRUCIAL IN LOBBYING FOR CHANGES.
This is a FREE seminar and everyone is welcome to attend. Any donations would be graciously accepted towards our endeavour to create changes for equality.
Child Support Officers will be in attendance as well as Family Lawyers to assist people with problems.
For further information please contact Barry on 0417 668802 or Fae on 0408 723 295
Lone Fathers Association supports all parents and grandparents and is proud to advise that 33% of membership is female.
Fae Stacey (National Secretary LFA) Ph 0408 723 295
Lone Fathers Association
http://www.lonefathers.com.au/
Raise Your Voice, Lose Your Child
“He raised his voice at me, and I was frightened he was going to hurt me and the kids.”
That’s it. That’s all it takes for a man to lose his children in today’s hyper-sensitive landscape of domestic violence prevention.
This sea change can be traced to the days and months following the tragic death of Nicole Brown Simpson, when the public outcry by the domestic violence lobby moved beyond confronting actual physical altercations and began focusing on the perceived threat of violence. By casting such a wide net, centered almost entirely on male against female domestic violence, there have been unintended consequences that play themselves out in Family Court every day.
With nothing more than a woman stating, “I was frightened he might hurt us,” a court can remove a man from his home and prevent him from seeing his children for a minimum of three weeks. Often the court will also order either an anger management or a batterer’s intervention class and generally grant the demand by his ex-spouse that he have supervised visitation.
The intrusion by the courts into family dynamics has become so extreme that the domestic violence laws are no longer being used to protect potential victims, but rather to victimize potential abusers.
Let me be clear about this: in the eyes of the court, all men are considered to be potential abusers. No matter his history, if there was any provocation, or if he was in fact the abused victim. This last point is made even more interesting when considering that female-on-male domestic violence make up 50-percent of all cases, yet it is the man who is singled out as being potentially dangerous. And while as an attorney, my professional life is predicated on “innocent until proven guilty,” and “all” is a word to be carefully considered before using, I will say that due to O.J. Simpson’s horrific, inexcusable, and deadly behavior, a shadow has been cast on all men in all cases.
The courts no longer believe there is any appropriate expression of anger and, in essence, have outlawed the emotion. We have made it strategically impossible for a person to display anger in any form, whether a mental health professional would label it a “healthy expression” or not, without the line being automatically drawn to an actual act of physical violence.
But the fact is that humans have a full range of emotions. We get happy, we get sad, and yes, we get angry. And while it is absurd to think that our judicial system could legislate our happiness or sadness, it appears to gladly accept the notion that expressing anger in any fashion should have legal consequences.
In states across the country, if one parent is determined to be an “abuser”—and in California that means a raised voice—that person is no longer presumed to be a fit parent. The “victim parent” is now presumed to be a better parent and has an advantage when the court makes final determinations of child custody, visitation, and move-away plans to new cities, states, or countries.
This has created the unintended consequence of the strategic domestic violence restraining order. When one parent wants to take unfair advantage in a divorce or paternity case, all that is needed is the granting of domestic violence restraining order and the court will automatically suspend the other parent’s parental rights—usually for a short period. But to the cut-off parent, that brief time can seem like an eternity.
If the court determines that there are grounds for a permanent order, the cut-off parent may be forced to endure a 52-week batterer’s intervention course. The problem with this is that in the flimsy guidelines of what defines domestic violence these days, almost any fact pattern can be twisted to create “violence.”
For fathers who are required to have a monitor to see their children, which is becoming a more common occurrence as a requirement due to the domestic violence allegations, they may be unable to see their children. The costs of a paid monitor can quickly become prohibitive since the man will also be ordered to pay child support, often spousal support, the cost of the batterer’s intervention or anger management classes, and he has to find his own apartment since he’s been evicted from his home.
Domestic Violence Restraining Orders originally were meant to be a protective measure by the courts. But they have become a fast track process by which unscrupulous parties gain sole legal and sole physical custody of the children.
And, as is typical in “win at all cost” child custody cases, it is often the child that suffers the most. The “victim parent” strategy may yield short-term results for the accusing spouse, but the bad lessons learned by the child may last a lifetime.
Fathers who are truly guilty of domestic violence or child abuse should be viewed as criminals and treated as such. But in our rush to avoid these types of tragedies through a “zero tolerance policy,” we have gone against the most important tenet of the law: Innocent Until Proven Guilty. And the result is that we are creating and perpetuating a new type of abuse—the marginalization of fathers.
JULY 20, 2011 BY DAVID PISARRA
Fathers4Equality would like to encourage you to forward this excellent article to the following paternal-Abuse deniers.
Email: Tony.Windsor.MP@aph.gov.au
Email: senator.bob.brown@aph.gov.au
Email: R.McClelland.MP@aph.gov.au
Email: Kate.Ellis.MP@aph.gov.au
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Discover ways of managing family discipline through authority books and management books
Canada: Dads fight to see their kids
While it’s a day all about dad, some fathers aren’t looking forward to Father’s Day, as they won’t be able to spend it with their children. Dads like Brad Corbett, of London, Ontario, have little or no contact with their children due to strained custody situations.
During the separation process, Corbett’s ex-wife had him charged with assault in order to stop his access to their children, then nine and 12. He believes that she had been coached by a lawyer to do so as a tool to ensure she’d receive full custody. “It was well orchestrated systematically,” he explains. “She had been to a lawyer and had me charged with assault. It didn’t matter if it was a false allegation.”
Though the university professor had no pattern of such behaviour or record before or since, Corbett has faced financial problems, feared for his job and had his relationship with his children damaged in the case of the younger, and decimated in case of the older.
Molly Murphy says that this is a situation that happens all too often. She’s written a book illuminating three fathers’ struggles to gain access and regain their dignity in Winner Take All (Dog Ear Publishing, available nationally). Murphy was prompted to write the book when she heard so many woeful tales of men seeking access to their children and having their reputations and finances ruined. A divorcee herself, she’s experienced the problems with Canada’s family law system personally. “I’ve witnessed it and it’s the worst crime I’d seen in my life,” says Murphy.
“Families are set up to fight each other (in divorce). They pay lawyers all kinds of money – from $250 to $500 per hour – and a lot of them lose their income to lawyers, and then (in the case of fathers) have no more money left to fight for custody,” she explains.
Deciding she couldn’t participate in such a travesty when encouraged to go for the family assets, full custody and full support by her own lawyer, Murphy decided to share custody with her ex-husband and that they’d sit down to discuss the children’s financial needs on an ongoing basis. “Not everyone can do that but its best for the children if you can. It truly puts them first.”
Murphy affirms that false claims of assault are sometimes used as weapons in the divorce wars. “False claims of abuse happen; it’s sad but they do happen.”
Corbett has been active in Canadian Equal Parenting Council. CEPC is a national group, according to president Glenn Cheriton, that is trying to bring balance to the system. “We are working to make it (the system) more rational and responsible,” explains Cheriton.
Murphy agrees, “The pendulum has swung from women having no rights to women having all the rights. We have to balance that out.”
Women get full custody in most cases, but Murphy feels that joint custody is the way to go, when possible. “Shared parenting should be assumed. When a child has both a mother and a father, why would one get them, unless the family decides it should be that way because of work schedules or something? And when there are allegations of abuse, make sure they are valid.”
To help parting couples work together for the best interest of the children, and the family as a whole, Murphy feels the solution is to make the system less adversarial. “Get rid of the lawyers and get mediators in there.”
Children are the ones who would win in the long run, and making sure kids are happy and well-cared for is what Father’s Day is all about.
http://www.torontosun.com/2011/06/09/dads-fight-to-see-their-kids
False Allegations of Abuse – Submission by Patrick Parkinson on the Family Violence Bill 2011
There is now a very widespread view in the community that some family violence orders are sought for tactical or collateral reasons to do with family law disputes. People have bcome very cynical about them. A national survey conducted in 2009, with over 12,500 respondents, found that 49% of respondents agreed with the proposition that ‘women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case’, and only 28% disagreed. While it might be expected that men would be inclined to believe this, 42% of women did so as well.
The view that some family violence order applications are unjustified appears to be shared by state magistrates in New South Wales and Queensland. Hickey and Cumines in a survey of 68 NSW magistrates concerning apprehended violence orders (AVOs) found that 90% agreed that some AVOs were sought as a tactic to aid their case in order to deprive a former partner of contact with the children. About a third of those who thought AVOs were used tactically indicated that it did not occur ‘often’, but one in six believed it occurred ‘all the time’. A similar survey of 38 Queensland magistrates found that 74% agreed with the proposition that protection orders are used in Family Court proceedings as a tactic to aid a parent’s case and to deprive their partner of contact with their children.
In research that our research team recently published on the views of 40 family lawyers in NSW, almost all solicitors thought that tactical applications for AVOs occurred, with the majority considering it happened often. In another study based upon interviews with 181 parents who have been involved in family law disputes, we found a strong perception from respondents to family violence orders (both women and men) that their former partners sought a family violence order in order to help win their family law case. This is a quote from one of the women in our study. Her former husband, who we also interviewed, sought an apprehended violence order (AVO) to keep her away from the house after she had left it.
She said this:
“I thought this is ridiculous. What’s he giving me an AVO for? I haven’t done anything to him. I haven’t hit him, kicked him. We never had any violence in our marriage. Why have I got an AVO? … you can put an AVO on someone and say that they’re violent, and the only way you can get a child off their mother is because they’re violent. And that’s why I think he gave me the AVO.”
The belief that family violence orders are a weapon in the war between parents is fuelled by the fact that judges are required under the Family Law Act to consider such family violence orders in determining the best interests of the child. The proposed clause in this Bill takes the law back to what it was before 2006, without any explanation for why Parliament should reverse its previous decision at least to limit the provision. It really doesn’t matter whether this belief that family violence orders are used tactically is true or not. The fact is that the perception is out there and it is held by state magistrates and family lawyers, as well as the wider community.
The retention of this provision in the Family Law Act simply fuels the suspicion that family violence orders are being misused.
This is damaging to the credibility of the family violence order system and the courts.The second reason why the requirement to consider family violence orders ought to be removed is that this serves absolutely no purpose. Yes, the court needs to know about the existence of a current family violence order in order to consider how to frame its own orders (s.60CG), but that is dealt with by requiring people to inform the court of such orders (s.60CF). Why consider them again in deciding what is in the best interests of a child (s.60CC(3))? The court is already required to consider the history of violence. What does it add to require the court also to consider a family violence order? The impression given by the legislation is that these orders are somehow evidence that there has been violence. However, that is a misunderstanding.
Family violence orders have absolutely no evidential value in the vast majority of cases. This is because, in the vast majority of cases, they are consented to without admissions. The hearings in these uncontested cases are very brief indeed. Prof. Rosemary Hunter, in observations in Victoria in 1996–97, found that the median hearing time for each application was only about three minutes. Applications were typically dealt with in a bureaucratic manner, with magistrates being distant and emotionally disengaged. To the extent that applicants were asked to give oral evidence, they were typically asked to confirm the content of their written application, and very little exploration of the grounds for the application took place.
Dr Jane Wangmann, in a recent analysis of court files in NSW, reached finding very similar to Hunter’s. In her observations of AVO matters in 2006–7, she found, like Hunter, that cases were dealt with in three minutes or less. She also noted that the information provided in written complaints was brief and sometimes vague. It is hardly surprising, then, that judges in family law cases draw no inferences from the mere existence of a family violence order. This has been the clear view of family lawyers for the last 15 years.
Indeed, in the research we recently published on the views of 40 family lawyers in NSW, none of the lawyers who responded to the question believed that judicial officers gave AVOs much consideration in determining parenting disputes. Judges, they indicate, want to evaluate the evidence of violence itself, not the fact that another court has made an order about it by consent and without admissions.
Family Law Legislation Amendment (Family Violence) Bill 2011
Submission to Senate Committee on Legal and Constitutional Affairs
by Prof. Patrick Parkinson, University of Sydney
11% of all Americans Falsely Accused of Abuse, Survey Shows
A national survey of 10,000 Americans reveals 11% report they have been falsely accused of abuse. The first-ever survey of its type probed persons’ first-hand experiences with false allegations of child abuse, domestic violence, and sexual abuse. The study was commissioned by Stop Abusive and Violent Environments, a victim advocacy organization.
The survey results headlined a False Allegations Summit, which was held today at the Fairfax Hotel in Washington, DC.
Conducted May 2-4, 2011, the survey also found 15% of respondents personally knew someone who has been falsely accused of abuse. In 81% of the cases the falsely accused person was a male, and in 70% of cases the false alleger was a female. Twenty-six percent of the wrongful accusations were made in the context of a child custody dispute.
“This survey shows tens of millions of Americans have been falsely accused of abuse,” explains SAVE spokesperson Natasha Spivack. “These persons were stamped with the scarlet Abuser label, leaving them to wonder whatever happened to the notion of ‘innocent until proven guilty.’”
The Summit featured statements by leading stakeholder organizations, including the National Association of Criminal Defense Lawyers, Home School Legal Defense Association, American Coalition for Fathers and Children, National Coalition for Men, and Encounters International.
The National Association of Criminal Defense Lawyers statement spotlighted the “immense, often irreparable harm caused to our clients by false allegations, not only to reputation and personal relationships, but often to the accused individual’s livelihood and even heath.”
The Summit also included the emotion-wrought testimonies by four victims of false allegations of abuse.
The False Allegations Summit is being held in the wake of a recent Washington Post front-page article about Sean Lanigan, a local school teacher who was falsely accused of sexual molestation by a 12-year-old student. The article triggered editorial commentaries and citizens’ expressions of disbelief and outrage.
The full survey results can be viewed here: http://www.saveservices.org/false-allegations-awareness-month/survey-results/. The False Allegations Summit is the kick-off to False Allegations Awareness Month in June. More information on the observance can be found here: http://www.saveservices.org/false-allegations-awareness-month/.
Stop Abusive and Violent Environments is a victim advocacy organization working for evidence-based solutions to partner abuse: www.saveservices.org.
Fatherlessness on a grand scale – an open letter to Julia Gillard on the 2011 Family Violence bill
From an email sent to Fathers4Equality:
I would just like to thank Fathers4Equality for all the information and support your group has made available to me over the years, especially during the times when I felt completely dissolutioned and abandoned by the family law system in this country.
Despite the hardships along the way, and for the one year when I was denied contact with my son because of false allegations of child sexual abuse, I now am happy to say that I have a very happy, co-operative and child-focussed shared parenting arrangement with my ex-wife, and have done so now for a number of years.
I however have recently been reading the news that the Gillard Labor government is set to replace the 2006 Shared Parenting laws with a set of malicious, archaic and bizarre set of laws that will presume all separated fathers as being violent and abusive, and from what I have read the legal test will now be subjective, meaning that even provable facts will no longer be a defence for fathers.
I write the following with a strong sense of despair, not for myself, because I now have an unshakable arrangement that both my ex and I, and especially our son, wants to continue.
My despair however is for the next generation of Australian children who will lose contact with their fathers’ because this out-of-touch government has chosen to replace Shared Parenting laws that encouraged mediation and co-operation, with laws that will encourage acrimony and false allegations.
I am actually dumb-founded that the proposed new family laws have ZERO protection for children who have been subject to parental alienation, and ZERO protection for fathers who have been the victims of false allegations. One has to ask what type of family laws they are expected to be when they don’t protect children and fathers, as well as mothers?
I am quite saddened because I personally experienced the overwhelming discrimination faced by fathers in family law as it was, and things will now only get significantly worse with these new laws.
As I said with my case, I have a very co-operative relationship with my ex, and this has been the case since our court case was finalised. However, I too was subject to the most sinister allegations of child sexual abuse by my ex, and I am still at a loss to understand why she made those allegations to begin with. Over a chat recently, she told me that she regretted that episode, and she made reference to being ‘pushed’ by the independent children’s lawyer to make the allegations she made.
None of this makes sense to me, as I still cannot fathom how someone can make such sinister allegations that they knew as un-thruths, or should reasonably have known, but what I have learned over the years is that false allegations are by no means the exception in family law, and I have since read possibly hundreds of cases of eerily similar stories to mine.
In any case, the allegations against me were roundly condemned by almost all the experts called in Court, from DoCs, doctors, psychologists, the family counsellor and others, to a point where my ex was condemned by the Judge for not being completely truthful in her testimony, or otherwise having developed irrational beliefs. The Judge lamented that our child was needlessly paraded from one doctor to another, in an effort to find someone who agreed with my ex’s allegations.
I say ‘almost all the experts condemned the allegations’, because the one exception was the independent children’s lawyer, a most malicious women whom I will never forget for her breath-taking personal comments to me prior to the start of our hearing, and for her relentless demands in Court that I not be allowed to see the child again unsupervised.
This woman was however forced to admit in Court, only after being repeatedly challenged by the Judge, that there was absolutely no evidence that any child abuse ever happened, but she kept on defending her demands by arguing that there was “no evidence that child abuse did not occur.” (In fact there was abundant evidence that nothing occurred….but I will not digress)
I recall like it was yesterday the first thing this malicious woman said to me as I introduced myself to her on the morning of the hearing: “I will not support any over-night contact with you because it will reduce the mother’s child support”, she said.
When I responded by saying: “What has that got to do with the family law act?”, she said, “Everything, as far as I am concerned!”
To cut a long and painful episode short, I have put all this behind us now and my son has excelled in everything from school to sports since then, with both my meaningful support and likewise from his mother.
Our shared-parenting arrangement is rock-solid, and my son is a great testament to how two people who have everything in common when it comes to their child, will make it work given the right laws being in place.
However, with these laws changing, I see an end to stories like mine, because the influence of these malicious persons, who seem to be present in one capacity or another in almost ever family law case, will eventually win out, forcing an outcome which may be ideologically in keeping with their hate-inspired gender views, but completely inconsistent with the charter of their profession, which should be to protect the best interests of the child.
Because of the likes of Prime Minister Julia Gillard, Attorney General Robert McLelland, and every member of Parliament who have so far supported passage of the Family Law Legislation Amendment (Family Violence) Bill 2011, family law will no longer encourage co-operation between separated parents. It will once again be about winner-takes-all, and this will bring out the worst in most parents, at the expense of our children.
With the Gillard government removing any penalties for false allegations, with its redefinition of abuse to include events that have never occurred or not likely to occur, where even a side-ways look will now be considered domestic violence, and with the drastic slashing of funding to Family Relationship Centres, it is clear that being a decent and loving father is no longer good enough in this country, because the presumption that stands is that separated fathers are violent, and no amount of evidence will dispute this.
…and sadly, the malicious anti-male zealots in privileged positions, like the Independent Children’s Lawyer in my case, Miss Jane Weber of the NSW Legal Aid Commission, will now be able to systemically abuse the unprotected victims of the family law system, without the necessary checks and balances that have been so desperately needed in the most exploited area of law in this country.
If fatherlessness on a grand scale is the goal of this legislation Miss Gillard, then it sure has the makings of success, but no doubt we will one day look back at another stolen generation and ask ourselves, “how did we let it happen again?”
Labor’s Flawed Family Law Reform – where only men wear black hats
Editor: The great irony is that McLelland has used the Darcy Freeman tragedy to provide the basis for the effective dismantling of Australia’s Shared Parenting legislation, and yet this legislation never applied in the Freeman case, and if it had, this tragedy would very likely not have occured.
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COUPLES feuding over the custody of their children after separation often have reached the lowest point in their lives. For some, the legal system seems to block access to their offspring and becomes a natural target for their pain.
Fathers groups have a political target as well this year because the agonising process of resolution could be made longer and more hazardous, especially for men.
The Gillard government is introducing sweeping changes to the Family Law Act after three inquiries found the act does not give sufficient protection to victims of family violence. Providing it could mean longer proceedings.
But the controversial changes look likely to get the support of both sides of politics.
If passed, family violence will be defined as not only violent but also threatening or other behaviour that “coerces or controls” and causes children or former partners to be fearful. Examples listed are assault, stalking, repeated derogatory taunts, unreasonably denying the person financial autonomy, maiming pets and intentionally damaging or destroying property. The bill also changes the definition of child abuse to include psychological damage caused by exposure to family violence.
While there is community consensus that domestic violence should not be tolerated at any level, there is a philosophical and political debate about how far violence can be defined before it becomes open to manipulation and legal abuse by parties using the court system.
Fathers groups fear the broadening of the definition will put them in a situation where they are falsely accused of certain behaviour and lose custody of, or access to, their children.
In its submission to a Senate inquiry, Men’s Health Australia says the proposed changes will give an open licence to parents — mostly mothers — who wish to fabricate allegations of violence and abuse as a strategy in family law proceedings.
Controversially, it says the proposed expanded definition of family violence incorporates much of what is considered normal conflict in separating families as well as the abusive behaviour of ongoing dominance or violence that must be addressed. “It is unrealistic not to expect heightened emotions, and even raised voices and put-downs, in most relationship breakdowns. There needs to be a distinction between this normal behaviour and the abuse of physical assault and emotional terrorism,” it says.
“An AVO [apprehended violence order] is not subject to the test of evidence and should not be accorded weight without investigation by the Family Court into its nature and circumstances.”
Family Court Chief Justice Diana Bryant argues many cases close to completion could be prolonged, putting children at extra risk by log-jamming the courts and increasing family stress.
The danger in the government’s bill is that the laws can be applied to cases that have already largely been heard, Bryant argues in a submission to the Senate committee examining the legislation.
The retrospectivity means cases not finalised could be presented with new evidence, causing a delay in the delivery of judgments.
The present era of reform began in 2006 when the Howard government took the unprecedented step of overhauling the entire family law system. The centrepiece was a requirement that shared parenting, allowing children the right to continue to know both parents, be the main goal for the Family Law Court.
The move received bipartisan support from Labor despite strong internal resistance from feminist elements in the party who were concerned it would deprive mothers of rights and could put children at risk. Five years on, the Gillard government — after reports criticising the new shared-care system — has revealed its hand and unveiled its own version of family law reform.
The Labor government’s reforms wind back what some see as excesses in the Howard reforms. Tony Abbott’s Coalition initially came out condemning the rollback, but its legal spokesman George Brandis has since suggested the new laws may win his party’s support.
Under Labor Attorney-General Robert McClelland, the legislation before federal parliament places greater weight on child safety, meeting a key criticism of the Howard reforms.
It will make it easier for parents to produce evidence of violence when parents are in dispute over child-contact arrangements.
McClelland tells Inquirer the new Family Law Legislation Amendment (Family Violence and Other Measures) Bill provides an overarching definition of family violence and contains a list of examples of harmful behaviour that would be captured by the definition.
Importantly, he says, the definition avoids an element of intent as “this would exclude some behaviour that has a powerful and ongoing coercive and controlling effect. A requirement to prove intent would also discourage victims of family violence to disclose violent behaviour.”
The government believes the Howard changes made it hard for women to make allegations of domestic violence in custody disputes because they could end up with costs awarded against them and increase the chances of shared care being ordered. But the new legislation has attracted the ire of shared parenting supporters, such as groups representing fathers, who say the changes will encourage unproven accusations to gain sole custody.
The government, which originally put out a draft bill in November last year, has since made crucial concessions before unveiling its final bill earlier this year. Sensing a backlash from fathers groups, the government has backed away from more radical plans to remove the shared parenting provision.
Under the proposed new laws, the Family Court will still have to consider whether each of the parents has encouraged, rather than been hostile to, a close and continuing relationship between their child and former partner when awarding custody.
But the government has refused to back away from its dramatically expanded definition of what constitutes violence and it is here that a divisive battle lies.
The government has gone with a formulation used by the Australian and NSW Law Reform commissions.
One of the bill’s critics is Sydney Law School family law professor Patrick Parkinson, architect of the Howard government’s original family law changes, who argues the new broad definition of violence in the bill is flawed and could be abused. While the bill has been pared back since November, Parkinson worries the government has still not got the balance right. He supports the thrust of the Labor legislation in his submission to the Senate’s review of the laws but says the opening words of the definition simply require that the behaviour complained of “coerces or controls” a family member. He says this is flawed because it does not say the person accused of such behaviour needs to have the intention of coercing or controlling.
“It would certainly be problematic if someone could be held to have engaged in violent behaviour without intending to do so because his or her former partner felt coerced or controlled.”
Parkinson also objects to the requirement for the court to consider making family violence orders, arguing these are seen by many as a “weapon in the war between parents”. “There is now a very widespread view in the community that some family violence orders are sought for tactical or collateral reasons to do with family law disputes,” he says.
Parkinson urges the removal of another section of the bill defining financial or economic abuse, arguing it raises contestable issues about finances in relationships.
“In my view it is preferable if the legislation does not open up endless arguments by self-represented litigants on such issues,” he says.
Parkinson tells Inquirer it is also important the resources of the court are focused on the women and children most at risk of serious harm.
“The broader the definition, the more people come within it, and the more scope there is for arguments in court about various kinds of bad behaviour that are reprehensible but don’t represent serious future risks to women or children,” he says.
“Domestic violence is a very serious problem and there is evidence of a history of violence in a substantial proportion of the cases that come before the courts.
“So the problem is how to focus the already stretched resources of the courts on the cases where there is the greatest risk.”
Relationships Australia, one of the peak national family counselling groups, has come out strongly in support of the new expanded definition of violence. Relationships Australia national executive officer Alison Brook says the government should go even further in defining violence.
“We recommend that threats of physical harm to family members, including threats of self-harm (as a controlling behaviour) be included,” Relationships Australia says in a Senate submission.
One of the lobby groups fighting the changes — the Joint Parenting Association — argues the 2009 death of four-year-old Darcey Freeman at the hands of her father is behind the changes.
Association spokesman Yuri Joakimidis says: “A mere allegation that the behaviour caused a family member to ‘be fearful’ would be enough to establish family violence. This is not the usual legal test or standard of proof and such an allegation would be almost impossible to refute.
“Additionally, the proposal fails to distinguish between truly menacing verbal behaviour and transient verbal expressions of anger and put-downs that flow both ways in most relationship breakdowns.”
But while concerns over the expanded definition are widespread among fathers groups, the Family Law Council wants to broaden further the definition of abuse. In its submission to the Senate the council says it is concerned about the use of the word “serious” in the proposed definition of child abuse, as this could imply that some child abuse and neglect is not serious.
The Attorney-General says the broadened definition is widely endorsed by the community and will protect children.
http://www.theaustralian.com.au/national-affairs/commentary/breaking-up-its-not-me-it-is-you/story-e6frgd0x-1226050956301
