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Contrary to newspaper reports the conservative Liberal/National opposition in Australia did not support the Gillard Labor government’s controversial 2011 family law amendments that were passed by just one vote in a hung parliament.
Breaking up: it's not me, it is you
By Patricia Karvelas
May 07, 2011
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.
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
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."
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.
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.
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
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