On 24 March 2011, the Attorney-General announced and introduced into Parliament the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. This followed consultation on the Family Law Amendment (Family Violence) Bill 2010 Exposure Draft, which was supported by 73% of respondents. While the proposed changes are an important first step to better protecting the safety of women and children in the family law system, more changes are necessary to ensure the family law system does not jeopardise the safety of women and children:
1. No ifs, no buts: Safety first in family law
2. One size does not fit all: No presumptions in family law
3. Making primary carer’s safe increases children’s safety
4. The amendments: just a first step
Children’s emotional and physical safety and the safety of other family members should be the priority in family law. Safety of children and other victims of violence is not only about protecting them from future violence but also about addressing their current needs, taking into account the impact that the violence has had on them individually. The Family Law Amendment (Family Violence) Bill 2011 prioritises safety only in cases where “there is an inconsistency” between achieving a safe outcome for a child and a child having an ongoing meaningful relationship with another person. This is not enough.
Safe outcomes in families should not be made subject to other considerations, such as ‘proving an inconsistency’. A clear statement in legislation making children’s safety and the safety of other family members a priority is required and needs to be ‘backed up’ by a legislative framework that supports safe outcomes.
The presumption of equal shared parental responsibility and the emphasis in the Family Law Act on shared parenting, over and above other parenting outcomes, places children and other family members, who have experienced domestic violence, in danger. We all know that each family and each individual child in each family is unique and has different needs. This is especially true for children who have experienced violence and abuse. However, the amendments do not touch the presumption or the shared parenting provisions. How can legislation presume one outcome when there are so many different possibilities?
Parenting arrangements should be in the best interests of each child, worked out on a case-by-case basis. The safety and well-being of families is too important to not take the time to judge each case on its own merits; especially, when issues of domestic violence and abuse are involved.
It makes sense that if the primary carers of children are emotionally and physically safe from violence and abuse then this will be positive for their children. The safety of children is not just about preventing violence directed against them, it is about the safety and well being of their family and enabling all members of the family to heal from past violence. It defies logic that in legal practice “a parent who is violent to their partner can be considered a bad partner but a good parent”. This must stop. Legislation should protect primary carers and recognise their significant role in children’s lives (especially in very young children) because it is important for the emotional development of children, in the short and long term.
Overall, the direction of change detailed in the Bill is positive; especially the provisions that remove disincentives to victims of violence reporting abuse such as the ‘friendly parent’ and ‘false allegations costs provisions’. However, much more has to be done. Importantly, amendments to the current drafting needs to be made in line with recommendations made in the Women’s Legal Services Australia submission so that unintended consequences and re-victimisation of victims of violence and their children are avoided.