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The 2012 Family Law Changes

 

nicola-roxonOn 7 June 2012 major changes to family law have come into effect (the so-called anti-Shared Parenting provisions), relating to how the courts treat allegations of family violence in child custody disputes. 

The amendments to the Family Law Act, and in particular to the Shared Parenting provisions enacted in 2006, are in response to persistent lobbying pressure primarily from women’s groups, who took issue with the Family Law Act’s emphasis on providing children meaningful contact with both parents, in cases where allegations of abuse were not justified.

Women’s groups ostensibly argued that a child’s right to a meaningful relationship with both parents should not be a priority for the Courts, and especially should not be considered when allegations of abuse have been made. 

Unfortunately, allegations of abuse are easily made, some with merit and others that are completely without basis, but what the Courts had previously focussed on was whether ‘allegations’ of abuse were substantial enough to warrant protective measures. The new 2012 provisions have changed this equation to provide for any allegations that are made, regardless of whether they are substantial or not, or whether they are genuine or not, or whether they are rational or not, and even if they are knowingly false. As the Family Law Act currently stands, all allegations that are made, from the most serious to the most batty, can and will be triggers within the Act to deny one parent (mostly the father), any and all contact with their children.

According to the Attorney General’s press release at the time of the changes, the new amendments were aimed to better prioritise the safety of children whilst still recognising the importance of children maintaining a relationship with both parents after separation. The truth of the matter however has been that many ‘safeguards’ against child abuse and false allegations were removed, in order to bring the Family Law Act back to its original purpose, being the purveyor of sole custody families. What most people within the family law industry understand is that the goal of these new amendments is to reduce shared parenting outcomes and to increase sole parenting outcomes, and the amendments will be judged on this basis alone.

The amendments, which were passed by Federal Parliament in late 2011, significantly change the definition of “family violence” within the Act. The definition will be much broader and will include behaviour which coerces, controls or causes fear to a family member. The new definition also re-aligns the nexus of violence and abuse from its self-evident standpoint of an act that has occurred or will reasonably occur, to an act that has never occurred, could not rationally have occurred, and one that is never likely to occur. The test of allegations and their veracity according to this act will merely be if someone claims that an act of abuse or violence has occured or may at some point occur, regardless of how reasonable or rational that claim may be. 

So for instance if a mother has an irrational and unsubstantiated fear that the paternal grandmother is a pathological child sexual abuser, what matters most in deciding whether the paternal grandmother can see her grandchild is not the ‘material facts’ of the case, but the alleged subjective fears of the mother. In other words, what really happened or what is likely to happen is no longer the singular driving force behind the act. The defining incident in establishing abuse according to the act is now whether the mother believes what she has alleged, regardless of its truth, reason or rationale. 

The amendments provide examples of what may be family violence, including unreasonably withholding financial support or preventing a family member from keeping connections with extended family. The amendments also recognise that exposing a child to family violence, which is not limited to a child personally witnessing an act of violence, may constitute child abuse. It all goes without saying that if any of these broad, almost universal, most often temporary and benign behaviours that can to some degree be claimed to be present in all separations, that these existence of these behaviours will invariably be used to justify that the father his limited or no contact with his children, while the mother claims the mantle of sole custody. 

By broadening the definition to “family violence”, the Gillard government has ensured that family violence can be defined to be almost anything, whether it be raising your voice, slamming the door, talking over someone, in fact even doing nothing and not being present, because what matters now is no longer what occurred, but what someone claims to “feel”, no matter how fabricated this may sound. 

These changes also remove previous penalties for the making of knowingly false allegations of family violence or child abuse. The Gillard changes have removed s117AB, which previously modestly penalised a parent who made knowingly false allegations in Court, by making them rsponsible for part of the legal fees of the innocent party who incurred costs in defending themselves against the false allegations. 

It should be noted that these amendments only apply to cases started in the Family Law Courts on or after 7 June 2012 (including any other jurisdiction handlinga family court matter). If couples were involved in a parenting dispute before the Courts prior to this date, then these amendments will not have any impact on their proceedings. 

Likewise, the amendments do not impact any orders which may have been made by the court prior to 7 June 2012. It is likely that many parents will want their orders reconsidered by the Court in light of the amendments and the new definitions of family violence and abuse. However, such parents are only entitled to have their matters reconsidered by the court if there has been a material or significant change in their circumstances, and the family violence law reform does not in itself represent such a change that would enable the court to reopen a case. 

These new law reforms impact upon the requirements for compulsory mediation. Prior to 7 June 2012, the law required parents to attend mediation (known as Family Dispute Resolution) before they could start proceedings in court, with certain exemptions relating to allegations of family violence. These exemptions have now broadened to include a a larger cross-section of behaviours, many of which do not include any act of violence or abuse. 

As a result of the broadening definition of family violence, we expect to see more couples making allegations of family violence, and as a result avoiding any and all requirements for mediation. This is likely to significantly increase the number of matters the Court is asked to rule on without the benefit of couples resolving issues through mediation.