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«IN THE BEST INTERESTS OF THE CHILDREN: A PERSEPCTIVE OF THE 2006 AMENDMENTS TO THE FAMILY LAW ACT The Hon. John Faulks Deputy Chief Justice, Family ...»

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The cynic might remark in the context of the comments made above that it is extremely unlikely that very many of the disputes before the Family Court are capable of resulting in an optimal relationship. A relationship may be as meaningful as it is capable of being in all of the circumstances if it involves only very limited time with or communication with one of the parents. The legislation does not prescribe the importance of a child‟s having “as meaningful a relationship with each parent as is practicable in all the circumstances.” Nevertheless, for the reasons set out above, the concept of “meaningful relationship” is not absolute, notwithstanding the opinions of some parents who come to the Court because they have been unable to find solutions for themselves.

Godfrey& Sanders shows that maintenance of a meaningful relationship does not necessarily prevail over other „best interest‟ factors. In that case

Justice Kay concluded that the federal magistrate:

–  –  –

Similarly, the Full Court in Goode & Goode was clear that although the reforms evince a legislative intention in favour of substantial involvement by both parents in their children‟s lives, that intention is subject to the need to protect children from harm and to the court‟s being satisfied that Patrick Parkinson, „Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179, pp. 184-5.

any arrangements which enable parents to have that level of involvement in their children‟s life is both in the child‟s best interests and reasonably practicable.23 It is beyond argument that the pathway which is followed to arrive at a decision in contested parenting proceedings is different in many important respects from the one followed prior to 1 July 2006. However, the destination – namely that the orders made must be in the best interests of a child, in all the circumstances – remains the same.

Violence The presumption of equal shared parental responsibility does not apply in cases of family violence or in cases of child abuse.24 Family violence is

defined in section 4 of the Act as:

–  –  –

This is a very wide definition of conduct that causes fear and deprivation and is about control and intimidation as well as physical acts of violence.

The legislature decided, quite rightly in my view, that violence and child abuse is so serious that it is not appropriate for a presumption that parental decision-making be shared equally be applied.

(2006) 93-286 at 80,901.

Family Law Act 1975 (Cth), s 61DA(2).

Assessing the veracity of allegations of violence and abuse is one of the most difficult tasks that Family Court judges face. Almost always in such matters it is a case of the victim‟s word against the accused, with little (if any) corroborative evidence available to the Court. Yet it is essential that the court makes a careful, considered and detailed evaluation of the evidence available to it so as to make orders which best secure the safety of children and other family members.

The difficulties associated with this task were revealed by the Australian Institute of Family Studies‟ (AIFS) Allegations of Violence and Child Abuse in Family Law Children’s Proceedings report.25 The AIFS found that many of the allegations of violence made in children‟s proceedings in the Family Court and the Federal Magistrates Court were at the “severe” end of the spectrum; and yet a considerable number of allegations were accompanied by a low level of specificity, low levels of corroborative evidence and either denials or a complete absence of responses.

The issue of family violence, particularly as it affects children, has long been of concern to the Family Court. This has been evidenced in myriad ways, including the Court‟s development and implementation of its overarching Family Violence Strategy and the Magellan program, a national case management system for disputes involving serious allegations of physical or sexual abuse of children.

The AIFS report emphasises the importance of reliable evidence in making assessments as to the credibility of allegations and the level of risk of violence and/or abuse that a child may be exposed to if particular Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: a pre-reform exploratory study, Australian Institute of Family Studies, Commonwealth of Australia, 2007.

parenting arrangements are put in place. The study emphasises that without such evidence, the Court is unable to make positive findings about the allegations and therefore they cannot be given significant weight in the „factual matrix‟.

It is of course not the role of the Family Court to investigate allegations of violence and/or abuse as opposed to assessing evidence put before the Court. The responsibility for investigation lies with State and Territory governments. However, the amendments to the Act impose specific obligations on courts, including the Family Court, to identify, at an early stage, matters in which issues or allegations of violence or abuse are raised and make appropriate orders about the collection of evidence and the protection of parties and children.26 Parties who raise issues of violence and/or abuse in children‟s cases are required to file a Notice of Child Abuse or Family Violence and a supporting affidavit. In the Family Court, as soon as the notice is filed the matter is referred to a Duty Registrar who decides where it should be listed and what orders should be made procedurally to ensure that relevant evidence will be before the Court. These could include orders for the preparation of an expert report, the appointment of an Independent Children‟s Lawyer or the intervention of a State welfare agency. Urgent cases requiring interim orders, such as protective injunctions, go directly before a judicial officer.





Since 1 July 2006, the Court can also make orders for a State or Territory agency to provide information and documents to the Court relating to Family Law Act 1975 (Cth), s 60K.

child abuse or family violence.27 These documents can include notifications of suspected violence or abuse of a child and any reports of assessments or investigations into a notification. The Family Court, together with the Federal Magistrates Court, has undertaken nation-wide consultation with State authorities and developed protocols for the production of these reports.

The issue-based focus of the Less Adversarial Trial and the greater control exercised by the trial judge over the conduct of proceedings, including the evidence to be relied upon, enables the Family Court to bring a more structured and purposive approach to its consideration of allegations of violence and abuse. The Child Responsive Program, which the Court is introducing across Australia, similarly refines the issues in dispute in a supportive environment where early disclosure of dysfunctional behaviour is encouraged.

Better securing the physical safety of litigants who have experienced violence is also a priority area of activity for the Family Court. All members of the Family Court‟s non-judicial staff have received dedicated training in assisting clients whose safety may be at risk. This training has been augmented by the screening and risk assessment pilot, which was successfully tested and evaluated in 2005-06. The screening and risk assessment process has now been introduced on a national basis.

Where the Court forms the view that it is appropriate for a child to spend time with a parent against whom allegations of violence or abuse have been made, it can order that any interactions between the parent and the child be supervised by a professional child supervision agency or a Ibid s 69ZW.

trusted third party. Family consultants can also be required to supervise or assist compliance with parenting orders.28 Ordinarily, however such provisions should only operate temporarily but as with all matters relating to children the Court must assess what would be in the child‟s best interests and this will turn on the circumstances proved in each case. What may be appropriate for a short time while investigations are completed or evidence gathered for determination by the Court may be inimical to the child‟s interests if prolonged.

It is always the best interests of the child which are of concern. No matter how fair or unfair some precautions may seem to the parents the Court‟s ultimate duty is towards the child. That is not to suggest that a court can or should behave arbitrarily. Almost always the proper application of the principles of natural justice will also satisfy the securing of the child‟s best interests. However the most exquisitely difficult situations involve allegations which are at the point when an order is sought, either inadequately proved or incapable of resolution at that point because of time constraints.

For example, urgent applications may only be able to be assessed on the papers filed because the judge does not have the time in his or her docket to provide the more substantive investigation required. In such cases the judge must balance risk and all the other factors relating to the child‟s best interests using only the inadequate and hastily prepared material available. This is not intended as a criticism of lawyers and their clients.

However, in urgent situations it is not always possible to assemble admissible and relevant evidence quickly. This deficit does not relieve Ibid, s 65L.

the judge of his or her responsibility to make the order which best satisfies the provisions of the Act in the circumstances. What it does do is to make that task very difficult.

Rebuttal of Presumption of Equal Shared Parental Responsibility Many of the cases which come to the family Court are unlikely to be those in which the appropriate circumstances exist for the parents to share parental responsibility equally. In such cases it will be rare for the presumption to remain unanswered by evidence. The difficulties and inappropriateness of some parents sharing parental responsibility for their children, let alone sharing substantial amounts of time with their children, have been evaluated in a preliminary way by McIntosh and Chisholm.29 The cases that come for final determination by the Family Court are often those where the parents‟ communication is minimal, the relationship is characterised by distrust or cases where one parent lives a significant distance away from the other (or wants to).

The Family Court at the direction of the Chief Justice has begun to record the outcomes of its orders, including the arrangements either ordered by the Court or consented to by the parents. It is too early to evaluate the effect that the new legislation is having on the sorts of orders Family Court judges are making but a preliminary assessment suggests that there are more orders being made which share either parental responsibility or time or both. In many cases of course the time spent with one parent will be significantly less than one half.

Jennifer McIntosh and Richard Chisholm, „Shared care and children's best interests in conflicted separation. A cautionary tale from current research‟, (2007-8) 20 Australian Family Lawyer 3.

The presumption of equal shared parental responsibility may work well in cases where informed parents willingly agree and co-operate for that result. These cases are unlikely to end up in the Family Court for final determination. The circumstances that contribute to effective shared parental responsibility are those that have the characteristics identified by McIntosh and Chisholm, such as the ability to communicate, childfocussed arrangements, a commitment from everyone to making arrangements work, geographical proximity, flexible work arrangements, financial security (especially for women) and shared confidence in each parent‟s ability to physically and emotional care for their child or children.30 A judge cannot reasonably impose equal shared parental responsibility on parents that are unwilling or unable to make it work. That does not preclude the possibility of the child spending time with a parent without allocating or sharing parental responsibility, again, if that time would be in the child‟s best interests. The Legislature cannot make laws to make people co-operate; judges cannot make orders to change human relationships.

Equal Time and Substantial and Significant Time

It appears from our preliminary data that in most cases that come before the Family Court on a contested basis and proceed to judgment, equal shared parental responsibility is not ordered. As such, the Court is not statutorily obligated to go on to consider equal time or substantial and significant time.31 However, that is not the end of the matter. Irrespective Ibid p. 1.

Family Law Act 1975 (Cth), s 65DAA(1) and (2).

of the presumption, a party may seek an order for equal time or for significant and substantial time or such an arrangement could also be recommended by the appointed independent children‟s lawyer, which would oblige the Court to consider it. Indeed, the Court may itself, independent of the parties‟ positions, consider whether equal time or substantial and significant time would be in the best interests of the child (although the parties would be given a right to make submissions). The court may make an „equal time‟ or „substantial and significant time‟ order after consideration of all the evidence pertaining to the various section 60CC considerations. This may (and usually does) involve the evaluation of evidence from expert witnesses.

Relocation I have heard it suggested that a likely effect of the shared parenting laws is to make it more difficult for parents to relocate with their children, especially where a parent is seeking to move a long distance away.

This argument is advanced on the basis of a confluence between the legislature‟s emphasis on children maintaining a meaningful relationship with both parents, many of the „additional‟ section 60CC factors (in particular the practical difficulty and expense of a child spending time with a parent), and consideration of section 60CC(4), which takes into account the extent to which both parents have fulfilled or failed to fulfil their responsibilities as parents.



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