Australian Family Law Act - Essay Example

Family Law The Family Law Act has failed to keep pace with societal change within Australia; it is an outdated and irrelevant piece of legislation Name of Student: Student No.: Date: Name of Supervisor: The Family Law Act has failed to keep pace with societal change within Australia; it is an outdated and irrelevant piece of legislation The Family Law Act of 19751 was amended and as of 7th June 2012 in order to give priority to children in cases of the child’s best interests when it comes to parenting. These changes were designed to keep child from harm and determining the child’s best interest. These changes were: The definition of ‘family violence’ as well as ‘abuse’ was altered to mirror current understanding of these terms by outlining with clarity the specific behaviours that are undesirable encompassing physical and emotional abuse and exposing children to violence in the family. Honing in on the factors to be considered by the court as pertains to family violence orders in the process of considering the child’s best interests. Advisors to be obliged more emphatically to prioritise children’s safety by requiring the same of family consultants, counsellors, dispute resolution practitioners and legal representatives. Ensure that the access that courts have to evidence of family violence and abuse is enhanced by improving the requirements for reporting. Ease the participation of child protection agents at the state and territory level to take part in family law proceedings2. Violence in the family takes place across the board without discrimination as to age, geographic location, ethnicity, race, religion, socio-economic status or occupation. However, it has emerged that it is specific to gender including child abuse. Men are the majority of perpetrators, and women and children tend to be the victims. Statistics show that 23% of Australian women have experienced or are experiencing abuse of a physical or sexual nature from a man3. This trend was also recorded years later when 34% of Australian women were said to have undergone one or more types of violence from their current or former partners4. Child abuse on the other hand has far less reliable statistics. The Australian Institute of Health and Social Welfare has attempted to provide credible statistics since 1991 and that as well as statistics from various child protection agencies at state and national level estimates that over three hundred thousand children require protection. There seems to be no overlap between these children and those that come before family law courts5. A dearth of data exists as to how widespread child abuse is when it comes to parental separation especially as pertains to their being directly affected by any form of abuse. Information does exist on children and teenagers as secondary victims6. Information from the ABS in 2006 showed that of those who experienced violence from a previous partner, 61% had children within their care while 49% of those with currently abusive partners also had children in their care in the course of their relationship7. These figures are corroborated by police reports. Police in Victoria reported dealing with 28,000 incidents of family violence in 2005 and children were present in 48% of the cases8. There is a strong correlation between child abuse and family violence and many parental separations occur on their account. It has been estimated that of all separations taking place, 66% are due to issues of violence and abuse9. Just because separation occurs however, is no reason to think that the abuse stops. A family law case is usually initiated when one partner seeks the court’s protection for herself and her children from an abusive member of the household, or when family violence is cited in a parenting proposal hearing. A case in point is Davidson v Davidson10 in which the allegations of drug and alcohol abuse as well as family violence were leveled against the father. The judge ordered a psychiatric evaluation of the same, but in the meantime, the child was ordered to spend two days in every week with the alleged abuser. This means that the child is still exposed to an environment of mental if not physical abuse. The judge also refrained from ordering the father to refrain from imbibing alcohol at the time when the child is residing with him, and left it to the ‘father’s discretion’ as well as to the discretion of the family members that the father was living with. This completely defeats the point of having legislation in place that puts the interest of the child first because in this case, the interpretation is that the interest of the child is to see both parents. This is regardless of the parental environment. Increasing the requirements for reporting abuse means that the child ‘Young J’ will continue to be exposed to a potentially abusive situation until there is overt evidence that abuse is taking place, in spite of the claims of the other parent. Another study conducted by the Australian Institute of Family Studies using a random selection of three hundred case law files from Family and Federal Magistrates courts, featuring proceedings filed in Adelaide, Melbourne and Dandenong. 50% of these files featured allegations of either adult or child family violence and abuse11. There was a broad occurrence of allegations categorised as severe. The majority of spousal abuse was in form of physical ( actual or threatened) as well as emotional or verbal abuse and damage to property. When child abuse was alleged, it usually was in conjunction with adult family violence. Child abuse most often took the form of physical abuse12. This allegation report asserted in its literature review that a majority of family violence takes place behind closed doors and victims are reluctant to air their dirty laundry in public. They often make excuses for manifestations of physical abuse. Even if they eventually get enough courage to leave, they have little or no proof of the abuses they have suffered. This would explain why the court cases surveyed in the Moloney report had for the large part no strong supporting evidence. In addition to this, the most prevalent response to allegations was ‘no response’ and this added to the allegations culminated in very low data being available. Therefore legal advice and decision making occurred in very uncertain conditions. There is no evidence that this situation has changed even with the amended changes to the Family Law Act. In fact, an assessment of court files after the fact show that the percentage of cases alleging violence before and after the reforms remains constant13. This reinforces the argument for a more stringent method of screening and assessment that is applied consistently because as can be seen by the case above involving Davidson v Davidson, the rate of orders for shared time has gone up since the reforms14. Item 17 of the Family Violence Bill recommends the inclusion of subsection 60CC(2a) in which the determination of the child’s best interests is done giving priority to protecting the child from harm over having a significant relationship with both parents. This can be illustrated in the case of Doolan v East15 where both parents have criminal pasts, there is evidence of family violence and incidences of verbal and physical abuse toward the adult but not the child. Under the amendments, this situation would be considered to be abusive to the child as well, and the father was allowed to see the child in a supervised capacity only while sole parental responsibility was given to the mother. This is in spite of the mother displaying instances of passing out from substance abuse while in custody of the child. In this case, determining the best interests of the child have taken a back seat to expediency. Both parents have shown evidence of at least mentally abusive behaviour, but the child is still retained in their custody because according to the law, it constitutes the child’s best interests. Conclusion The recent changes to the Family Law Act 1975, while well intentioned, have already been overtaken by events. Furthermore, they do not really reflect a fundamental change from the previous provisos. In defining the best interests of the child, a priority has been given to protecting the child from harm, as opposed to having a meaningful relationship with both parents. As has been seen from case law examples and studies done, the outcome for the child remains the same because the issues that are pertinent to determining in what way the child has been put in harm’s way has not changed. Mental abuse is difficult to pin down, unless a psychological evaluation of the child’s state is done. This involves significant interaction with the child in order to note if there is a change in behaviour. As can be seen by the case of Doolan v. East, where the choice was virtually between a rock and a hard place, there should be a provision for a an alternative option in extreme cases as outlined. These illustrations clearly prove that the law does not really achieve what it set out to do, and further research is necessary in order to come up with a law that is more effective and relevant to the current situation as is. Other situations have also not been taken into account such as the changing face of the nuclear family, cultural issues that are prevalent in a multicultural setting such as Australia where complex family dynamics prevail. In addition to that, the bias seems to favour violence against women, and does not take into account abuse by women. All the studies evaluated seem to have a bias towards violence perpetuated by the father figure even though mental as well as emotional abuse can be just as easily perpetrated by women. As is seen by the Doolan v East case, the woman was also guilty of criminal behaviour, lies and substance abuse. However, her misdemeanours have been minimised in comparison to those of her partner’s. This reeks of discrimination against the male partner, which should not be part of contemporary jurisprudence. The courts would therefore be better served by throwing out the amendments made to the Family Law Act and instituting more effective measures that can cope with the situation as is rather than in a theoretical capacity. Bibliography A. Articles/Books/Reports Alexander, R. Behind Closed Doors: Family violence cases under the Family Law Act outlined and analysed' (2009) 20(4) Australian Family Lawyer 1-12 Australian Bureau of Statistics. Women’s Safety Australia. 1996. www.abs.gov.au/ausstats/abs%40.nsf/5e3ac7411e37881aca2568b0007afd16/b62deb3ac52a2574ca2568a900139340!OpenDocument Australian Government Changes to Family Law from 7 June 2012. (2012) http://www.ag.gov.au/Families/Currentissuesinthefamilylawsystem/Documents/2308%20Family%20Law%20Fact%20Sheet.pdf Humphreys, C. Domestic Violence and Child Protection: Challenging directions for practice. 2007. Issues Paper 13. http://www.austdvclearinghouse.unsw.edu.au/ Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., Qu, L. and the Family Law Evaluation Team. (2009). Evaluation of the 2006 family law reforms. Melbourne: Australian Institute of Family Studies. Moloney, L., Smyth, B., Weston, R., Richardson, N., Qu, L., & Gray, M. Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study (Research Report No. 15). (2007) Melbourne: Australian Institute of Family Studies. Mouzos, J. & Makkai, T. 2004. Women's experiences of male violence : findings from the Australian component of the International Violence Against Women Survey (IVAWS). Research and public policy series no. 56. Canberra: Australian Institute of Criminology Williams, Z. The Commercialisation of Childhood, Compass, 2006 B. Cases Davidson v Davidson (No. 2) [2012] Famca 462 Doolan v East [2012] FamCA 459 C. Legislation Family Law Act 1975 (Can) 53 Read More