Tuesday, 29 May 2012
Monday, 28 May 2012
Speech to West African community leaders
Last week, at the invitation of Australia's CEO Challenge, I spoke to community leaders from countries in French speaking west Africa, including:
- Republic of the Congo
- Mali (who were lucky to attend, as they had been delayed due to the shutdown of their international airport due to a coup)
- Togo
- Burkina Faso
I talked about my role as a White Ribbon Ambassador. The group were keen to learn about the White Ribbon Day movement of men saying that they were opposed to violence against women. While I did talk about what I had done in my life so far to oppose domestic violence, including my role as a White Ribbon Ambassador, I decided that it was important that my audience be inspired to oppose domestic violence.
I considered that the way of doing this was to tell them four universal truths:
- Domestic violence is pervasive. It occurs throughout the world. It does not occur, for example, merely in developing countries, but also in rich developed countries such as Australia. The meeting was at Waterfront Place, Brisbane, at the offices of Minter Ellison, who have been very generous supporters of Australia's CEO Challenge. I pointed to the Story Bridge. I said that on her first day of school, but before she got there, Darcey Freeman's dad threw her off a similar bridge, in the presence of Darcey's brothers and other motorists, prompting a shakeup of Australia's family law system about how it dealt with domestic violence. I said that only a few weeks before a man had thrown his 2 year old child off the Story Bridge, and then killed himself too by throwing himself off.
- To change the system, to make us all safer, requires courage. The courage to speak up and to do things, even if they are not popular, but are necessary.
- Ordinary people, people like me who are not in positions of great power and privilege, with courage, strength of will, organisation and above all persistence, can achieve change. I said that substantial, postive change had been achieved, and the domestic experience is now a much safer one than it was a generation ago, although much remains to be done.
- It is necessary to remain optimistic. Change can and does happen. While reality should always take hold, to be able to dream of change, and act on that change enables a change away from violence to occur. To be accepting of violence is to take a defeatist and pessimistic view, which ultimately will be a self-fulfilling one of reinforcing no change.
Disclosure: I am the Deputy Chair of Australia's CEO Challenge.
Family Violence Bill
I recently delivered a seminar for Australia's CEO Challenge about the Family Violence Bill amendments to the Family Law Act.
Since 1985, I have helped thousands of clients with their domestic violence issues.
Here is my paper:
[6]
At [26]-[28]
Since 1985, I have helped thousands of clients with their domestic violence issues.
Here is my paper:
Family
Violence Bill 2011
By
Stephen Page
Australia’s
CEO Challenge
14
May, 2012
Family
Law Act Amendments
The
Family Law Legislation Amendment (Family
Violence and Other Measures) Act 2011 received royal assent on 7 December
2011. The Bill only applies to proceedings commenced on or
after the commencement date, in this respect 7 June, 2012. Certain portions of that Act
commenced on 7 December 2011, most importantly as to who is able to witness
affidavits in the Family Court, with the insertion of a new section 98AB of the
Family Law Act [and I note the previous rules on swearing affidavits in the
Federal Magistrates Court still apply in that court – under section 186 of the
Evidence Act 1995], other portions commenced on 4 January 2012 [amendments to
the Bankruptcy Act 1966 and related amendments to the Family Law Act], but the
family violence provisions do not commence until 7 June 2012.
There
are some significant changes with which we must all be familiar.
The
explanatory memorandum says, relevantly:
“The
Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
(the ‘Family Violence Bill’) will amend the Family Law Act 1975 (Cth) to
provide better protection for children and families at risk of violence and
abuse. The Bill also makes several
technical amendments which correct drafting and minor policy oversights and
provide other efficiencies for the courts and litigants.
The
Family Violence Bill responds to reports received by the Government into the
2006 family law reforms and how the family law system deals with family
violence. The reports indicate that the
Act fails to adequately protect children and other family members from family
violence and child abuse. These reports
are the Evaluation of the 2006 family law reforms by the Australian Institute
of Family Studies (AIFS); Family Courts Violence Review by the Honourable
Professor Richard Chisholm AM; and Improving responses to family violence in
the family law system: An advice on the intersection of family violence and
family law issues by the Family Law Council.
Other
research reports on family violence, shared care and infant development further
provide a strong evidence base for reform.
These reports are: Family Violence and Family Law in Australia: the
Experiences and Views of Children and Adults from Families who Separated
Post-1995 and Post-2006 collaboratively produced by Monash University, the
University of South Australia and James Cook University; Shared Care Parenting
Arrangements since the 2006 Family Law Reforms by the Social Policy Research
Centre of the University of New South Wales; and Post-separation parenting
arrangements and developmental outcomes for infants and children by Jennifer
McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wills and Caroline Long.
The
safety of children is of critical importance and the Government takes the issue
of addressing and responding to family violence and child abuse very
seriously. The family law system must
prioritise the safety of children to ensure the best interests of children are
met. The Family Violence Bill sends a
clear message that family violence and child abuse are unacceptable.
These
amendments address issues of significant community concern by strengthening the
role of family courts, advisers and parents in preventing harm to children
while continuing to support the concepts of shared parental responsibility and
shared care, where this is safe for children.
The
key amendments made by the Family Violence Bill will:
·
prioritise the safety of children
in parenting matters;
·
change the definitions of ‘abuse’
and ‘family violence’ to better capture harmful behaviour;
·
strengthen advisers obligations
by requiring family consultants, family counsellors, family dispute resolution
practitioners and legal practitioners to prioritise the safety of children;
·
ensure the courts have better
access to evidence of abuse and family violence by improving reporting
requirements; and
·
make it easier for state and
territory child protection authorities to participate in family law proceedings
where appropriate.”
Definition of abuse
The
definition of “abuse” will change. It
will be:
“ ‘Abuse’, in relation to a child, means:
(a) an assault, including a sexual assault,
of the child; or
(b) a person (the first person) involving
the child in a sexual activity with the first person or another person in which
the child is used, directly or indirectly, as a sexual object by the first
person or the other person, and where there is unequal power in the
relationship between the child and the first person; or
(c) causing the child to suffer serious
psychological harm, including (but not limited to) when that harm is caused by
the child being subjected to, or exposed to, or exposed to, family violence; or
(d) serious neglect of the child.”[2]
Comment:
• There was a change to the assault
definition in (a) so that no longer does the assault need to occur “which is an offence under a law, written or
unwritten, enforced in a State or Territory in which the act constituting the
assault occurs” and can therefore occur outside Australia.
• There is no change to paragraph (b).
• Paragraph (c) is new and there is are
new definitions of “exposed to” and “family violence”.
• Paragraph (d) is new.
• The much wider definition of “abuse”
to include the child suffering serious psychological harm or serious neglect
has significant implications in practice including mandatory notifications
which I will refer to below.
The
explanatory memorandum states:
“As
with the existing definition of ‘abuse’, proposed paragraph (a) provides that
an assault, including a sexual assault, amounts to abuse. However, the new definition will remove the
requirement for the assault to be an offence under an enforceable law in a
State or Territory. This means that
those working with the Act, including courts, legal practitioners and family
members will not be required to have regard to the terms of State and Territory
laws when considering whether abuse has occurred. The new definition will remove uncertainty
about knowing the elements of an offence and whether an offence has been
committed…
The
meaning of neglect is not defined and therefore takes its ordinary
meaning. Neglect encompasses a range of
acts of omission including failure to provide adequate food, shelter, clothing,
supervision, hygiene or medical attention.”
Definition of
“member of family”
This
is repealed in section 4(1) and altered in section 4(1AB), and a similar
alteration at the beginning of section 4(1AB).
The
explanatory memorandum states:
“Item
4 repeals the existing definition of ‘member of the family’ in subsection 4(1)
and inserts a new definition which refers the reader to revised subsection
4(1AB). This amendment moves the
description of the purposes for which the definition applies to the substantive
definition.”
Definition of
“family violence”
The
current definition of “family violence” in section 4(1) is to be repealed. It provides:
“
‘Family violence’ means conduct, whether actual or threatened, by a person
towards, or towards, or towards the property of, a member of the person’s
family that causes that or any other member of the person’s family reasonably
to fear for, or reasonably to be apprehensive about, his or her personal
wellbeing or safety.
Note:
A person reasonably fears for, or is reasonably apprehensive about, his or her
personal wellbeing and safety in particular circumstances if a reasonable
person in those circumstances or fearful, or be apprehensive about, his or her
personal wellbeing or safety.”
There
is to be a new definition in section 4AB.
The
definition is significantly wider and removes the need for reasonableness that
was criticised about the definition in section 4(1). The section set out below sets out examples
of family violence but significantly there are these:
• Repeated derogatory taunts;
• Unreasonably denying the family
member their financial autonomy that he or she would otherwise have had;
• Unreasonably withholding financial
support needed to meet the reasonable living expenses of a family member, or
his or her child, at a time when the family member is entirely or predominantly
dependent on the person for financial support;
• Preventing the family member from
making or keeping connections with his or her family, friends or culture.
It
is reasonable to assume in light of this much wider definition that there will
be significantly more notices in Form 4 –Family Violence or Risk of Family
Violence than have been filed to date.
The
definition in section 4AB provides:
“(1) For the purposes of this Act, family violence means violent,
threatening or other behaviour by a person that coerces or controls a member of
the person's family (the family member ), or causes the family member to be
fearful.
(2) Examples of behaviour that may constitute family violence
include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy
that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the
reasonable living expenses of the family member, or his or her child, at a time
when the family member is entirely or predominantly dependent on the person for
financial support; or
(i) preventing the family member from making or keeping
connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the
family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences the
effects of family violence.
(4) Examples of situations that may constitute a child being
exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of
the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family
by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's
family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has
intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an
incident involving the assault of a member of the child's family by another
member of the child's family.”
The
explanatory memorandum states:
“The
examples recognise the wider range of behaviour experienced by victims of
family violence. The inclusion of
examples will not exclude any behaviour that is within the general
characterisation set out in subsection 4AB(1).
For example, threats of suicide and self-harm are not mentioned in the
definition or examples of ‘family violence’, but will be captured by the
definition where the threat is intended to coerce, control or cause a family
member to be fearful.”
Significantly “exposed” to family violence is
defined in the new section 4AB(3):
“If
the child sees or hears family violence or otherwise experiences the effects of
family violence.”
As
long ago as 1994[3] it
was clear that the Family Court recognised that there could be an impact on
children from family violence even when they did not see or hear it. The definition makes plain that direct
exposure is not required. As you will
have seen above, there is a wide list of examples of when the child might be
exposed to family violence as set out in section 4AB(4).
The
explanatory memorandum states:
“This
reflects current social science and approaches to child protection, which
indicate that exposure to violence threatens a child’s physical, emotional,
psychological, social, education and behavioural wellbeing…
The
examples clarify that there does not have to be intent for a child to hear,
witness or otherwise be exposed to family violence.”
Goodbye to Families,
Marriage and Separation
Section
12G, which requires us to give this brochure to clients or the other party,
will be repealed as of 7 June. This
will inevitably mean that some forms will change.
Alteration of the
objects of part 7
Probably
the most significant amendment to the Act is also the shortest. For the first
time, the courts will be required, as will we as practitioners, to take an
explicit human rights perspective when dealing with parenting matters. An
additional object has been added pursuant to section 60B:
“To
give effect to the Convention on the Rights of the Child done at New York on 20
November 1989.”
The
convention may be found on Austlii[4].
It
might appear that the Convention has been incorporated into municipal law.
Contrast this to the approach by Mason CJ and Deane J in Teoh’s case (1995)[5]:
“But
the fact that the Convention has not been incorporated into Australian law does
not mean that its ratification holds no significance for Australian law. Where
a statute or subordinate legislation is ambiguous, the courts should favour
that construction which accords with Australia's obligations under a treaty or
international convention to which Australia is a party, at least in those cases
in which the legislation is enacted after, or in contemplation of, entry into,
or ratification of, the relevant international instrument. That is because
Parliament, prima facie, intends to give effect to Australia's obligations
under international law.
It
is accepted that a statute is to be interpreted and applied, as far as its
language permits, so that it is in conformity and not in conflict with the
established rules of international law. The form in which this principle has
been expressed might be thought to lend support to the view that the
proposition enunciated in the preceding paragraph should be stated so as to
require the courts to favour a construction, as far as the language of the
legislation permits, that is in conformity and not in conflict with Australia's
international obligations. That indeed is how we would regard the proposition
as stated in the preceding paragraph. In this context, there are strong reasons
for rejecting a narrow conception of ambiguity. If the language of the
legislation is susceptible of a construction which is consistent with the terms
of the international instrument and the obligations which it imposes on
Australia, then that construction should prevail. So expressed, the principle
is no more than a canon of construction and does not import the terms of the
treaty or convention into our municipal law as a source of individual rights
and obligations.
28.
Apart from influencing the construction of a statute or subordinate legislation,
an international convention may play a part in the development by the courts of
the common law. The provisions of an international convention to which
Australia is a party, especially one which declares universal fundamental
rights, may be used by the courts as a legitimate guide in developing the
common law. But the courts should act in
this fashion with due circumspection when the Parliament itself has not seen
fit to incorporate the provisions of a convention into our domestic law.
Judicial development of the common law must not be seen as a backdoor means of
importing an unincorporated convention into Australian law. A cautious
approach to the development of the common law by reference to international
conventions would be consistent with the approach which the courts have
hitherto adopted to the development of the common law by reference to statutory
policy and statutory materials. Much will depend upon the nature of the
relevant provision, the extent to which it has been accepted by the international
community, the purpose which it is intended to serve and its relationship to
the existing principles of our domestic law.[6]”
(emphasis added)
Although
Teoh’s case has been applied[7],
Parliament is now saying explicitly that the Convention should be given effect.
However, the explanatory memorandum states that the Convention has not been incorporated as municipal law:
“The
purpose of this object is to confirm, in cases of ambiguity, the obligation on
decision makers to interpret Part VII of the Act, to the extent its language
permits, consistently with Australia’s obligations under the Convention. The Convention may be considered as an
interpretive aid to Part VII of the Act.
To the extent that the Act departs from the Convention, the Act would
prevail. This provision is not equivalent to incorporating the Convention into
domestic law.
24. Australia ratified the Convention in 1990
and, in doing so, committed to protecting and ensuring children's rights. The Convention contains the full range of
human rights – civil, cultural, economic, political and social rights. These rights can be broadly grouped as protection
rights, participation rights and survival and development rights. One of the main principles on which the
Convention is based is the obligation to have regard to the best interests of
the child as a primary consideration in decision-making. Part VII of the Act is based on this same
principle; although the best interests of the child are elevated to ‘paramount’
status in several provisions. The
reference to the Convention in section 60B does not adversely affect these
provisions in Part VII or dilute the meaning of ‘paramount consideration’. Nothing in the Convention prevents Australia
enacting stronger protections for the rights of the child than the Convention
itself prescribes.”(emphasis
added)
Significant
portions of the Convention are these:
• Portion
of the recital.
In
the Universal Declaration of Human Rights, the United Nations has proclaimed
that childhood is entitled to special care and assistance.
• Convinced that the family, as a
fundamental group of society in the natural environment for the growth and
well-being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its
responsibilities within the community.
• Recognizing that the child, for the
full and harmonious development of his or her personality, should grow up in a
family environment, in an atmosphere of happiness, love and understanding.
• Considering that the child should be
fully prepared to live an individual life in society, and brought up in the
spirit of the ideals proclaimed in the Charter of the United Nations and in
particular in the spirit of peace, dignity, tolerance, freedom, equality and
solidarity.
• Bearing in mind that, as indicated in
the Declaration of Rights of the Child, “the child, by reason of his physical
and mental immaturity, needs special safeguards and care, including appropriate
legal protection, before as well as after birth”.
• Recognizing that, in all countries in
the world, there are children living in exceptionally difficult conditions, and
that such children need special consideration.
• Taking due account of the importance
of the traditions and cultural values of each people for the protection and
harmonious development of the child.
• Article
1. For the purposes of the present
Convention, a child means every human being below the age of eighteen years
unless, under the law applicable to the child, majority is obtained earlier.
• Article
2 States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child’s or his or her parent’s
or legal guardian’s race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or
other status.
• Article
2 paragraph 2 States Parties shall take all appropriate measures to ensure
that the child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or beliefs of the
child’s parents, legal guardians, or family members.
[I
note that the child must be protected against all forms of discrimination
because of, for example, the religious beliefs of one of the child’s
parents. It may well be that the court
has to take into account, to ensure that there is compliance with the
convention, the religious beliefs of both
of the parents, including if one parent does not have religious beliefs.]
• Article
3 point 1 In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
• Article
3 point 2 States Parties undertake to ensure the child such protection and
care as is necessary for his or her well-being, taking into account the rights
and duties of his or her parents, legal guardians, or other individuals legally
responsible for him or her, and, to this end, shall take all appropriate
legislative and administrative measures.
• Article
3 point 3 States Parties shall ensure that the institutions, services and
facilities responsible for the care or protection of children shall conform
with the standards established by competent authorities, particularly in the
areas of safety, health, and the number and suitability of their staff, as well
as competence at provision.
• Article
5 States Parties shall respect the responsibilities, rights and duties of
parents or, where applicable, the members of the extended family or community
as provided for by local custom, legal guardians or other persons legally
responsible for the child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by
the child of the rights recognized in the present Convention.
• Article
6 point 2 States Parties shall ensure to the maximum extent possible the
survival and development of the child.
• Article
7 point 1 The child shall be registered immediately after birth and shall
have the right from birth to a name, the right to acquire a nationality and, as
far as possible, the right to know and be cared for by his or her parents.
• Article
8 point 1 States Parties undertake to respect the right of the child to
preserve his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference.
• Article
8 point 2 Where a child is illegally deprived of some or all of the
elements of his or her identity, the parties shall provide appropriate
assistance for protection, with a view to speedily re-establish his or her
identity.
• Article
9 point 1 States Parties shall ensure that a child shall not be separated
from his or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable law and
procedures, that such separation is necessary for the best interests of the
child. Such determination may be
necessary in a particular case such as one involving abuse or neglect of the
child by the parents, or one where the parents are living separately and a
decision must be made as to the child’s place of residence.
• Article
9 point 2 In any proceedings pursuant to paragraph 1 of the present
article, all interested parties shall be given are[sic.] opportunity to
participate in the proceedings and make their views known.
• Article
9 point 3 Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct contact with
both parents on a regular basis, except if it is contrary to the child’s best
interests.
• Article
10 point 1 In accordance with the obligation of states parties under
article 9, paragraph 1, applications by a child or his or her parents to enter
or leave a state party for the purpose of family reunification shall be dealt
with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the
submission of such a request shall entail no adverse consequences for the
applicants and for the members of their family.
• Article
10 point 2 A child whose parents reside in different States shall have the
right to maintain on a regular basis, save in exceptional circumstances
personal relations and direct contact with both parents. Towards that end and in accordance with the
obligation of States Parties under Article 9, paragraph 1, States Parties shall
respect the right of the child and his or her parents to leave any country,
including their own, and to enter their own country. The right to leave any country shall be
subject only to such restrictions as are prescribed by law and which are
necessary to protect the national security, public order (ordre public), public
health or morals or the rights and freedoms of others and are consistent with
the other rights recognised in the present Convention.
• Article
11 point 1 States Parties shall take measures to combat the illicit
transfer and non return of children abroad.
• Article
12 point 1 States Parties shall assure to the child who is capable of
forming his or her own views the right to express those views freely in all
matters affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child.
• Article
12 point 2 For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of national
law.
• Article
14 point 1 States Parties shall respect the right of the child to freedom of
thought, conscience and religion.
• Article
14 point 2 States Parties shall respect the rights and duties of the
parents and, when applicable, legal guardians, to provide direction to the
child in the exercise of his or her right in a manner consistent with the
evolving capacities of the child.
• Article
14 point 3 Freedom to manifest one’s religion or beliefs may be subject
only to such limitations as are prescribed by law and are necessary to protect
public safety, order, health or morals, or the fundamental rights and freedoms
of others.
• Article
16 No child shall be subjected to
arbitrary or unlawful interference with his or her privacy, family, home or
correspondence, nor to unlawful attacks on his or her honour and reputation.
• Article
16 point 2 The child has the right to the protection of the law against
such interference or attacks.
• Article
18 point 1 States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities for
the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The best interests of the child will be their
basic concern.
• Article
18 point 2 For the purpose of guaranteeing and promoting the rights set
forth in the present Convention, States Parties shall render appropriate
assistance to parents and legal guardians in the performance of the
child-rearing responsibilities and shall ensure the development of
institutions, facilities and services for the care of children.
• Article
19 point 1 States Parties shall take all appropriate legislative,
administrative, social and educational measures to protect the child from all
forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while in the
care of parent(s), legal guardian(s) or any other person who has the care of
the child.
• Article
19 point 2 Such protective measures should, as appropriate, include
effective procedures for the establishment of social programmes to provide
necessary support for the child and for those who have the care of the child,
as well as for other forms of prevention and for identification, reporting,
referral, investigation, treatment and follow up of instances of child
maltreatment described heretofore, and, as appropriate, for judicial
involvement.
• Article
20 point 1 A child temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to remain in that
environment, shall be entitled to special protection and assistance provided by
the State.
• Article
20 point 2 States Parties shall in accordance with their national laws
ensure alternative care for such a child.
• Article
20 point 3 Such care could include, inter alia, foster placement, kafalah
of Islamic law, adoption or of necessary placement in suitable institutions for
the care of the child. When considering
solutions, due regard shall be paid to the desirability of continuity in a
child’s upbringing and to the child’s ethnic, religious, cultural and
linguistic background.
• Article
23 point 1 States Parties recognise that a mentally or physically disabled
child shall enjoy a full and decent life, in conditions which ensure dignity,
promotes self-reliance and facilitate the child’s active participation in the
community.
• Article
24 [in part] States Parties
shall ensure full implementation of [the right of the child to enjoyment of the
highest attainable standard of health and of facilities for the treatment of
illness and rehabilitation of health] and, in particular, shall take
appropriate measures: ….(e) to ensure
that all segments of society, in particular parents and children, are informed,
have access to education and are supported in the use of basic knowledge of
child health and nutrition, the advantages of breast feeding, hygiene and
environmental sanitation and the prevention of accidents.
• Article
24 point 3 States Parties shall take all effective and appropriate measures
with a view to abolishing traditional practices prejudicial to the health of
children.
• Article
27 point 1 States Parties recognise the right of every child to a standard
of living adequate for the child’s physical, mental, spiritual, moral and
social development.
• Article
30 In those states in which ethnic, religious or linguistic minorities of
persons of indigenous origin exist, a child belonging to such minority or who
is indigenous shall not be denied the right, in community with other members of
his or her group, to enjoy his or her own culture, to profess and practise his
or her own religion, or to use his or her own language.
• Article
31 point 1 States Parties recognize the right of the child to rest and
leisure, to engage in play and recreational activities appropriate to the age
of the child and to participate freely in cultural life and the arts.
• Article
31 point 2 States Parties shall respect and promote the right of the child
to participate fully in cultural and artistic life and shall encourage the
provision of appropriate and equal opportunities for the cultural, artistic,
recreational and leisure activity.
• Article
33 States Parties shall take all appropriate measures, including
legislative, administrative, social and educational measures, to protect
children from the illicit use of narcotic drugs and psychotropic substances as
defined in the relevant international treaties, and to prevent the use of
children in the illicit production and trafficking of such substances.
• Article
34 [in part] States Parties undertake to protect the child from all forms
of sexual exploitation and sexual abuse.
• Article
35 States Parties shall take all appropriate national, bilateral and
multilateral measures to prevent the abduction of, the sale of trafficking
children for any purpose or in any form.
• Article
36 States Parties shall protect the child against all other forms of exploitation
prejudicial to any aspects of the child’s welfare.
• Article
37 States Parties shall ensure that:
(a) no child shall be subject to torture or
other cruel, inhuman or degrading treatment or punishment …
• Article
39 States Parties shall take all appropriate measures to promote physical
and psychological recovery and social reintegration of a child victim of any
form of neglect, exploitation, or abuse; torture or any other form of cruel,
inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take
place in an environment which fosters the health, self respect and dignity of
the child.
• Article
41 Nothing in the present Convention shall affect any provisions which are
more conducive to the realization of the rights of the child and which may be
contained in:
(a) the law of the State Party; or
(b) international law enforced for that
State.
• Article
54 The original or the present Convention, in which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary General of the United Nations.
Section 60CC changes
The
most significant change is that to the primary considerations, with the
insertion of a new subsection (2A):
“(2A) In applying the considerations set out in
subsection (2), the court is to give greater weight to the consideration set
out in paragraph (2)(b).”
A
reminder: this is what subsection (2) provides:
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship
with both of the child's parents; and
(b) the need to protect the child from physical or psychological
harm from being subjected to, or exposed to, abuse, neglect or family
violence.”
The
friendly parent provisions in the current (3)(c), (4) and (4A)are removed. This
is the current (3)(c):
“(c) the willingness and ability of each of the child's parents to
facilitate, and encourage, a close and continuing relationship between the
child and the other parent”.
This
is the new (3)(c) and (ca):
“(c) the extent to which each of the child's parents has taken, or
failed to take, the opportunity:
(i)
to participate in making
decisions about major long-term issues in relation to the child; and
(ii)
to spend time with the child; and
(iii)
to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or
failed to fulfil, the parent's obligations to maintain the child.”
Changes
to the friendly parent provisions come after the criticisms of Professor
Chisholm[8]:
“On
the material available, it seems likely that the friendly parent provision,
s 60CC(3)(c),while it might have had a beneficial effect in many
situations, has had the undesirable consequence in some cases of discouraging
some parents affected by violence from disclosing that violence to the family
court. It is appropriate, therefore, to consider whether some amendment would
remove this undesirable consequence while retaining the value of the provision
in encouraging parents in ordinary circumstances to facilitate the child’s
relationship with the other parent.
If
the legislation seeks to spell out what is good parenting, it should do so in a
way that is appropriate for all the cases that come to the family courts. If
the legislation is to state the general desirability of facilitating children’s
relationship with the other parent, it should be done in such a way that it
also recognises that there are circumstances in which parents need to take
action to protect their children, and in some cases this means making serious
allegations against the other parent. It is important in these cases that the
understandable desire to emphasise the importance of parents supporting each
other should not inadvertently lead to provisions that deter or discourage the
parent from taking such protective action where this is necessary to protect
the children.”
S.60CC(3)(k)
as to family violence orders is repealed, to be replaced with:
“(k) if a family violence order applies, or has
applied, to the child or a member of the child's family--any relevant
inferences that can be drawn from the order, taking into account the following:
(i)
the nature of the order;
(ii)
the circumstances in which the
order was made;
(iii)
any evidence admitted in
proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the
order;
(iv)
any other relevant matter.”
Professor
Chisholm said about the current s.60CC(3)(k)[9]:
“(W)hat
is important is the evidence or information relevant to the risk, rather than
whether or not a different court has made a family violence order, or what
evidence was before the court when it did make the family violence order.
The
old paragraph (k), in my view, does not deal appropriately with this matter. By
including family violence orders in this list of matters relevant to the
assessment of children’s interests, it might be taken as suggesting that the
order itself is a factor that should be taken into account. It then partly
retreats from that suggestion by excluding interim and non-contested orders.
The rationale is, obviously, that it may be wrong to infer from the making of
such orders that there is a risk of violence. But is the implication that the
court should infer that there is a risk of violence from the making of final
and contested orders?
I
doubt if that was the intention, and in my view the legislation should not give
the impression that the court will infer from the order itself that a child is
at risk. Such an impression, whether or not it reflects what the court will actually
do, might well encourage people to seek family violence orders in order to gain
some advantage in family court cases.
In
my view the law should do everything possible to enable the court to know about
current family violence orders, so it can avoid making orders that
inadvertently clash with them. Otherwise, what is important is that the court
should learn about the factual circumstances that might suggest a risk to the
child or other person, regardless of what was the basis of a previous family violence
order. As one legal submission pointed out, ‘It is the underlying allegations
that are far more important to the Court in determining the case than the
existence or otherwise of an order’.”
There
is a new s.60CH requiring disclosure of actions taken by child protection
services, such as the Department of Communities:
“60CH Informing court of care arrangements under
child welfare laws
(1)
If a party to the proceedings is
aware that the child, or another child who is a member of the child's family,
is under the care (however described) of a person under a child welfare law,
that party must inform the court of the matter.
(2)
If a person who is not a party to the
proceedings is aware that the child, or another child who is a member of the
child's family, is under the care (however described) of a person under a child
welfare law, that person may inform the court of the matter.
(3)
Failure to inform the court of
the matter does not affect the validity of any order made by the court.
However, this subsection does not limit the operation of section 69ZK (child
welfare laws not affected).
60CI Informing court of notifications to, and
investigations by, prescribed State or Territory agencies
(1) If:
(a)
a party to the proceedings is
aware that the child, or another child who is a member of the child's family,
is or has been the subject of:
(i)
a notification or report (however
described) to a prescribed State or Territory agency; or
(ii)
an investigation, inquiry or
assessment (however described) by a prescribed State or Territory agency; and
(b)
the notification, report,
investigation, inquiry or assessment relates to abuse, or an allegation,
suspicion or risk of abuse;
that
party must inform the court of the matter.
(2) If:
(a)
a person who is not a party to
the proceedings is aware that the child, or another child who is a member of
the child's family, is or has been the subject of:
(i)
a notification or report (however
described) to a prescribed State or Territory agency; or
(ii)
an investigation, inquiry or assessment
(however described) by a prescribed State or Territory agency; and
(b)
the notification, report,
investigation, inquiry or assessment relates to abuse, or an allegation,
suspicion or risk of abuse;
that person may inform the court
of the matter.
(3) Failure
to inform the court of the matter does not affect the validity of any order
made by the court.
(4) In
this section:
"prescribed
State or Territory agency" means an agency that is a prescribed State or
Territory agency for the purpose of section 69ZW.”
There is a new duty
imposed on us in advising clients in addition to that under s.63DA:
“60D Adviser's obligations in
relation to best interests of the child
(1) If
an adviser gives advice or assistance to a person about matters concerning a
child and this Part, the adviser must:
(a)
inform the person that the person
should regard the best interests of the child as the paramount consideration;
and
(b)
encourage the person to act on
the basis that the child's best interests are best met:
(i)
by the child having a meaningful
relationship with both of the child's parents; and
(ii)
by the child being protected from
physical or psychological harm from being subjected to, or exposed to, abuse,
neglect or family violence; and
(iii)
in applying the considerations
set out in subparagraphs (i) and (ii)--by giving greater weight to the
consideration set out in subparagraph (ii).
(2) In
this section:
"adviser"
means a person who is:
(a)
a legal practitioner; or
(b)
a family counsellor; or
(c)
a family dispute resolution
practitioner; or
(d)
a family consultant.”
This addition answers
the criticism of Professor Chisholm, who stated[10]:
“In
my view the present wording of s 63DA is inconsistent with one of the two major
themes of the legislation. It effectively invites the professional to ignore
issues of family violence and safety, and focus only on the benefits of
parental involvement. By doing so it seems likely to have exposed people to
increased risks of violence, by contributing to the impression that the family
law system is more interested in encouraging parents to be involved than in
respecting the safety of children and adults.”
Section
65DAA has been amended, by the deletion of this note in (5), which deals with
reasonable practicality:
“Note
1: Behaviour of a parent that is
relevant for paragraph (c) may also be taken into account in determining what
parenting order the court should make in the best interests of the child.
Subsection 60CC(3) provides for considerations that are taken into account in
determining what is in the best interests of the child. These include:
(a)
the willingness and ability of each of the
child's parents to facilitate, and encourage, a close and continuing
relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)
the attitude to the child, and to the
responsibilities of parenthood, demonstrated by each of the child's parents
(paragraph 60CC(3)(i)).”
Obligations to notify the
Department
Currently
a party alleging abuse or risk of abuse must file and serve a form 4, pursuant
to s.67Z. This obligation has been extended to independent children’s lawyers,
because the term “party” has been substituted with “interested person” which is defined as:
“(a) a party to the proceedings; or
(b) an independent children's lawyer who represents the interests of a
child in the proceedings; or
(c) any other person prescribed by the regulations for the purposes of
this paragraph.”
Furthermore,
the mandatory reporting regime
imposed on court officials and independent children’s lawyers in cases of abuse
under s.67ZA(2) must be complied with, unless it is known that a prior
notification has taken place. Subsections (2) to (4) will now read:
“(2) If the person has reasonable grounds for suspecting that a child
has been abused, or is at risk of being abused, the person must, as soon as
practicable, notify a prescribed child welfare authority of his or her
suspicion and the basis for the suspicion.
(3)
If the person has reasonable
grounds for suspecting that a child:
(a)
has been ill treated, or is at
risk of being ill treated; or
(b)
has been exposed or subjected, or
is at risk of being exposed or subjected, to behaviour which psychologically
harms the child;
the
person may notify a prescribed child welfare authority of his or her suspicion
and the basis for the suspicion.
Note: The obligation under subsection (2) to notify
a prescribed child welfare authority of a suspicion that a child has been
abused or is at risk of being abused must be complied with, regardless of
whether this subsection also applies to the same situation.
(4)
The person need not notify a
prescribed child welfare authority of his or her suspicion that a child has
been abused, or is at risk of being abused, if the person knows that the
authority has previously been notified about the abuse or risk under subsection
(2) or subsection 67Z(3), but the person may notify the authority of his or her
suspicion.”
If
a party or an independent children’s lawyer alleges
that there has been family violence or risk of family violence, then the form 4
must be filed by that person:
“67ZBA Where interested person makes allegation of
family violence
(1) This section applies if an
interested person in proceedings for an order under this Part in relation to a
child alleges, as a consideration that is relevant to whether the court should
make or refuse to make the order, that:
(a)
there
has been family violence by one of the parties to the proceedings; or
(b)
there
is a risk of family violence by one of the parties to the proceedings.
(2) The interested person must file a
notice in the prescribed form in the court hearing the proceedings, and serve a
true copy of the notice upon the party referred to in paragraph (1)(a) or (b).
(3) If the alleged family violence
(or risk of family violence) is abuse of a child (or a risk of abuse of a
child):
(a)
the
interested person making the allegation must either file and serve a notice
under subsection (2) of this section or under subsection 67Z(2) (but does not
have to file and serve a notice under both those subsections); and
(b)
if
the notice is filed under subsection (2) of this section, the Registry Manager
must deal with the notice as if it had been filed under subsection 67Z(2).
Note: If an allegation of abuse of a child (or a
risk of abuse of a child) relates to a person who is not a party to the
proceedings, the notice must be filed in the court and served on the person in
accordance with subsection 67Z(2).
(4) In this section:
"interested person" in
proceedings for an order under this Part in relation to a child, means:
(a)
a
party to the proceedings; or
(b)
an
independent children's lawyer who represents the interests of the child in the
proceedings; or
(c)
any
other person prescribed by the regulations for the purposes of this paragraph.
"prescribed form" means
the form prescribed by the applicable Rules of Court.
"Registry Manager" has
the same meaning as in section 67Z.”
Section 117AB is
repealed.
This
provision requires a court to make a costs order against a party who has made a
wilfully false statement or allegation in the proceedings. Against the urgings
of the Law Council of Australia, which considered that it was unnecessary, the
section was added as a result of lobbying from men’s rights groups, who
asserted that women often made false allegations of domestic violence and
sexual abuse.
Women’s
groups asserted that the section would be used to intimidate women from raising
issues of domestic violence or sexual abuse, in fear of possibly being made to
pay costs. In my view the repeal is consistent with ensuring that domestic
violence and abuse allegations can be properly dealt with by the court, so that
a party is not intimidated from raising issues in fear of having an adverse
costs orders made against them.
Stephen Page
Harrington
Family Lawyers
12
March 2012
[1]
Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an
accredited family law specialist and has had a long involvement with domestic
violence issues. He was the Queensland Law Society representative during
consultation sessions with the community as to the draft Domestic and Family Violence Protection Bill in 2011.
[2]
S.4
[3]
JG and BG (1994) FLC 92-515
[5]
Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh
[1995] HCA 20; (1995) 128 ALR 353; (1995) 69 ALJR 423; (1995) EOC 92-696
(extract); (1995) 183 CLR 273
[6]
At [26]-[28]
[7]
See for example Anstis & Anstis (2000) FLC 93-013
[8]
Chisholm, R., Family Courts Violence Review, 2009, p.109
[9]
At p. 139
[10]
At pp107-108
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