Family law change 'puts kids at extra risk'
- Patricia Karvelas
- From: The Australian
- May 03, 2011 12:00AM
- 23 comments
THE Chief Justice of the Family Court, Diana Bryant, has warned the Gillard government that the changes to family law before parliament would reopen many cases and put children at extra risk by log-jamming the courts and adding stress to families.
The danger in the government's bill is that the laws can be applied to cases that had largely been heard, Chief Justice Bryant states in a submission to the Senate committee examining the legislation.
The retrospectivity meant any cases that may have been largely heard but not finally decided could be reopened with new evidence, and this could cause delay in the delivery of reasons for judgment.
"Cases involving actual violence or abuse or the risk of harm to children are precisely those cases that need to be brought on quickly, heard in a timely manner and finalised so that appropriate protective arrangements can be put in place," Chief Justice Bryant said. "It would be most unfortunate indeed if a consequence of the amendments, which are designed to improve responsiveness to family violence, was to place vulnerable children at risk of harm through delay . . .."
A spokesman for federal Attorney-General Robert McClelland said family violence measures would operate prospectively, but might affect matters before the courts that were not finally determined. "The government considers the need to protect children from harm should be the most important consideration," the spokesman said.
The bill came before parliament after the Gillard government watered down its original proposal, which deleted the shared parenting provision at the centre of the Howard government's 2006 family law reforms. But the Senate inquiry has exposed more potential flaws.
Under proposed new arrangements, the Family Court will still have to consider whether divorced parents have encouraged a close and continuing relationship between the child and their former partner when awarding custody.
In changes since the first draft of the bill were circulated last November, the definition now contains a general characterisation of harmful behaviour instead of an exhaustive listing.
Family law professor Patrick Parkinson, the architect of the Howard government's original family law changes, argues the new broad definition of violence is still flawed and could be abused.
In his submission he argues the opening words of the definition require that the behaviour complained of "coerces or controls" a family member. He says this is flawed because it does not say that the person accused of such behaviour needs to have the intention of coercing or controlling.
"It would certainly be problematic if someone could be held to have engaged in 'violent' behaviour without intending to do so, because his or her former partner felt coerced or controlled," Professor Parkinson argues.
He also objects to the requirement in the bill to consider family violence orders, arguing family violence is seen by many as a "weapon in the war between parents".
"There is now a very widespread view in the community that some family violence orders are sought for tactical or collateral reasons to do with family law disputes," he says
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