Category Archives: Legislation

Withholding a child is not violence

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The Federal Magistrate’s court recently held that withholding a child from the other parent does not constitute Family Violence under the recently amended definition introduced into the Family Law Act. The definition of Family Violence was broadened on 7 June 2012 to include preventing or unlawfully depriving a family member from making or keeping connections with their family, friends or culture. The father in this case filed a Notice of Child Abuse, Family Violence or Risk of Family Violence claiming that the mother withholding the child from the father fell under this new definition.

It was found, however, that the mother withholding the child from the father did not constitute family violence as, for it to fall under that definition, there needs to be an element of coercion or control, or causing the other person to become fearful. The court found that there was no evidence of this and that, in fact, there was evidence to suggest that there was good reason for the mother withholding the child from the father. There were previous orders in place that required the parents to go to counselling and for the father to have only supervised time, but a reason for this was not given.

The father was ordered to withdraw the notice so that other parents don’t get the same idea and flood the relevant child protection authorities with Notices that have no merit. The Federal Magistrate in this case also commented that there would be a discussion with the father’s solicitor for filing the Notice of Child Abuse, in this situation as it was inappropriate in the circumstances.

Practitioners take note.

Domestic and Family Violence Protection Act 2012 commences

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New definition of domestic violence 

The definition has been broadened to include economic, emotional and psychological abuse, physical or sexual abuse or other behaviour which controls or dominates another person.

Grounds for making an order

  1. An act of domestic violence has occurred;
  2. A domestic relationship exists;
  3. The court must be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence (this has replaced the likelihood of future violence requirement).

The court may still consider evidence that future acts may occur but do not have to be satisfied that future acts are likely.

Specific considerations for naming children

The court can consider whether naming a child is necessary or desirable to protect the child from being exposed to domestic violence.  A child will be exposed to violence if it sees or hears, or otherwise experiences the effects of domestic violence.  An unborn child may also be protected.

Temporary Protection Orders

To minimise any gaps in protection for victims – the new act allows that where a protection order is made and a temporary protection order (TPO)  has been served on the respondent, the TPO will remain in force until one of the following occurs-

  1. The respondent is served with the protection order;
  2. The order otherwise becomes enforceable, such as when a police officer tells the respondent about the existence of the order; or
  3. The protection order ends.

Police powers

The Act places a more proactive duty on police to actually investigate possible abuse. Police will be required to make a written note of why they did not take any action in certain situations.

New provisions allow police to issue an immediate notice to provide protection.  It allows for a 24 hour cool down provision directed at the respondent which will require the respondent to leave the premises and not approach the aggrieved during that period.

Police are being given the power to detain a person who appear to be at risk of injury or damage.  This can be for up to 8 hours if the person is intoxicated or otherwise unable to understand direction and four hours is they are suspected of being at danger of injury.

Increased penalties for breaches

The general maximum penalty is now two years imprisonment or 60 penalty units.

Sisters lose High Court Appeal for help

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The four sisters caught up in the middle of an international custody battle have been told by the High Court that they were not treated unfairly  and were not denied procedural fairness by not being allowed to have a active say in where they should live.   Generally, the Court will have regard to the child’s wishes depending on their age and degree of maturity and strength of their point of view.  In 2011 the children expressed an objection to being returned to Italy, but the court found this did not amount to a strong feeling beyond mere wishes and so the children did not have an Independent Children’s Lawyers appointed.  The children were ordered to return to Italy at that time.

Counsel for the four sisters argued that due to the age and maturity of the girls and the exceptional circumstances of the case, they should be independently represented and heard in the determination of the proceedings, even though they are not a party. According to counsel, the fact that the court previously found that the situation did not warrant an independent children’s lawyer, was a denial of procedural fairness.

The High Court found that the submissions failed, with detailed reasons to be given at a later date. If the High Court found that the submissions were valid, it could potentially mean that children would be heavily involved in custody disputes, perhaps even taking the witness stand if the dispute went to trial. Under the Family Law Act, a court can take into account a child’s views in a custody dispute if the circumstances warrant it.

With the application being dismissed by the High Court, the case will now return to the Full Court of the Family Court for an appeal of the original decision.

Surrogacy laws to change despite election promise

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The new government plans to change surrogacy laws, despite an election promise to the contrary.

The Queensland Attorney General, the Honourable Jarrod Bleijie said last week in Parliament:

“I can also advise the House tonight that the government will be changing the surrogacy laws in the future. We will be introducing amendments similar to those introduced by the honourable member for Southern Downs when he was the shadow minister. We will be repealing the provisions in the Surrogacy Act that deal with same-sex couples, de factos of less than two years and singles. That was a clear commitment given many years ago when that original debate took place. The government will proceed to amend the Surrogacy Act.

What we are also going to deal with is the other issue that that bill dealt with and that is parentage presumptions and parentage orders. Honourable members will recall at the time that the member for Southern Downs supported two lesbian women, who had a natural birth, both having parentage orders. I make it absolutely clear that going forward the government will be amending the provisions around altruistic surrogacy and the Surrogacy Act to repeal the provisions with respect to same-sex couples, de factos of less than two years and singles. That is the policy position we took years ago when we debated the Surrogacy Act.”

The Attorney General refers in his speech to the previous debate surrounding Surrogacy and the views held by Lawrence Sringborg back in 2009.

The current legislation states that regardless of a person’s relationship status, they can enter into a surrogacy arrangement.   An intended parent may be a person in a same sex relationship or as part of a de facto couple or a single person.

The amendments discussed above will completely exclude same sex couples and/or those in de facto relationships for less than two years and single people from entering into a surrogacy arrangement.

Premier Campbell Newman provided assurances just days before the March election that there would not be any change to the Surrogacy laws introduced by the previous Labor government. In his defence, Mr Bleijie said Mr Newman was not completely across the issue at the time of making that promise.

What do Queenslanders think?

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New Changes to the Family Law Act – Effective 7 June 2012

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Amendments to the Family Law Act aim to provide greater protection for children from family violence.

Background

The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was passed by the Senate on 24 November 2011 and comes into effect on 7 June 2012. The legislation alters some of the Howard government’s family law reforms made in 2006 which placed greater emphasis on shared parenting. These amendments aim to provide greater protection for children from family violence.

These changes have been prompted by reports exposing a range of problems with the existing legislation that potentially placed children at risk of family violence.

The objective of the changes is to improve the court’s decision-making by giving priority to a child’s safety when determining what is in their best interests and to make it easier for allegations of family violence and sexual abuse to be brought before the court.

Primary Considerations

The reform to the Family Law Act in 2006 provided for two primary concerns for the court to consider when making parenting orders. The first concern is the benefit to the child of having a meaningful relationship with both of their parents and secondly, the need to protect children from harm and abuse.

The new Act clarifies the second primary consideration. Where there is a conflict between these two primary considerations, the Act now requires the courts to give more priority to the protection of children from harm and abuse.

The Act has also changed the definition of domestic violence. As opposed to merely being afraid, the new definition of violence means behaviour that is physical violence, threatening or other behaviour that coerces or controls somebody or causes them to be afraid. It also includes socially and financially controlling behaviour and exposing a child to violence.

The changes go so far as to detail circumstances which may expose children to family violence, including hearing violent behavior, comforting family members following an assault, and cleaning up after property has been intentionally broken. Other additions include violence or threatened violence to family pets, unreasonable withholding of financial support and isolating the family member from their own family.

Abuse of Children

The amendments also place an emphasis on the abuse of children and the circumstances in which a child may be considered to have been exposed to family violence. This might include serious neglect and psychological harm.

Additional Considerations

There are a range of additional considerations when considering the best interests of children. The Act has repealed section 60CC(3)(c), (4) & (4A) which were known as the ‘friendly parent provisions’. The court will no longer be required to consider the ‘willingness and ability’ of a parent to facilitate a relationship with the other parent in determining the best interests of the child. There is however, an additional consideration under section 60CC(3)(c) and (ca) which now allows the court to consider the extent to which each parent has fulfilled his or her obligations to maintain the child, the extent to which he or she has taken the opportunity to participate in decision making in relation to the child as well spending time with and communicating with the child.

In an attempt to encourage parents to bring instances of family violence or abuse to the attention of the court, the court has now repealed section 117AB which allowed the courts to order costs against a party who has been found to have made a false allegation or statement.

Conclusion

Whilst there is always debate about the Family Law Act and regular demands to keep changing it, these reforms are a sensible approach to dealing with the serious issue of family violence and abuse when making parenting orders.

New legislation to make forced marriage a criminal offence

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New legislation in Australia will provide more protection for the victims of forced marriage

It may come as a surprise to many that forced marriages are occurring in Australia with an estimated 50 cases per year. The Australian government has reacted with plans to follow a number of other nations in introducing specific legislation to make the offence a crime.

Currently, there are avenues under Australian law to prosecute instigators of a forced marriage such as slavery and people trafficking offences under the Criminal Code, as well as offences relating to consent under the Marriage Act. However these laws do not fully address the practices involved in forced marriage. The difference that the legislation would make is to include circumstances where the victim gives consent but only as a result of the threat of violence, both physical and other.

Additionally, it would make it an offence for any individual who knew or were reckless to the fact that the victim had not given full and free consent to the marriage. This would likely include extended family members as well as religious officials performing the marriage. The legislation would also apply to forced marriages that occur within Australia, as well as those that are performed outside of Australia against an Australian citizen.

Many forced marriages occur outside of Australia against Australian citizens to ensure spousal visas for the international spouse once the Australian citizen returns home.

There is criticism of the legislation as forced marriages generally occur within families, and if the offence is of a criminal nature, many victims may be reluctant to come forward and speak out against family members as it may result in isolation of the victim from their community.

Some countries already have legislation in place which makes a forced marriage a criminal offence and even an attempt at a forced marriage, as is the case in Belgium. The UK has taken an alternative route by introducing a Forced Marriage Protection Order which is available under their Family Law Act. This is a civil remedy compared to a criminal offence which the Australian Government is planning to introduce. The UK have provided rationale for their approach in the hope that by using civil rather than criminal provisions, victims will be more likely to come forward as they don’t need to report their family members to the police.

It is not only women who are victims of forced marriages, and often men who are forced into a marriage become abusive towards the woman.

It has been suggested that the legislation also needs to include women who are ‘deceptively recruited’ into marriages that end up being servile marriages in which the woman becomes the slave of the man.

The heightened awareness of this issue in the media is likely to put a rush on the legislation which has been drafted as a bill but not yet introduced to parliament.

Family Court Makes Invalid Orders In De Facto Property Settlements

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An administrative error has resulted in the validity of thousands of property settlements between de facto couples being brought into question. In 2009, the States relinquished their power to settle property disputes to the Federal Government, meaning that de facto couples could have their property disputes dealt with by the Family and/or Federal Magistrates Court in the same manner that married couples do.

The problem arose from the amending legislation, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, never being proclaimed by the Governor-General, a process inherent in passing a new law.

Absence of the proclamation means that the amendment was invalid, that means the Family Court has been making orders for which it had no jurisdiction to do so, between 1 March 2009 and 11 February 2012.

The issue was discovered earlier this month and a proclamation by Governor-General Quentin Bryce enacted the legislation to commence from 11 February 2012. Any orders made by the Family Court from 11 February 2012 cannot be challenged on the basis of jurisdiction.

The Government is now working quickly to correct the error, and warns potential litigants against taking advantage of the error to challenge orders made during this time. Attorney-General Nicola Roxon says making such a challenge, would be “a foolish step for any litigant to take.”

The Government is said to be drafting retrospective legislation which it expects to table in parliament in March. This step will aim to ensure the validity of the likely thousands of orders made in the Family and Federal Magistrates Court during this time.

Any parties to Orders made during this time should seek legal advice, but the message is to keep acting as if your Orders are valid and binding. To act otherwise, would be risky.

Stronger laws to deal with international child abduction

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The Government is set to introduce new measures to strengthen Australia’s laws that deal with international child abduction. Below is an extract of the official joint media release issued by the Attorney General Hon. Robert McClelland MP and Minister for Families, Housing, Community Services and Indigenous Affairs Hon. Jenny Macklin MP, which explains the measures in further detail.

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Attorney-General Robert McClelland said the package of measures will include new criminal offences under the Family Law Act, extending the coverage of existing offences, allowing the family law courts to stop child support payments for parents who have abducted their child overseas and new information gathering powers for courts to locate children abducted from Australia.

“On average, two to three children are wrongfully removed from Australia or retained in another country every week by one of their parents,” said Mr McClelland.

“Being forced to go through the experience of having your child taken away to another country is unimaginable for any parent. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a strong mechanism for lawfully seeking the return of abducted children.

“We are proposing these measures to ensure our laws remain as effective as possible to maximise the prospect of the safe return of children who are abducted by a parent and taken overseas.

“We want to strengthen the laws to stop children being abducted in the first place, improve the mechanisms to locate a child overseas and remove barriers so the child can be returned to Australia.”

The proposed changes announced today are based on advice provided to the Government by the Family Law Council. The package includes:

  • Allowing the Family Law Courts to suspend child support payments for parents who abduct their children overseas to both Hague and non-Hague signatory countries, where they are satisfied it is in the best interests of the child;
  • New criminal offences under the Family Law Act to include the wrongful retention of a child overseas with a maximum penalty of three years imprisonment (currently it is only an offence to remove a child overseas);
  • Extending the coverage of the offences to include where a parent attends, or has been invited to attend, family dispute resolution, as well as if an application for   parenting orders has been filed with the family law courts;
  • Removing potential barriers for foreign courts to order the return of children to Australia by providing the Commonwealth Director of Public Prosecutions with the ability to give an undertaking that prosecution will not be pursued if a child is returned to Australia;
  • Greater powers for the Australian Family Law Courts to require individuals or entities to provide information to the Commonwealth Central Authority (CCA) to assist in locating children wrongfully removed from or retained outside Australia; and
  • Adding defences to the offences including fleeing from violence and protecting children from imminent harm.

“It’s very distressing that any child is wrongfully removed to or wrongfully retained in another country,” Mr McClelland said.

“The abduction of children can have a severe emotional, psychological and financial impact for children and left-behind parents.”

The Minister for Families, Housing, Community Services and Indigenous Affairs Jenny Macklin said under the proposed changes, courts will be able to suspend the payment of maintenance or child support by a parent that’s left behind.

“Child support should always be paid in the best interest of the child,” Ms Macklin said.

Generally this is regardless of parents’ access arrangements. But unlike domestic matters, when children are wrongfully removed from or retained outside Australia, the left behind parent is unable to effectively access the Australian legal system or have the Australian courts appropriately determine issues of care and protection for their children.

“We believe that the family law courts are best placed to make a decision about whether suspending child support is in the best interests of a child who has been wrongfully removed,” Ms Macklin said.

Consistent with the recommendations of the Family Law Council, a range of exceptions will apply to the discretion of the Courts to suspend child support:

  • Where the person applying to the Family Law Courts was not actually exercising rights of custody to the child at the time of the child’s removal from or retention outside Australia;
  • Where the person applying consented or subsequently acquiesced to the child being removed from or retained outside Australia.

The Court should also have regard to whether the taking parent was fleeing from violence, whether the child objects to returning to Australia, and the best interests of the child.

Draft legislation to implement this change in policy is expected to be ready by the end of this year to be introduced in Parliament in the first half of 2012.

The Government will also consider the recommendations of the Senate Committee on legal and Constitutional Affairs, which is inquiring into the issue of international child abduction.

Need advice?

If you or someone you know needs advice relating to international child abduction or any other family law matter, contact our specialist family law team on +61 7 3232 5700 or email family@whd.com.au