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24 March 2011
Family law revamp to keep shared care
by Patricia Karvelas
The Gillard government has backed away from plans to delete the shared parenting provision at the centre of the Howard government's 2006 family law reforms.
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.
A significant revamp of family law will still go ahead, with Attorney-General Robert McClelland set today to introduce legislation that redefines domestic violence and places greater weight on child safety, meeting a key criticism of the Howard reforms.
But some elements of the "friendly parent" provision that was set to be abolished will be kept, after lobbying that further consultation was needed on living arrangements, access and financial support.
In changes since the first draft of the bill was circulated last November, a threat to commit suicide has been removed as a specific definition of family violence. The definition now contains a general characterisation of harmful behaviour instead of an exhaustive listing, and provides examples of stalking, maiming pets and financial abuse.
The government said it had changed the definition because of concerns that references to suicide could heighten separation anxiety and mental health concerns for people experiencing family breakdown.
But the government insists that this kind of intentionally manipulative behaviour would still clearly fit within the description of "family violence". The proposed changes to the Family Law Act come after Labor MPs, particularly women, raised concerns that the Howard government laws had gone too far and were hurting vulnerable children.
The Howard reforms of 2006 placed greater emphasis on shared parenting when couples divorced.
Under Labor's amendments to the Family Law Act, the evidentiary burden on those seeking to show that a child faces a risk of violence has been eased after concerns that lawyers were advising clients against disclosing violence against them in case they were seen as an "unfriendly parent".
Mr McClelland said the Family Law Legislation Amendment Bill 2011 would create a safer and fairer family law system and prioritise the safety of children. "It will help people within the system to understand and recognise family violence and child abuse, and encourage them to act," he said.
He said the Family Violence Bill retained the substance of the shared parenting laws introduced in 2006 and continued to promote a child's right to a meaningful relationship with both parents, but emphasised that the best interests of the child must come first. "The government continues to support shared care but only where this is safe for the child," he said.
Retired family court judge Richard Chisholm said the bill was not a radical departure from the 2006 reforms.
"While there might be reasonable differences of opinion about some of the details, I believe that those who understand the way family law operates and who want to do the best thing for children will overwhelmingly agree that this bill will bring about a real improvement in the law," he said.
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