The Federal Government has proposed changes to the Family Law Act in the wake of the wide ranging 2006 amendments of the previous government.
Those of us "at the coalface" of family law disputes have seen dramatic changes in residential and childcare arrangements for separated families over the past ten to fifteen years.
The "standard" litigated outcome previously involved children living with their mothers and seeing fathers every second weekend and for two or three weeks of their school holidays. It is now so common as to represent something of a "new standard", for children to share their time between their parents on a much more equitable if not equal basis. Many large and small employers in both private and public sectors have moved with the times and made it possible for parents of both sexes to accommodate shared care through flexible work arrangements, the Courts took to the concept of "shared parental responsibility" as well as "equal shared care" with gusto and even parents with reservations about the advisability of such arrangements for their children decided they had best consider them.
For a large number of children these more equitable arrangements have improved their relationships with their fathers in particular and we would hope that they have benefited with improved self esteem and healthier psychological development more closely approximating that of children from intact families.
We are told, however, that others have in fact been exposed to unprecedented levels of conflict and even violence between their parents as a result of the greater need for these people to negotiate parenting issues and to attempt to cooperate in decision making regarding their children.
Despite the onus on judicial officers under the 2006 amendments to consider any claims of domestic and family violence before making parenting orders, advocates of the proposed amendments say there needs to be a broader definition which is expressed in terms of all activities which "coerce and control" and which cause children or parents to be fearful.
The proposed legislation is in line with research which distinguishes between various types of family and domestic violence. Coercive and Controlling violence (Kelly and Jackson, 2008; Stark, 2007) is seen as the most dangerous form for victims. This type of violence is most often used by males against females and involves intimidation through emotional, economic and physical abuse, isolation, use of children, asserting privilege and use of threats. When physical violence exists in this form of abuse, it is more severe and serious injury, death and/or sexual violence are more common than with other forms of violence.
The challenge for the lawmakers and the courts is to differentiate between the various forms of violence which too commonly occur in the context of intimate personal relationships between parents. Situational Couple Violence and Separation Instigated Violence, for instance, are less lethal, less likely to continue after separation, as likely to be instigated by females as males and more likely to be the result of acute frustration and tension around specific issues, including separation. Unlike Coercive Controlling Violence, they are thought to not be motivated by the overarching desire of one party to control the other and will most likely not involve escalating and potentially lethal tactics.(Kelly and Johnson, 2008)
If the proposed Family Law Act amendments are passed, are we likely to see an increase in false claims of family and domestic violence by parties looking to achieve ends such as relocation with children? Or will children and parents at the mercy of chronically coercive and controlling parties actually receive greater protection and if so, are errors in which innocent parents are denied time with their children just "collateral damage", necessary in order to protect those in real need?
No matter what legislation is passed, the question has to be asked, "Is there any better way of protecting children than considering every case on its merits?" It is argued here that The best interests of the child should remain the elusive driver for social scientist evaluators, independent children's lawyers, mediators and judicial officers alike as we all attempt to ensure that every child has the greatest chance possible of achieving their potential, whilst also remaining safe.
Denise Britton
Co-Principal Brisbane Mediations
References:
1.Kelly, J and Johnson, M (2008). Differentiation among different types of intimate partner violence. Family Court Review, vol 46, no 3, pp 476-499.
2.Stark, E (2007). Coercive control: The entrapment of women in personal life. New York: Oxford University Press.
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