The nation’s family law are about to undergo a significant change that will place a greater emphasis on what is in the child’s best interests rather than on the division of parental responsibilities.
The Family Law Act has been examined by a bipartisan committee in the Senate, and while it recommends some modifications, the committee is still in favor of the law being passed in its current form.
The elimination of the presumption of equal shared parental duty, which is frequently but incorrectly understood to be a presumption of equal shared parenting time, is the most important aspect of the legislation that is being proposed.
The committee came to the conclusion that it was essential to take into account “a history of family violence, abuse, and neglect as a general consideration in determining what is in the child’s best interests,” and that the language and concepts that were used to “better recognize & protect right of Aboriginal & Torres Strait Islander children to enjoy their culture” should be included.
In addition, it was suggested that ideas of kinship and child-rearing practices be added, with the caveat that Aboriginal and Torres Strait Islander people should not be subject to more stringent disclosure duties as a result of such an expansion.
There should also be more attention given to the child’s perspective, notably when a youngster objects to a return order in accordance with The Hague convention on the abduction of children. The convention was established to prevent non-custodial parents from kidnapping their children, but it has been abused in a way that makes it difficult for victims of domestic violence to escape with their children.
The committee also suggested that protections be put in place to prevent alleged offenders from abusing subpoenas in order to acquire access to the personal information of their alleged victims. This information might include counseling notes, medical data, and home addresses.
Misuse of subpoenas is one aspect of the larger issue known as abuse of the legal system, which occurs when alleged domestic violence offenders representing themselves in family court drag out litigation, introduce vexatious applications, and force the victim-survivor to repeatedly be in the same venue as their abuser. The misuse of subpoenas is one aspect of this larger problem.
To “protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant,” the new legislation that is being proposed contains “harmful proceedings orders.” These orders can stop a party from initiating proceedings and are intended to “protect the respondent and/or children who are the subject of proceedings.”
Even while respondents and litigants may be forced to appear in court without a lawyer due to financial concerns, research suggests that alleged abusers use this circumstance to exert control and intimidation over their victims. Concerns have been raised that activists for men’s rights may be advising unrepresented parties on how to take advantage of court procedures.
Others, including Monash University and the independent member of parliament Zoe Daniel, are joining the push for legislation that would go even farther and identify this type of abuse as family violence inside the legal system.
At the University of Technology in Sydney, Associate Professor Jane Wangmann is recognized as a leading authority on the legal remedies to domestic and familial violence.
She claimed that exes make multiple “unmeritorious” applications with the intention of draining a victim-survivor’s financial resources intentionally.
“It’s to wear them down, exhaust their funds, or just be at a venue at which [former partners] can see them – often, they’re not allowed to have contact any more,” she added. “It’s a combination of all three.”
According to her, abuse of the legal system can take place in more than one jurisdiction, causing persons to be held up in both family and state courts. In addition, perpetrators may cause needless adjournments by not appearing in court or may inundate attorneys with an excessive amount of communication. Abusers can further “make her life difficult” by filing false reports with child protection, with landlords, or with social security.
Terese Edwards, the chief executive officer of Single Mother Families Australia, stated that the exploitation of the legal system extended to child support payments. She pointed out that there are internet forums that advise males on how to minimize their payments.
Wangmann discovered that there were large numbers of self-represented parties in instances involving allegations of family violence while conducting research for a report that would be published in 2020 on self-represented litigants in family law procedures. The report will be written for the Australian National Research Organisation for Women’s Safety (Anrows). She discovered that some parties may not be able to afford a lawyer and may not have access to legal aid; nevertheless, some parties have other reasons.
According to the findings of the investigation, “Women and professionals… reported alleged perpetrators self-representing in order to harass the woman, or because of arrogance, or because they rejected legal advice.”