FAMILY LAW II: by George R. ChristensenNews Weekly
Creating another stolen generation?
, June 25, 2011
In addressing the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, I have come to understand how the citizens of Troy must have felt when they were greeted with the gift of a giant wooden horse, because this bill is not what it appears. It is a Trojan horse.
Just like the giant wooden horse full of Greek warriors, in Greek legend, and like an insidious computer virus full of malicious code, this Trojan bill is loaded with consequences that will undermine some of the most basic human rights for both parents and children, and particularly fathers.
Family law is a very difficult area to legislate. There is no escaping the fact that every family is different. To create legislation that caters for all circumstances is an unlikely quest. In most circumstances, there are no winners in family law. Family breakdowns are messy. They are hurtful. They are spiteful. They are emotional, irrational and painful.
It is in this emotionally charged atmosphere that mothers and fathers interact and children are bystanders, often witnessing behaviour by their parents at their very worst. Make no mistake: I do not object to the face-value intentions of some of the amendments in this bill. We cannot question the need to hold a child’s safety in the highest regard when it comes to custody arrangements. But we can question why these amendments are being made.
The current act, introduced by the Howard government in 2006, created the “twin pillars” of parenting provisions. These measures recognised two primary considerations for determining the best interests of the child. The twin pillars were: (a) the benefit to the child of having a meaningful relationship with both of his or her parents and (b) the need to protect the child from harm or from being exposed to abuse, neglect and/or violence — I repeat: the need to protect the child from harm.
Safety concerns for the child are already in the existing legislation. It is one of two primary considerations — considerations that, yes, are given equal weight. But, in addition, the current act specifically states in section 60CG that a court must ensure that a parenting order:
• is consistent with any family violence order; and
• does not expose a person to an unacceptable risk of family violence.
Protection is already provided for in the act.
What the bill does in reality is to retain child safety as a primary concern while relegating the child’s parental relationships to a minor concern. It sounds innocent enough, I suppose, but the Trojan horse here is a façade of enhancing child safety. The bill is dressed up as an attempt to protect children, which is a pointless exercise, because child safety is fully ensured in the current act.
What is inside this Trojan horse, the malicious code that will infect society, is an attempt to undermine equal access for both parents. This change would invite the court to ignore the requirement to consider the second pillar — the benefit to the child of having a meaningful relationship with both parents.
The Family Law Practitioners Association of Queensland is concerned about giving greater weight to the second of the primary considerations. In their submission to the Senate Legal and Constitutional Affairs Legislation Committee, they said: “Such a provision removes the court’s licence to assess in each individual case the degree of risk, its probability or, in the case of family violence, its context in terms of frequency, intensity and recency in the determination of the weight to be given to such risk or harm.”
This bill would mean that any inference of violence, proven or unproven, would have to be taken into consideration, however vexatious the claims may be. The potential danger of this change is apparent when viewed in conjunction with other changes proposed in this bill.
The broadened definition of “family violence” would mean that a wide range of everyday activities could potentially be construed as violence. The broader definition includes as violence such things as repeated derogatory taunts. Under the proposed definition, much of what happens right here in the parliament would be construed as violence!
Also included as violence is this little nugget: “preventing the family member from making or keeping connections with his or her family, friends, or culture”. Under this broad definition, a parent could not prevent a young teenager from spending 20 hours a day talking to friends on Facebook, for fear of being accused of family violence.
Under this definition, a parent would be too scared to ground a child as punishment for bad behaviour, for fear of “depriving a family member of his or her liberty”.
The sheer magnitude of this definition presents two problems. The most immediate problem is that living an ordinary life can too easily be construed as family violence. Adding fuel to the fire will be the actions of hurt, emotional, and spiteful former partners in stretching the truth.
Tripping over the family dog will suddenly become “intentionally injuring an animal”. Using a few poorly-chosen words a few times in an argument — which most families have experienced — will constitute family violence as “repeated derogatory taunts”. This definition would allow everyday actions to be seized, twisted, exaggerated and used as family violence weapons in the court.
What this change does is broaden the definition of family violence so much that the word “violence” loses all real meaning. That would be a tragedy, because it would also water down the perception of family violence.
Inside this Trojan horse is a malicious code that gives one parent an arsenal of weapons to be misused in court to deprive the other parent of their right to be a parent.
Earlier in this debate we heard the Minister for the Status of Women [the Hon. Kate Ellis] tell this parliament that no-one uses claims of family violence in such a way. I have some very bad news for the minister: it actually does happen. It happens every day; and if she is not aware of it happening then she is gravely out of touch with reality.
Here is the sort of thing that you can find in two minutes: the newspaper headline, “Ugly feud fought on Facebook”. The article tells about a Family Court hearing late last year. At the end it says:
“She had already strung the case out by falsely claiming her ex-husband had been sexually assaulting their children after one judgment went against her. Then she falsely claimed the father’s new wife had been assaulting them. ‘The mother has over the years attempted to manipulate the court system,’ Justice [James] Barry said.” (Daily Telegraph, Sydney, October 23, 2010).
There are no winners in family law. All parents in family law become losers one way or the other, but some of them are bigger losers than others.
The current act helped to bring some equality to family law. It created the two pillars, one of which recognised the benefits to the child of having a meaningful relationship with both parents.
These amendments are a backward step. They will strip fathers of their right to be fathers. These amendments will allow abuse of the system that will create another generation of stolen children.
George Christensen is federal Liberal National member for Dawson, Queensland. The above article is an edited extract from a speech he delivered in the House of Representatives on May 30.