The Dawn Chorus

Fresh Australian Feminism

McClelland Talks, Says Mostly Good Things

Posted by caitlinate on July 24, 2009

Attorney-General Robert McClelland today announced a series of (potential) changes to the family law system in Australia. These changes are aimed at tackling domestic violence and child abuse in Australia and altering the way the courts operate in terms of these issues. In the introduction to his speech he stated:

“I believe that at the moment there are still too many families that slip through the safety net. Complex problems rarely have simple solutions and they can’t be overcome by taking action in isolation. To address violence we need to identify holes in the system, and collaborate to tighten the safety net. It’s not enough to look for holes in the law, or in court processes or in the delivery of services, or any of these things on their own. Our safety net must provide the tightest protection possible for families negotiating the family law system.”

This is obviously in large part politician speak (he says ‘safety net’ three different times, somewhat unnecessarily) but I feel that his heart is in the right place and that revamping or strengthening the way the system works is a good thing. I do, however, have some reservations, in particular that the focus of this speech and these changes seems to be to the system after the fact – so after when the abuse occus rather than working on prevention in the first place.

The four main announcements he made are outlined in bold.

• A training package for family law system professionals and the development of minimum screening guidelines;

Training and information for ‘professionals’ within the system is a really amazing thing and I’m glad they are prioritising this. A lot of the problems that victims and survivors of violence have with legal system professionals (including the police) is that they are untrained and unaware of the impacts and complications involved in violence and abuse. This often results in behaviour/advice that can be further traumatising or unhelpful.

I am a little concerned that these training packages will be of a bureaucratic nature. The best way to inform people about the requirements and experiences of abuse survivors is to have survivors communicate about what they need or needed and the best ways to proceed. Nonetheless, it does seem that they are taking cues from the National Council to Reduce Violence Against Women and their Children’s April report ‘Time for Action’ which came from a lot of community and survivor consultation.

The ‘minimum screening guidelines’ mentioned aren’t really elaborated on but I think McClelland’s talking about mandatory reporting levels and altering what he terms ‘inefficient jurisdictional boundaries’

• A pilot of legally assisted mediation for families experiencing violence;

I think this is an interesting one. The Howard government pretty much banished lawyers from some aspects of family law disputes, preferring separating couples to use counselors for mediation. McClelland has commissioned this pilot project to instead fund lawyers for mediation in cases where violence is alleged. He states:

“In assisting families to exercise choice in resolving their separation disputes, I am funding a pilot program to provide legal representation in mediation sessions to families who have experienced violence or are at risk of it.”

This could be positive. I don’t think that someone should have no legal support or recourse when the partner they are separating from has been violent towards them or their children. However allowing lawyers to the table could bring about two negative possibilities. One that bullying abusive lawyers will be in the room and it will be about forcing one party into submission. Secondly that if one partner is in a more stable financial position they will be able to hire a more experienced lawyer who can work for more favourable outcomes for their client – regardless of if they’ve been violent.

• A review of the family court practice and procedure, lead by Professor Richard Chisholm, a former Family Court judge;

This review seems to be about expanding the current model for dealing with children who have been abused or in abusive situations. Currently in use is the Magellan case management model – introduced in 1998. It brings together the family courts, police and child protection agencies to ensure the Court has all the information it needs to make decisions “in the best interest of the child” but is incredibly flawed. The current laws require the Family Court to presume the “best interests of a child” are served by a meaningful relationship with both parents after divorce, regardless of if one parent has been abusive. It forces parents into ongoing relationships with violent ex-partners and requires them to regularly hand over their children to the care of said ex-partner.

Chisholm is going to be consulting experts and examining whether the practices and procedures in the family courts encourage appropriate disclosures of family violence, and whether appropriate support is provided within the family court system for families who have experienced or are at risk of violence.

• An enquiry by the Australian Law Reform Commission (ALRC) to identify gaps in the law and reinforce the previously mentioned ‘safety net’.

This inquiry will look at two important issues raised in the National Council’s report:

1. It will examine the interaction of State and Territory laws relating to family violence and child protection with Commonwealth family laws and criminal laws to determine whether changes are required to better protect women and children; and

2. It will examine the impact of the inconsistent interpretation or application of laws in cases of sexual assault occurring in the context of family violence, on the victims of violence.

I can do nothing but applaud the fact that this enquiry is happening and cross my fingers that the outcomes will be positive for victims and survivors of violence, abuse and assault.

Overall I find the announcements to be on the positive side, even if only because action is being taken and family violence is being taken seriously. Some of the measures that will be introduced do raise questions but I don’t feel that any are to be damned but rather watched closely to see what the results are. I do wish that this was all less about enquiries and reviews and about real and substantial action being taken. However if the ‘reviews’ and ‘enquiries’ involve talking to communities, affected groups and survivors then I think extended evaluation is probably a better thing that rushed but ineffective action.

Finally, one other thing of interest McClelland mentioned is the following:

“Measures to address family violence will assist the Government’s effort to halve homelessness by 2020, as we now know that family violence is the principle cause of homelessness among young women with children.”

This statement displays, to me, an understanding of the wide and varied effect that domestic violence has on families, individuals, women and children, something of a relief after the draconian attitude of the previous government.


3 Responses to “McClelland Talks, Says Mostly Good Things”

  1. Anonymous said

    Thanks for blogging about this.

    I am currently in a relationship that could be described as abusive. One of the main things that is preventing me from leaving is the current state of the family law in Australia.

    Under the currentl laws, if I left the relationship, I could potentially have my kids for only half the time (under the presumption of equally shared care). This is a big deal for me, because I gave up a bright career to be with them, and I have never spent a night away from them, ever. And they are still only little. Also, my kids would, most likely, have to spend time alone with their father who has a tendency towards excessiveness in discipline. Without me there, I have no idea what he would do to them if he lost his temper.

    Seriously, if they changed these laws, I could leave.

    • Niki Norris said

      My concerns lie with the 2006 Relocation Amendments, denying a mother and small child vital family care, particularly when the father had moved over 3,000klms away for two or three years, returning to visit his son at his convenience. He was able to threaten her with abductions charges should she attempt to travel interstate for family care for her son and herself. I believe the enquiry should be stretched to protect victims of the Relocation issues.

      Consider that when a mother is forced, under the current FLA, to live thousands of kilometres away from her family, and the father is still able to live close to their’s, the health of the mother, usually the primary carer, is denied equality of protection, this, in turn, denying the child of his/her right to expect authorities to equally protect the health of both his parents. His mother is living an “enforced life”. Criminals in gaol living an enforced life, can expect protection for their health in the form of doctors and medical monitoring after illness or surgery. It could be looked at as violation by the Commonwealth of a person’s natural rights and raises questions as to who is to be held accountable for the wellbeing of a mother, ordered by law to remain living in isolation “in detention” without adequate or equal care for their health, ever having been considered. Who is responsible if the mother’s health suffers seriously through the denial of equal protection and the equal privilege of family care? Who is to accept responsibility if the child loses his/her mother through denial of family care when needed? When ‘flu symptoms persist shouldn’t we all have the right to a family member monitoring these symptoms which may prove to be a fatal case of Swine ‘Flu. Those who made the choice to live in isolated areas from family usually accept that they are responsible for their own welfare, but the welfare of parents, forced under the current FLA amendments to live in isolated areas, mut surely be the responsiblity of the lawmakers and the Commonwealth Government.

      “Unrestricted freedom of movement” are the words of the AHRC. To tell a mother that she can have freedom of movement, only if she deserts her child, must surely be looked at as, not only as placing “a restriction” on her movements, but even more seriously, as a lawful suggestion that a mother should seriously contemplate instigating or causing serious harm to the mental and possibly physical wellbeing of her child. Good mothers, like “Anomymous” (above) will simply remain with their child, regardless of their own suffering and regardless of this lawful and ludicrous, suggestion. Their health will usually suffer and because the options are not worth considering, they will continue to suffer, to the detriment of the child.

      Surely, when a child is placed in a situation when their mother’s health is denied care and protection equal to that which the father can receive, then the laws must be interpreted as not being “in the best interests of the child.”

      Denying one parent family care and support, whilst allowing the other parent to enjoy this privilege, will, unquestionably and unfairly, equip the parent with family to be a better parent. Pre-surgery family assistance and post-operative care, is essential to ensure the patient faces less stress prior to surgery and that proper time and care for successful healing is accessible to them also after surgery. To exert their body after surgery places the healing process at risk and the health of that parent in jeopardy, this in turn, endangering a child. Forced to perform heavy lifting after surgery, without the privilege of being able to phone a family member such as a brother or father for help, shows bias and discrimination toward the parent without family and insinuates that their health is not regarded as being of equal importance as the father’s in these cases.

      This is what has recently happened in our case. After two similar operations on both hands and wrists for carpal tunnel syndrome, my daughter’s surgery did not heal successfully, because she is forced to live approximately 4,000 klms away from her family. Twelve months on she still suffers pain, caused through over exertion after surgery. She had no choice but to use her wrists and hands – there was no one else to call on for help. The father had a small knee operation around the same month. He phoned his mother and she looked after him and he was still able to have his access visit because she fed, bathed his son, packed lunch bags, took him to kindy and picked him up. The father was able to allow his surgery to heal properly and the success of his operation was ensured.

      If anyone else has had similar experiences I would like to hear from you as I am trying to get support for a submission.


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