Protecting people from violence is a significant role of Australian laws. The protection of women and children from domestic violence is a topic often covered in the media. Sexual assault is another. A recent report is hoped to be a step forward in addressing inconsistencies or areas for improvement in our State and Federal laws. Many Family laws intersect or cross over with other laws which can create confusion.

The joint Australian Law Reform and New South Wales Law Reform Commissions delivered their final report to the Attorney General on 10 October 2010. The report was released to the public in November 2010.

This 1,500 page, 2 volume report sought to comprehensively review the various Federal and State Laws. It's objective was reducing violence in the community and particularly in relation to women and children.  

This process is one of the ways in which changes to laws are made in Australia.  This comprehensive review of the existing laws identifies weaknesses and areas of potential improvement and then made 186 recommendations for improvement.

Areas include confidentiality, rape, family dispute resolution, bail, trial process, homicide, breach of protection orders. For the full text of the report click here

Why can't children use the same lawyer as their parents?

Unfortunately parents often take adversarial and diametrically opposed positions in respect of what is in the “best interests” of children in Family Law Parenting Cases. As a result children are required to have separate legal representation in the Courts.

Accordingly it is practice for the Court to appoint an “ICL” i.e an Independent Children’s Lawyer to represent the Children’s best interests in any contested hearing before the Court.

The Independent Children’s Lawyer operates as a “Separate Representative” to ensure that submissions are made and evidence brought before the Court in order that a determination may be made in accordance with law and the principles of the Family Law Act.  The overriding responsibility of the Separate Representative is to ensure evidence is presented and submissions made as to what is in the best interests of the children.

Guidelines for the role of the Separate Representative or Independent Children’s Lawyer were set out in a Full Court Family Court decision of P and P in 1995.  They are as follows:

"The separate representative ought:-
1. Act in an independent and unfettered way in the best interests of the child.

2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the  instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court. 

4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.

5. Test by cross-examination where appropriate the evidence of the  parties and their witnesses.

6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal  view or opinion of the case.

7. Minimise the trauma to the child associated with the proceedings.

8. Facilitate an agreed resolution to the proceedings."

Comment from Mark Streeter - Sydney Family Law Lawyer

The Independent Children’s Lawyer is not “bound” to take an adversarial or contradictory role and may either support one parent’s application over the other or alternatively submit a completely new third version of proposed orders in respect of children.

The Independent Children’s Lawyer is an incredibly powerful and influential role in parenting matters in the Family Courts. It is an important safeguard to ensure a “neutral” party is presenting as objectively and as “disinterested” submissions in the interests of the child (or children) as is possible in the circumstances.

When you separate who makes the decisions about your children?

As a parent you have responsibility for your child. When couples divorce or separate deciding who looks after the child is determined by what is in their best interest. Equal Shared Parental Responsibility is one arrangement in what is usually referred to as child custody..

Parental responsibility in relation to a child is defined by s61B of the Family Law Act 1975 as “all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.”

Parents automatically have parental responsibility for their children from birth. Unless there is a parenting dispute resulting in Orders of the Court, each parent will continue to have equal shared parental responsibility for the child following separation or divorce.

Parental responsibility and making decisions with regard to the day to day conduct of the child’s life are often confused. It is usual for the parent who is caring for that child, at any given time, to be responsible for decisions with regard to the day to day welfare of that child. An order for shared parental responsibility, or child custody, does not mean that the other parent must be consulted on every minor issue in a child’s life.

Parental responsibility is a responsibility to make decisions in relation to the long term issues in a child’s life such as where the child lives, what medical treatment they will receive, educational issues such as where they will attend school, the nature and degree of religious upbringing, the child’s name, passports, and the child’s social conduct and interaction.

Significant changes were brought about with the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 in July 2006(“The Amendment Act”). The Amendment Act saw a shift in the focus of the Court from the rights of parents; toward the rights of children and the responsibility of parents.

The Court must now apply a “rebuttable presumption” contained in s61D of the Family Law Act that it is in the best interests of children and parents to have a shared parental responsibility. This cannot be confused with the additional consideration of equal time. The presumption for equal shared parental responsibility is rebutted in circumstances whether there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of that child) has engaged in:
a) abuse of that child; or
b) family violence.

The Court will not make an order for equal share parental responsibility if they exercise their discretion that making that order would be contrary to the child’s best interest.

Orders relating to parental responsibility may be made on an interim basis in matters of urgency but the Court must disregard such an interim order when considering a final order to avoid prejudice against the other parent.

Social scientific studies have demonstrated that in situations where there is a high level of conflict between the parents, where consultation on significant issues relating to the child would place the other party or the child at risk of harm, it may be considered appropriate to award sole parental responsibility of the child to one parent.