A REPORT on family law recommends a change to the legal definition of violence to encompass behaviour that is “economically abusive”, threatening or coercive.

The report, by the Family Law Council, says changes made to the Family Law Act (1975) by the Howard government narrowed the definition of violence and was “conservative in its drafting”.

The review was one of three reports released this week on family law, one of which warned that women and children were at a greater risk of violence, The Australian reports.

The Family Law Council report said the definition of violence in the act was in “some ways reminiscent of the common law definition of assault”.

“It is questionable whether it encompasses the debilitating psychological abuse by controlling conduct,” the report says.

It argues that the definition of family violence should be amended to encompass behaviour that is not only physically or sexually abusive, but also economically abusive, threatening, coercive, “or in any other way controls or dominates” the other party.

Read more…Change to the legal definition of violence – Wheretofindpedia

The father, deemed “principled” and with “much to offer his children”, has been effectively banned from seeing his daughters.

The case will spark renewed debate about family law and the issue of shared parenting.

The father, who we will name “Bill” because he cannot be identified for legal reasons, is described by a Family Court judge as no threat to his daughters, a successful parent who is “courteous” and “intelligent”.

The same judge found the mother, whom we will call “Jasmine” and who abandoned her first daughter at two and spurned the child’s subsequent attempts at reconciliation, had displayed “dreadful”, “cruel” and “malicious” behaviour.

Read more…Psychological and emotional abusive mother gets custody – Your Family Network

THE Family Court is placing infants who have not yet been weaned from the breast into shared care arrangements with their separated parents.

A study by academics at Flinders University has found that infants less than a year old are spending one week on a diet of cow’s milk, and one week nursing at the breast, so that parents can share their care, as recommended by the Howard government’s shared parenting law.

Others are spending up to three hours a day in a car, shuttling between homes.

The shared parenting laws, introduced in July 2006, are attracting complaints from a range of professionals at the coalface of family law.

The study on the shared care of infants after divorce was conducted by Linda Sweet, of the Flinders University School of Medicine, and Charmaine Power, an associate professor at the School of Nursing and Midwifery.

Their report said the shared parenting law placed “expectations on both parents to participate equally in care, regardless of the child’s age”.

The report said there was “ample evidence that breastfeeding is the best form of nutrition for infants” and the Australian government’s dietary guidelines espouse breastfeeding as the optimal food for children for the first six months of life.

“It would be expected that breastfeeding infants would not be ordered into substantial shared parenting arrangements,” the report said. “However, many infants regularly are.”

One mother, “Georgianna”, separated from her husband when their child was seven months old. The magistrate ordered week-about shared parenting, saying the boy could have his nutritional needs met by means “other than breastfeeding”.

“Georgianna’s milk supply became erratic as a result of these week-long absences,” the report said. At the time of interview, her son was receiving breast milk while with her, and cow’s milk while with his father.

“Trish” separated from her husband when their child was five months old. The court ordered shared parenting of seven days a fortnight, but no overnight stays, with dad. The distance between the homes meant the child spent three hours a day in a car seat.

The authors concluded that “national and international guidelines on optimal duration of breastfeeding” have less sway with judges than the benefits of time with fathers. “This in itself is not a bad thing, and all women in our study encouraged father contact,” they said.

Breastfeeding was at issue in a Family Court matter heard in Cairns last year, involving a couple who had been married for less than a year when they separated. Their daughter was five months old. The mother was committed to “attachment parenting” and demand feeding, and would not allow the child to stay overnight with her father.

The judge said the mother had “no time set for the child to be weaned” and allowed the father to see the child only when a mothercraft nurse was present (the father had an annual income of more than $280,000, plus a $350,000 annual bonus, so hired help was no problem).

The judge said the father “wanted to take the child out and have her stay overnight but could not “because the mother insisted that the child be breastfed”.

The judge said the shared parenting act made it necessary to “consider whether it would be in a child’s best interests” to spend such limited time with her father, and concluded that overnight visits should begin three months from the date of the hearing.

Breastfeeding mums forced to share care | The Australian

But Benjamin made the decision to move the children with amendments to the Family Law Act in mind. These amendments, colloquially known as the “shared parenting” provisions, were introduced by the Howard government in 2006. They say that children “have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never been married or have never lived together”.

Children also have a “right to spend time on a regular basis with, and communicate on a regular basis with, both their parents”.

Fathers fight back | The Australian

Chief Justice Bryant said data released for the first time last week shows that the number of shared parenting decisions have more than doubled, meaning that fathers are getting more access to their children.

However, Chief Justice Bryant said that was to be expected after changes to the Family Law Act introduced by the Howard government in 2006.

Under the changes, the court must apply the presumption that shared, equal parenting is in the best interests of children, and that a child has a right to a relationship with both parents.

Chief Justice Bryant said that did not mean children would be forced into contact with violent fathers, or that mothers would routinely lose contact with their children.

The Australian has this week reported on the case known as Irish and Michelle (2009) in which judge Robert Benjamin ordered two children, aged nine and seven, be removed from their mother’s home in Tasmania and sent to live with their father in Melbourne. The children had lived with their mother since the couple separated in 2005, and the older girl was starting to resist contact with her father.

The judge said she was at risk of psychological harm, if she was not permitted to have a relationship with her father.

Chief Justice Bryant yesterday directed The Australian to other recent cases, where fathers were denied significant contact with their children, saying the court was heading in no particular direction.

In one case, Handley and Dantes, decided on March 3, judge James Barry ordered that the mother, a French citizen, have sole parental responsibility for two girls, born in 1997 and 1999. The court heard that when the father had access to the girls, he had, among other things, dived fully clothed into a pond at Sea World, so he could swim with the dolphins.

The court heard he smoked marijuana in front of the girls. He had been banned by teachers from visiting their school.

Source: No bias to fathers, says Family Court | The Australian

Wayne Butler of the Shared Parenting Council, which was established in 2002 to push for legislative change that would largely benefit fathers, said the law was quite clear: “that children are entitled to a relationship with their dad, and it’s good to see the Family Court coming around to that”.

Mr Butler was responding to a report in The Australian yesterday in which Family Court judge Robert Benjamin removed two children, aged nine and seven, from their mother in Tasmania, with whom they had lived since the couple separated in 2005, and sent them to live with their father in Melbourne.

The mother had been the primary carer of the children since birth. The father left Tasmania for Melbourne in 2006. He had access to the children on holidays, but the “changeovers” had become fractious and his daughter was becoming estranged from him.

The judge said the mother had not encouraged her children to have a good relationship with their father.

Under changes to the Family Law Act (1975) introduced by the Howard government, the Family Court is required to apply the presumption that it is in the best interest of the child for the child’s parents to have shared and equal parenting responsibility, unless there is violence.

Solo Mums Australian convenor Elspeth McInnes said Justice Benjamin had not taken into account psychological damage to the children, who had lived solely with their mother since 2005.

“From the child development perspective, it seems extraordinary,” Dr McInnes said.

“It seems the judge is saying that mothers must make their children happy to see their fathers, or else they will be punished. I don’t think such punishment has any regard to the children’s wellbeing.”

Mr Butler said the changes to the act meant fathers were getting better outcomes than they had previously.

“You’re better off now with a judge than you were before, and you’re better off than you would be, if you just accept what your former partner gives you,” he said.

Patricia Merkin, who advocates on behalf of women in Family Court disputes, said the changes were “nothing less than a social engineering experiment to respond to the so-called bias against fathers”.

Barry Williams of the Lone Fathers Association said he dealt every week with fathers “attempting suicide … because they can’t see their children”.

Fathers praise access law | The Australian

TWO children who have been in the care of their mother since their parents separated in 2005 have been sent from Hobart to live with their father in Melbourne after the Family Court heard the mother encouraged them to have “negative” feelings about their dad.

The two children – a girl, aged nine, and a boy, aged seven – had been struggling with “change overs” between parents, saying things such as “I don’t want to go” and “I don’t have to go” when their father arrived in Tasmania from Melbourne to collect them for access visits.

The court found the mother did not discourage them from saying these things, and did not encourage a positive relationship between the children and their father.

The children told counsellors they were angry their father had left their mother, and lived with his new girlfriend in Melbourne.
Family Court judge Robert Benjamin said the children “clearly wanted” to stay with their mother, who had been their primary carer since birth, and acknowledged the “disruption to the children’s family unit and their stability if they were to move to Melbourne to live with their father”.

But Justice Benjamin said the “mother could see what was happening at change overs and did little abut it”.

“I have concerns that this will continue in the future,” he said.

“Sadly, this is a case where the children may be at unacceptable risk of psychological harm if they remain with the mother.”

Justice Benjamin said the girl, B, was becoming “emotionally estranged from her father” and was at risk of “psychological damage, if not psychiatric damage” if she was not allowed to have a relationship with her father.

The decision was made under new laws, introduced by the Howard government, that require the Family Court to adopt the presumption of “shared parenting” when dealing with children of divorce.

The Australian last week reported on new data that showed fathers had a much better chance of getting access to their children by going through the Family Court than they did by negotiating directly with their ex-wives.

A review of recent cases found fathers were given majority custody in 17 per cent of litigated cases, compared with just 8 per cent of cases settled directly with their ex-partners.

The Australian has also reported the case of NSW deputy fire chief Ken Thompson’s wife, who fled Australia with their

son Andrew, saying the Family Court had become biased towards fathers.

In the case of the brother and sister sent from Hobart to Melbourne, Justice Benjamin ordered the children be removed from their mother’s care, and to see her for school holidays and Mother’s Day. She is also entitled to a phone call “each Sunday between 6.30pm and 7.30pm”.

The court took evidence from a psychologist who helped facilitate a change over between the parents on June 27 last year.

When the time came for the children to get into the car with their father, the girl “started what can only be described as a mantra, or a chant”.

“She kept repeating: ‘I don’t want to go’ and ‘I don’t have to go’,” the psychologist told the court. “When her father greeted her, she (said), ‘I hate you’.

“The father showed me photographs of the last visit he had with the children, where they were cuddling, laughing and clearly having a very happy time.”

The father put the children in the car, but B “was trying to climb out the window” while her brother was “distressed and was hitting and kicking”.

B gave the psychologist a list that said: “I don’t want to go with my father because he tells lies, he hurts me, he left our family and he has got a girlfriend and I don’t like her.”

“These children are slowly indoctrinated into believing that their father is cruel and unkind and likely to hurt them, when this is not the case,” the psychologist said.

FATHERS who want custody of their children will have more success in the Family Court than by trying to strike a deal with their ex-partners.

In a break with conventional wisdom, fathers are twice as likely to get majority custody of their children if they take their fight to the court.

A Family Court review shows fathers were given majority custody in 17 per cent of litigated cases, but only in 8 per cent of those settled by consent, or early agreement, with the mothers.

The review of the shared parental responsibility reforms of 2006 shows that in 14 per cent of litigated cases, the father received between 30 and 45 per cent of custody. This figure fell to 11 per cent for early agreements.

The review shows that, if fathers are given less than 30 per cent custody, abuse and violence are the main reasons. And about one in 12 court cases end with an order that a child should spend time with their grandparents.

The reforms, passed by the Howard government, introduced a rebuttable presumption of “equal time” parenting and were aimed at promoting co-operation over conflict.

However, only 15 per cent of the litigated cases and 19 per cent of the consent agreements ended in orders for 50-50 care between the parents.

The biggest group was mothers who were awarded the majority of time with their children — they represented 60 per cent of the litigated cases and 68 per cent of consent cases.

The survey assessed 1448 of the 6992 litigated cases in 2007-08, and 2719 of 10,575 cases settled by consent or early agreement.

The biggest group of men (33per cent) were those awarded less than 30 per cent custody. Abuse and family violence was the main reason in 29 per cent of these matters, followed by entrenched conflict (15 per cent).

Of the 9 per cent of cases in which women were awarded less than 30 per cent custody, mental health was the dominant factor in 31 per cent of cases followed by distance and financial barriers (16per cent) and abuse and family violence (16 per cent).

Substance abuse was cited as a main reason for the Family Court making sub-30 per cent orders, with 4per cent of the fathers were and 7 per cent of mothers.

In 6 per cent of litigated cases, the father was ordered to spend no time with their child. The same order applied to only 1 per cent of women.

The information, which was posted on the Family Court’s website yesterday, came with a warning that the court considers only the most serious cases, with the remainder being handled by the Federal Magistrates Court.

When the Coalition passed the Family Law Amendment Act (Shared Parental Responsibility Act), it established 60 Family Relationship Centres around Australia as a first stop for couples in conflict.

“The aim was to encourage parents to consider, where appropriate, reaching an agreement regarding parenting arrangements in the first instance themselves rather than having the court as a first option,” the court said yesterday.

“Given this, it is to be expected that there might be a higher number of shared care or substantial sharing of time cases negotiated outside the courts.”

The figures show grandparents have been a beneficiary of the reforms, which specifically said their access rights were to be considered.

An estimated 560 cases — or 8per cent of the litigated cases — end with orders containing provision for time with grandparents. The figure fell to 2 per cent for consent agreements.

A spokeswoman for the Family Court said the statistics should not be compared with pre-2006 data because of the changes in legislation and the way the information was collected.

The court is working with the Australian Institute of Family Studies on cases that were decided before 2006 and can be compared with matters decided under the new legislation.

Source: Dads who fight win favour in custody cases | The Australian

And mothers are getting custody of the children in 68 per cent of cases where parents agree on the custody arrangements themselves.

The first statistics released by the Family Court on custody arrangements show that in 2007 and 2008 the court awarded shared custody in just 15 per cent of cases.

Parents who decided on their own custody arrangements agreed to 50/50 shared care in just 19 per cent of cases. And in only 17 per cent of cases did the Family Court order children spend more than 50 per cent of their time with their father.

Blog with Sue Dunlevy

The court ordered children spend more than 50 per cent of their time with their mothers in more than 60 per cent of cases.

Although mothers continue to be awarded the bulk of custody there has been significant change in favour of fathers. In 1997 just 2.6 per cent of divorced parents shared the care of their children.

Are you surprised that mothers win most custody cases? Tell us below

And Lone Fathers Association spokesman Barry Williams said in 2005 mothers were awarded custody 83 per cent of the time.

“There has been significant improvement,” he said.

But he said that even though more fathers were being awarded shared care, mothers all too often did not give them access to the children.

The statistics show that the main reason fathers were granted access to children for less than 30 per cent of time was abuse and family violence (in 29 per cent of cases).

The law was changed after a House of Representatives inquiry in 2003.

Attorney General Robert McClelland admitted more may need to be done to stop custodial parents denying access to the children.

He said the Australian Institute of Family Studies was conducting an evaluation of the way the new shared care rules are working.

It will particularly look at whether the desire to reduce child support obligations was behind the actions of parents seeking shared care.

Family Courts custody bias despite new laws | The Daily Telegraph

A JUDGE has slammed two sisters for “holding a gun” to the head of the court – and the heads of their parents – in a bizarre custody case.

The outburst highlights the plight of many divorced parents, who guide their children through the drudgery and stress of Monday to Friday – only to see them vanish for weekend good times with the other parent.

Justice Peter Murphy spoke after the teenagers took their case to the Family Court, in a bid to leave their mother to live with their wealthy father on the Gold Coast. The girls, aged 14 and 15, have been brought up almost solely by their mum since their parents split up 10 years ago.

But their dad, a successful businessman, has recently remarried, settled with his new wife on a Gold Coast property and the sisters want to join him, the court has been told.

It is an unusual case that is being closely watched by family law experts as the court has to weigh up the wishes of the children with what is in their best interests.

The sisters said it’s hard living with their mum who swears, is depressed, yells, treats them like children and doesn’t allow them the independence they would get with their dad. They even said they feel easier talking about personal issues including their periods with their father’s new wife than with their mother.

But Justice Murphy accused them of “holding a gun” to the head of the court and the heads of their parents after he heard that they had refused to go home – and proceeded to give them a good dose of common sense.

“It is very different, it seems to me, parenting children during holiday or weekend time than it is parenting children during week-to-week time when they are involved in their week-to-week activities including school,” he said.

“It seems clear that the father has spent very little, if any, day-to-day, week-to-week time with his young children and later adolescent children, attending to the sorts of duties and responsibilities that are highly likely to cause stress within any family household.”

However he acknowledged that the girls loved their dad whose business activities had been “clearly extensive and time consuming” for the past 10 years.

“I find it hardly surprising that they would want to spend time at his home with him and his new wife,” Justice Murphy said. “It offers a number of enticing and exciting possibilities for them and if there is tension in the mother’s household, it is hardly surprising that they would express the view that they have.”

While the case has yet to be heard in full, the judge said that in the interim the sisters had to go home to their mother while still being able to see their father.

Family law expert Michael Taussig QC said it was an unusual case and the judge had handled a complex decision very fairly.

“If a 14-year-old and a 15-year-old have strong and mature views then they are usually listened to by the court but as this is an interim hearing pending a full trial then the status quo has been maintained,” he said.

Divorce kids sack mum | The Daily Telegraph