In 2006, the UN General Assembly mandated an in-depth study on all forms of violence against women. The study outlines due diligence obligations of states, asserting: ‘States have an obligation to protect women from violence, to hold perpetrators accountable, and to provide justice and remedies to victims.’
The legal system plays a vital role in a state’s response to the plight of women and children who experience violence and abuse. Australia’s Family Law Act 1975, via the operation of the Federal Magistrates’ Court and the Family Court, purports to protect women and children from their violent ex-partners.
Indeed, provisions relating to the management of allegations of violence and abuse were introduced in the Family Law (Reform) Act 1995 and are prominent throughout the Family Law Amendment (Shared Parental Responsibility) Act 2006. Yet, prominent as they are, the amendments do not provide comprehensive protection for all women and children.
If a woman is able to attest to a judge or registrar the violence she has experienced and the judge or the registrar considers that a reasonable person in the same circumstances as the woman and her children would fear or be apprehensive for their personal wellbeing or safety, our family law system will protect her. This woman will be exempted from the obligation to participate in compulsory dispute resolution with the person who perpetrated the violence against her.
The presumption of equal shared parental responsibility that requires her to collaborate with her ex-partner in making major long-term decisions about her children will not apply. As a consequence, the court will not be obliged to consider that it is in the best interests of her children that they spend equal time, or ‘substantial and significant time’ if reasonably practicable, with their violent ex-partner.
The court may even allow this woman to relocate to a new location, if this is what she wants, although it is uncertain how the provisions relevant to relocation will be interpreted. Her application for orders in relation to her children will be dealt with quickly and her pathway through the family law system will be smooth. If her allegations of violence are contested by her ex-partner, these will be dealt with in a less adversarial way than they would be in other civil legal systems.
Unfortunately, the reality is very different for many women and children who have experienced violence and abuse who are involved in the family law system.
The Family Law Act recognises the importance of ensuring that a child is given the opportunity for his or her parents to have ‘meaningful involvement in his or her life’ as well as ‘the need for a child to be protected from physical and psychological harm’. It is arguable that these are inherently in conflict. The tension would perhaps have been eliminated had the latter taken precedence over the former.
Nerida Mulvey is a family lawyer and Liberty volunteer.