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Reply To: How to get a 50/50 child arrangement

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#243
Felix Spencher
Keymaster

Jake,

Around 2010 the Gillard government introduced some far-reaching changes to the family law act.

In broad terms, aside from placing greater emphasis upon child safety whilst weakening the previous Howard government’s shared parenting laws (that many people wrongly believed meant separated fathers were automatically entitled to equal custody of their children) the changes the Gillard government brought in redefined what domestic violence is.

The changes meant that the rights of children to have a relationship with both parents would not always be realized/prioritized. Particularly in cases where one or more parents were said to be abusive.

These changes were said to elevate the safety of children so that they were the top priority in family law custody disputes.

The way that it was said to work was whenever the court considered that the goal of equal shared parenting and/or the right of a child to have a relationship with both parents was in conflict with the safety needs of a child brought about by domestic abuse, the court was required to always give greater weight to child safety; which usually meant any goal of equal shared parenting and/or right of a child to have an equal relationship with both parents went out the window as soon as domestic abuse and/or family violence was alleged.

These changes to the family law act came about after raised concerns – from Labor MPs and particularly women – that suggested the Howard government’s laws had previously been too extreme and were hurting vulnerable children.

Personally, I don’t think the Howard government’s previous laws had been too extreme but that’s another story altogether.

In 2006 the Howard government (before Julia Gillard’s arrival) introduced changes that placed greater importance on shared parenting when couples separated/divorced.

It was these Howard government changes that I above refer to when I said that the previous Howard government’s shared parenting laws were mistaken by some people that wrongly believed the shared parenting laws meant that separated fathers were automatically entitled to equal custody of their children.

Here’s the kicker though.

Gillard’s changes to the family law act were said to be designed to ease the “evidentiary burden” on those people – including parents – that were seeking to establish within family law matters that a child faced a risk of violence and/or was exposed to domestic abuse.

And the way the Gillard government did this was to redefine family violence so that it took on many forms including the form of, harassment, physical assaults, emotional manipulation, threatening behavior, and financial abuse.

The net effect was that almost anything could be considered to be domestic abuse and/or family violence and therefore there were now a myriad of reasons why equal shared parenting could be considered to be in conflict with the child’s safety needs.

The changes the Gillard government swept in expanded the definition of family violence way beyond it being one person‘s actual/threatened conduct that allegedly caused a member of a person’s family to reasonably fear or be apprehensive about their well being or safety.

The new definition(s) included a long list of circumstances/matters, including behavior that intimidates, torments, or harasses a family member and this could be caused by repeated derogatory taunts or racial taunts, or intentionally causing death or injury to an animal or damaging property.

Family violence also included unreasonably controlling, deceiving/dominating a family member and it could be brought about by denying a family member financial autonomy or preventing a family member from making or keeping connections with family, friends or culture.

Family violence would also include threatening to commit suicide with the intention of tormenting or intimidating a family member.

Whilst, on the surface it all sounded nice/fair and as if the child’s best interests were paramount, another interpretation of the new changes the Gillard government brought in was that a spouse only had to “feel” scared/concerned, for the definition of family violence to be met. And once that definition is met then s/he is considered to be the aggrieved and then, of course, equal shared parenting goes out the window.

Furthermore, how could one parent possibly ever prove that the other parent didn’t “feel” scared?

Or, even if it was proven/accepted that she was genuinely scared/apprehensive, how could you ever prove they were not simply scared because of the uncertainty pertaining to the relationship breakdown.

Gillard’s changes to the family law act don’t seem to care about those conundrums; as the parent/claimant only has to “feel” apprehensive/scared about their well being or safety.

As such, in the rush to supposedly “ease the evidentiary burden” on those seeking to establish that a child faced the risk of violence and/or might be exposed to domestic abuse, the Gillard government introduced a wide set of new definitions for family violence and/or domestic abuse that, not only means almost anything can constitute family violence and/or domestic abuse – but also that some forms of alleged domestic abuse can’t be disproven.

Hope that helps.

Felix.