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Separated fathers could find it harder to secure 50-50 custody of their
children, and women should be more easily able to raise concerns about
violence, under proposed changes to the nation's custody laws.
The Family Court may also be asked to apply a new "triage" system to more
quickly assess urgent risks relating to violence, relocation, substance
abuse or mental-health issues.
Federal Attorney-General Robert McClelland said the Government was
considering the suggestions after he released three reports, which looked
at hot-button family-law issues such as shared parenting and violence.
Three years ago the Howard government introduced shared parenting rules,
which required the Family Court to set arrangements where both parents
could be involved in their children's lives after a divorce.
The court was also urged to consider 50-50 equal time for parents instead
of an automatic tendency to give one parent, usually the mother, full time
custody, with the father having access at alternative weekends and half the
school holidays.
But while backing shared parenting, yesterday's reviews said in some cases
parents, lawyers and judges had misunderstood the idea and wrongly believed
it meant equal custody.
It said with hindsight some of the changes "have proved confusing and
troublesome" and the resulting "tangle of legal technicality" had
distracted the focus from what would be best for the children.
"Many people seem to have wrongly assumed that the amendments created a
presumption that children should spend equal time with each parent (except
in cases of violence or abuse)," said the 275-page report by retired judge
Richard Chisholm.
The Government has also been urged to soften the law that deters parents,
usually women, from making allegations about violent behaviour by the other
parent.
At present, if the claim cannot be proven, the parent making the allegation
can have legal costs awarded against them.
While violence is not a factor in most cases before the court, the
Government has been told two-thirds of separated mothers and half of
separated fathers say the other parent had emotionally abused them.
One-quarter of mums and 16 per cent of dads said they had been physically
hurt and one-in-five had safety concerns about the other parent who still
had contact with the child.
Prof Chisholm suggested a triage system be created to all cases "to
identify any risk that requires urgent attention".
He said it could assess violence, problems stemming from mental illness or
serious substance abuse and proposed relocation by one parent.
The Government will also look at widening the definition of violence to
include threatening behaviour and create a national register of family
violence orders.
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