Attachment Theory and the Family Violence Reforms

Even if the court decides that it is not in the interests of the child to make an order forequal time or for significant or substantial time, there is no guidance as to what ordermight then be made in circumstances where an allegation of family violence has beenfound to be proven to the requisite legal standard.Having said that, this was the case before the amendments and the Court was still able tofashion orders in these circumstances, taking into account all of the relevant factors suchas the kind of violence, the impact of that violence, the extent of the violence, theparenting arrangements that had been in place, including by consent, and the age andviews of the children.Further, as many of my judicial brethren have often pointed out, one very relevant factorin how the violence is addressed is the orders sought by each party. For example, if thedispute is about whether the child should spend two days rather than three days with theviolent parent, it is unlikely that the violence will have much, if any, bearing on theresult.I agree with the Chief Justice’s view expressed to me on a number of occasions that itshould be possible to insert in the Act, perhaps in s 60CC(2), some of the considerationsthat the court would take into account in making an order for time spent notwithstandingthat violence had been established. This would make it clear to the parties litigating thesematters that not only might the court be considering making such an order, but the criteriaupon which that order might be based.The point is that given the continuing absence of any guidance in the legislation as tohow the court is to proceed, the expectation of parents created by the focus on theexpanded definitions may well be defeated.39