The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was passed by the Senate on 24 November 2011 and comes into effect on 7 June 2012. The legislation alters some of the Howard government’s family law reforms made in 2006 which placed greater emphasis on shared parenting. These amendments aim to provide greater protection for children from family violence.
These changes have been prompted by reports exposing a range of problems with the existing legislation that potentially placed children at risk of family violence.
The objective of the changes is to improve the court’s decision-making by giving priority to a child’s safety when determining what is in their best interests and to make it easier for allegations of family violence and sexual abuse to be brought before the court.
The reform to the Family Law Act in 2006 provided for two primary concerns for the court to consider when making parenting orders. The first concern is the benefit to the child of having a meaningful relationship with both of their parents and secondly, the need to protect children from harm and abuse.
The new Act clarifies the second primary consideration. Where there is a conflict between these two primary considerations, the Act now requires the courts to give more priority to the protection of children from harm and abuse.
The Act has also changed the definition of domestic violence. As opposed to merely being afraid, the new definition of violence means behaviour that is physical violence, threatening or other behaviour that coerces or controls somebody or causes them to be afraid. It also includes socially and financially controlling behaviour and exposing a child to violence.
The changes go so far as to detail circumstances which may expose children to family violence, including hearing violent behavior, comforting family members following an assault, and cleaning up after property has been intentionally broken. Other additions include violence or threatened violence to family pets, unreasonable withholding of financial support and isolating the family member from their own family.
Abuse of Children
The amendments also place an emphasis on the abuse of children and the circumstances in which a child may be considered to have been exposed to family violence. This might include serious neglect and psychological harm.
There are a range of additional considerations when considering the best interests of children. The Act has repealed section 60CC(3)(c), (4) & (4A) which were known as the ‘friendly parent provisions’. The court will no longer be required to consider the ‘willingness and ability’ of a parent to facilitate a relationship with the other parent in determining the best interests of the child. There is however, an additional consideration under section 60CC(3)(c) and (ca) which now allows the court to consider the extent to which each parent has fulfilled his or her obligations to maintain the child, the extent to which he or she has taken the opportunity to participate in decision making in relation to the child as well spending time with and communicating with the child.
In an attempt to encourage parents to bring instances of family violence or abuse to the attention of the court, the court has now repealed section 117AB which allowed the courts to order costs against a party who has been found to have made a false allegation or statement.
Whilst there is always debate about the Family Law Act and regular demands to keep changing it, these reforms are a sensible approach to dealing with the serious issue of family violence and abuse when making parenting orders.