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03 October 2011

Have the politicians gone too far: An overview of the Family Law Legislation Amendment (Family Violence and other Measures) Bill 2011

Family lawyers and community groups have, for some time, expressed their dissatisfaction with the treatment of family violence and child abuse in the Family Law Act.

Family lawyers and community groups have, for some time, expressed their dissatisfaction with the treatment of family violence and child abuse in the Family Law Act.

As a result of growing public disapproval and recent social science research, the Commonwealth Government has introduced a bill aimed to rectify these issues – the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011.  The bill has passed through the House of Representatives and is presently being considered in the Senate.
A number of the proposed amendments to the Family Law Act are significant and will have wide-reaching implications, not all of which will necessarily be positive.

One of the key proposed changes is the widened definition of “family violence”.  Currently, the legal definition of family violence is limited to conduct which causes a person to be reasonably fearful of their safety or wellbeing.

The bill expands this definition to any behaviour which coerces or controls a person, or causes a person to be fearful.  Such behaviour may include:

  • repeated derogatory taunts;
  • intentionally causing death or injury to an animal; and
  • unreasonably denying the person the financial autonomy that they would otherwise have had.

To those familiar with the approach taken by the courts in family law matters, the above three examples would, ordinarily, never represent instances of family violence under the present interpretation of the Family Law Act.

Additionally, the bill has drastically widened the categories of behaviour which would expose a child to family violence.  Some of these include:

  • overhearing threats of death or personal injury by a member of the child’s family towards another family member;
  • cleaning up after a member of the child’s family has intentionally damaged property; and
  • being present when police or ambulance officers attend an incident involving an assault of a member of the child’s family.

Again, such examples are often outside the current scope of family violence within the Family Law Act.

By extending the definition of family violence, exposure to family violence and child abuse, one would expect that an increasing number of cases before the Family Law Courts will involve such allegations; not that they are rare at present.

Of course, that is a positive step if the alleged behaviour is detrimental to the child and by making an actual finding of family violence/abuse, or that there is an unacceptable risk to the child, the child’s exposure to the behaviour is ended.

However, in the alternative, there is now greater scope for parents to argue that the other’s behaviour constitutes family violence in an effort to obtain an adverse finding against the other parent.

One of the most important features of the bill is the proposal to place greater weight on violence when determining the child’s best interests.  Presently, pursuant to Section 60CC(2) of the Family Law Act, there are two primary considerations, being:

  • the benefit to the child of having a meaningful relationship with both parents; and
  • the need to protect the child from abuse, neglect or family violence.

Presently, neither of the above factors is weighted more heavily than the other; meaning that a court may find that family violence has occurred, but that it is in the child’s best interests for them to have a meaningful relationship with both parents regardless of that family violence.

The proposed addition of Section 60CC(2A) in the bill, provides that if there is an inconsistency between applying the two considerations, that greater weight is to be placed on the need to protect the child from abuse, neglect or family violence.

This is seen as a very welcome change.  With greater emphasis on protecting the child, this will hopefully minimise scenarios where the court has a difficult decision between weighing up the “pros and cons” of each consideration to reach a decision which is in the child’s best interests.

Two further important amendments contained in the bill are: the requirement for all parties to a proceeding to advise the court if the child, or another child of the child’s family, is under the care of a child welfare law, if a notification has been made to a state agency (e.g. the Department of Communities), or an investigation or assessment has been made; and that any person who is not a party to the proceedings may advise the court of the above matters.

Previously, there was no requirement for the parties to advise the court as to any reports made to, or investigations conducted by, the Department of Communities, nor were outside parties able to advise the court of same.  Presumably, it is hoped that these changes result in greater transparency and allow third parties who may be concerned about a child, but do not have standing to be a party to proceedings, to inform the court of matters which may ultimately affect the care arrangements for the child.

In summary, some profound changes to the current law are proposed in the Family Law Legislation Amendment (Family Violence and other Measures) Bill 2011.  Although a number of the draft amendments are clearly positive and will assist judicial officers in making decisions which protect children, by expanding the definition of key terms such as family violence, there is likely to be an increase in allegations which may not be borne out and may be to the detriment of a child’s relationship with a particular parent.

Matters involving children are often complicated and emotionally difficult.  We strongly recommend you contact a member of our Family Law Team if you require assistance negotiating your child’s arrangements with a former partner, or if you would simply like to speak to an experienced solicitor about your rights as a parent or grandparent.

For further information please contact Craig Turvey of Cooper Grace Ward’s Family Law team via +61 7 3231 2569 or [email protected].

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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