Family Violence: New Amendments to the Family Law Act

Important amendments to the Family Law Act relating to family violence came into effect on 7 June 2012…

Family violence and abuse have always been very important issues in parenting cases in the Family Court and Federal Magistrates Court.

Important amendments to the Family Law Act 1975 (“the Act”), specifically relating to Family Violence, came into effect on 7 June 2012. This article is designed to offer readers an overview of the amendments related to Family Violence Law.

The Act states that in making a parenting order a court “must regard the best interests of the child as the paramount consideration”. For some time the Family Law Act Australia has stated that there are two primary considerations in determining what is in the child’s best interests (there are further considerations called “additional considerations”). The two primary considerations are:

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Following the amendments the Act now specifies that the court must give greater weight to the second of these considerations.

Some of the additional considerations have also been amended. For example, the subsection has been deleted that said that the court was to consider “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”. It would not be appropriate for a decision to be made against a parent who was not being “friendly” if their actions were based on the need to protect the child from harm, abuse, neglect or family violence.

The definitions of “abuse” and “family violence” have been expanded.

The following matters have been added to the definition of abuse:

1. “causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence”;
2. “serious neglect of the child”.

The definition of family violence is significantly expanded and now sets out examples of behaviour which may constitute family violence including:

1. Assault
2. Sexual assault
3. Stalking
4. Repeated derogatory taunts
5. Intentionally damaging or destroying property
6. Unreasonably denying the family member the financial autonomy that he/she would otherwise have had
7. Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his/her child, at a time when the family member is entirely or predominantly dependent on the person for financial support

Other changes to the Act include:

1. Parties to court cases are now required to notify the court of any child protection matters, including any notifications that have been made or investigations underway.
2. Previously if the court found that a party had made a false allegation or statement in the proceedings then the court was required to order that the party pay some or all of the costs of the other party.  That mandatory requirement has been removed.
3. A new subsection to provide that an object of the Act is to give effect to the United Nations Convention on the Rights of the Child.  It will be interesting to see what effect, if any, this has on parenting cases.

The changes to Family Violence Law apply to cases filed on or after 7 June 2012. The existing law applies to cases filed before then.

If you have any questions about the Family Law Act or an issue related to Family Violence, please do not hesitate to call our Family Law Team.