The Family Violence Act
The purpose of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Family Violence Act) is to protect children from harm. This legislation is part of the Governments agenda to improve the family law systems response to family violence and abuse.
The amendments will encourage better information about the existence or risk of family violence to be provided to the family courts. Where courts have better access to information to help them assess risk and make decisions about future parenting arrangements, parenting arrangements are expected to be safer for children. The amendments will also improve the family courts ability to identify and respond to cases of violence.
An Exposure Draft Bill was developed which was released for public consultation in November 2010.
The Family Violence Act was introduced to the Parliament on 24 March 2011 and passed on 24 November 2011. After being introduced into Parliament, the Family Violence Act was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry. The Committee tabled its report in the Senate on 22 August 2011 making eight recommendations, of which the Government accepted six.
The Act received the Royal Assent on 7 December 2011. The family violence measures (Schedule 1) of the Act commence on 7 June 2012.
Background to the Family Violence Act
The Family Violence Act is supported by a strong evidence base and responds to several research reports received by the Government into the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and how the family law system deals with family violence. The reports indicate that more could be done to protect children and other family members from family violence and child abuse within the family law system.
The key changes are:
- Prioritise the safety of children in parenting matters by giving greater weight to the protection from harm when determining what is in a childs best interests.
- Change the definition of family violence and abuse to reflect a contemporary understanding of what family violence and abuse is by clearly setting out what behaviour is unacceptable, including physical and emotional abuse and the exposure of children to family violence.
- Better target what a court can consider in relation to family violence orders as part of considering a child's best interests.
- Strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children.
- Ensure the courts have better access to evidence of family violence and abuse by improving reporting requirements.
- Make it easier for state and territory child protection authorities to participate in family law proceedings.
Secretary of the Shared Parenting Council, Wayne Butler saidI have attached a range of publications to this material that will assist readers in understanding what is in the legislation. I also recommend practitioners and Self Represented Litigants read the explanatory memorandum which details the Government intentions around the amendments.
One of the big ticket items is the new definition of family violence which is extensively changed.
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c ) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping
connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of
the family members family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the childs family towards another member of the childs family; or
(b) seeing or hearing an assault of a member of the childs family by another member of the childs family; or
(c ) comforting or providing assistance to a member of the childs family who has been assaulted by another member of the childs family; or
(d) cleaning up a site after a member of the childs family has intentionally damaged property of another member of the childs family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the childs
As the new definition of family violence is not yet in any State Laws we should not expect to see any additional Police interventions until the related state Acts are amended. What we may see however, are more ADVO applications before local courts, arising from significant change to subsection 60CC (k). This section was expanded after submission from the Family Law Council and other amendments by Professor Chisholm.
Previously the section said:
(k) any family violence order that applies to the child or a member of the childs family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The new section 60 CC (k) NOW says:
(k) if a family violence order applies, or has applied, to the child or a member of the childs family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for,the order;
(v) any other relevant matter;
If a family violence order applies, or HAS applied, to the child or a member of the child's family and this includes interim orders or old orders no longer applicable, then they may be brought to attention in the family courts and the courts may get bogged down in dealing with investigating these matters which will mean significant costs for litigants. This will involve obtaining transcripts of any local court matters , police statements and the like. This may also result in a lot more applications to get ADVO or other sorts of state intervention orders under way at local courts as a means to showing the other parent as unfit to parent, but concerns us that courts will get bogged down in allegations and spurious or unsupportable complaints.
This ties in with the replacement of 60CC (3) (c )
The old definition
(c ) the willingness and ability of each of the childs parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
and the new definition
60CC (3) (c )
(c ) the extent to which each of the childs parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the childs parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child;
I am of a somewhat optimistic view that 60 CC (3) (c ) will assist parents who have been refused contact where matters are fairly clear cut and there is no family violence.
Where a parent has tried to take the opportunity to participate in making decisions about long term issues such as schooling and medical issues, tried to spend time with and tried to communicate with the child and all of this has been refused by the other parent or substantially blocked then I would suggest that these things would now need to be specifically taken into much more detailed consideration with a view to making orders that would rectify such situation.