In 2011, the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) introduced amendments to the Family Law Act which were targeted at improving the ability of the family law to protect children and vulnerable parties from family violence and abuse, whilst balancing the right of the child to have a meaningful relationship with both parents.
Expanded definition of Family Violence
The centrepiece of the amendments was the expansion of the definition of Family Violence. According to s4AB of the Family Law Act 1975 any “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful” now constitutes family violence. This includes stalking, derogatory taunts, intentionally damaging property, unreasonably depriving a family member of financial autonomy or family connections.
The amendment is a codification of the modern definition of family violence, and the corresponding change in community values. It is a message to the community about what is acceptable behaviour and what is not.
Introduction of s60CC(2A)
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (s60CA Family Law Act 1975 (Cth)). In determining what is in the best interests of the child, the court has two primary considerations (s60CC(2) Family Law Act 1975 (Cth)):
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The new s60CC(2A) mandates that the court give greater weight to the second primary consideration – the protection of the child from harm.
Former Attorney General, Nicola Roxon, in an interview on ABC radio on 6 June 2012, indicated that in a “perfect world” each child should have a meaningful relationship with each parent, however “in a less than perfect world we want to make sure that the safety of the child is the top consideration.”
The amendments only apply to applications made to the Courts on or after 7 June 2012. Parties to parenting proceedings that have been determined will not be entitled to have their matter reconsidered by the Court unless there has been a material change in their circumstances. The family violence amendments do not in themselves represent such a change that would allow the Court to revisit a case.
These amendments are a key strategy in the Australian Government’s agenda to provide a coherent and effective national response to the risk of family violence via the Family Law.