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Alert- Changes to Parenting Laws

26 June 2012

On 7 June 2012, the Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 commenced. The Act brings in to force various amendments to the Family Law Act 1975 surrounding definitions of ‘family violence’ and ‘abuse’, the best interest considerations and increased notification requirements. These changes will have a profound impact on how the law applies to the determination of parenting arrangements.

Family Violence:

The definition of ‘family violence’ has been significantly widened to include a range of abusive and controlling behaviour that previously was not covered. As opposed to the previous definition which was based on an objective test (i.e. is someone’s alleged concern ‘reasonable’), the new definition is now wholly subjective and only requires the court to be satisfied that the person was actually fearful.

‘Family Violence’ is now defined under the Act as: “threatening or other behaviour by a person that coerces or controls a person or a member of the person’s family, or causes the person or family member to be fearful”. 

A lengthy but non-exhaustive list of examples of ‘family violence’ are provided in the amendments and include actions, such as:

  • repeated derogatory taunts
  • unreasonably denying financial autonomy
  • unreasonably withholding financial support needed to meet reasonable living expenses; and
  •  preventing a family member from making or keeping connections with their family or culture.

Abuse:

The definition of ‘abuse’ has also been expanded. Previously, ‘abuse’ was limited to sexual conduct. The definition now extends to “causing a child to suffer serious psychological harm or serious neglect.”

One of the ‘primary considerations’ when determining the ‘best interests’ of a child as set out in s60CC of the Act is the need to protect a child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

“Exposed”:

The concept of a child being ‘exposed’ to abuse, neglect or family violence had not previously been defined. The Act now provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Included in the amendments is a list of examples of how a child may be ‘exposed’ to family violence, which includes:

  • overhearing threats of death or personal injury by one family member to another family member;
  •  seeing or hearing an assault of one family member by another family member;
  • comforting or providing assistance to a member of the child’s family who has been assaulted by another family member; or
  • cleaning up a site after a member of the child’s family has intentionally damaged property belonging to another family member.

What Will it Mean?:

The changes may seem to be just ‘definitions’, but the consequential result is likely to be significant. Set out below are some of the areas of impact:

  • Mediation certificates

Prior to the filing of an Application for parenting orders, parties are required to attempt family dispute resolution with a registered family dispute resolution practitioner and obtain a certificate under section 60I of the Act (i.e. a mediation certificate). That certificate is then filed with the Initiating Application, to enable a Court Application to start.

There are a number of exemptions that apply to the filing of a s60I certificate, including circumstances where there is family violence, or a risk of family violence.

In light of the expanded definition of family violence, it is likely that the exemptions for filing a family dispute resolution certificate will increase. Arguably, this is against the policy considerations behind section 60I of the Act.

  • Parental responsibility

In every parenting case, the Court is required to decide whether or not the ‘presumption of equal shared parental responsibility’ applies. The Act provides that the presumption will not apply where a parent has engaged in ‘family violence’ or ‘abuse’.

By significantly widening the definitions of ‘family violence’ and ‘abuse’, it can only follow that the presumption of equal shared parental responsibility will apply less often.

The obvious flow on effect of this is that orders for children to spend ‘equal time’ with each parent, or ‘substantial and significant time’ with one parent, will be made less often.

  • Best Interests of the Children?

The amendments do not alter the ‘paramountcy principle’ i.e the’ best interests’ of the children, still remain the paramount consideration for the Court.

The Act sets out two ‘primary considerations’ for the Court when determining the best interests of a child. They are:

(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.

Previously, where an inconsistency arose between those two considerations the Act was silent on how the Court should deal with the matter. The amendments now provide a new section 60CC(2A) which provides that, in the event of an inconsistency, the consideration in subparagraph (b) is to be given greater weight. This raises the questions as to ‘how much is greater’ weight and this will ultimately be a matter for the Courts to deal with.

Wait and See

Clearly the focus of the new amendments is to protect children in separated families from harm, abuse or neglect and no doubt practitioners and litigants alike will agree that that is a necessary and relevant cause. The actual impact of the amendments is anticipated to be significant and is sure to provide some interesting Judgments in the future.

2019-04-23T14:45:28+10:00

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