Amendments to the Family Law Act
The Commonwealth decided that amendments to the Family Law Act were necessary after research suggested that the co-operative parenting changes made in 2006 may have contributed to increasing rates of reports of family violence and child abuse around relationship breakdown. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 came into effect in July 2012. The main changes to the Family Law Act were as follows:
New definition of family violence
The definition of family violence in the Act was changed to remove the requirement that a person ‘reasonably’ fear for their safety, and to include controlling or coercive behaviour. The new definition, at section 4AB, provides that family violence is 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.
For clarity, a new sub-section 4AB(2) provides an open list of the types of circumstances that may be family violence under the Act.
New definition of child abuse
The definition of child abuse has been extended to include two new categories of behaviour. The new definition, at sub-section 4(1) provides that child abuse is:
- if the children is used as a sexual object and there are unequal power relations between the child and the perpetrator;
- action causing a child ‘serious psychological harm’ and expressly including subjection or exposure to family violence (new); and
- serious neglect (new).
Exposure to family violence is explained further by example at sub-sections 4AB(3) and (4).
Protection of a child must have top priority
The 2011 amendments to the Act confirm that, in the event of any conflict between two primary ‘best interests’ considerations, the ‘need to protect a child from harm’ should carry more weight than the ‘relationship with parents’ consideration.
Removal of the ‘friendly parent’ provision
The 2006 amendments to the Act had included a provision that a decision about the best interests of a child should include consideration about the extent to which each parent had tried to encourage a good relationship between the child and the other parent. This difficult – and apparently sometimes dangerous – measure was removed in the 2011 family violence amendments.
Firmer rules about dealing with family violence and child abuse at court
The 2011 amendments strengthen considerably the rules about how courts, parties to cases, and others must deal with any allegations about family violence or child abuse. These include new provisions requiring the court, in every child-related case, to expressly ask the parties about whether they have any ‘concerns’ about family violence or child abuse.