Recent changes to the definition of family violence under the Family Law Act have significantly expanded what is now considered to be family violence. It now includes things such as repeated derogatory remarks, withholding financial support and injuring a pet.
The Attorney General, Nicola Roxon cited the changes as providing “better protection for children who are exposed to family violence.” She said: “These changes place children and their safety front and centre in family law matters.”
The suggestion that children and their safety has not been “front and centre” is a little surprising, with the best interests of the children having always been at the core of any parenting dispute or decision.
The changes to the Family Law Act will:
- Prioritise the safety of children in parenting matters by giving greater weight to the protection from harm when determining what is in a child’s 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 requirement
- Make it easier for state and territory child protection authorities to participate in family law proceedings.
- Disincentives to disclose family violence to the courts have been removed
- Ensure appropriate action is taken to prioritise the safety of children in family law disputes
The changes do not affect the shared parenting arrangements and presumptions set out in the Act in relation to care and time with children. They do promote the best interests of the child and ensure that the safety of children is protected.
Section 4AB of the Family Law Act now provides examples of behaviour that may constitute family violence, including
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- 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
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Further, the Act now states that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Examples of situations that may constitute a child being exposed to family violence include the child:
- overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
- seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
- comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
- cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
- being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
This new definition is much broader than the existing Act, encompassing a range of conduct.
Advisers, including legal advisers, are now under additional obligations created by s.60D, and in particular to:
- inform the person that the person should regard the best interests of the child as the paramount consideration; and
- encourage the person to act on the basis that the child’s best interests are best met
Importantly, these changes protect shared care arrangements. This means the Family Law Act will continue to promote a child’s right to a meaningful relationship with both parents, with a stronger emphasise that the child’s safety must come first.
The changes will not allow parties to re-open finalised cases, or be the basis of further proceedings, as the changes do no in themselves constitute a change of circumstances.
For further information on the changes and how they might affect you, please contact our Principal Solicitor, Mr George Hanna on (02) 9587 0458 during business hours, or on ghanna@gmhlegal.com .