On 7 June, 2012 amendments to the Family Law Act (FLA) commenced which will have significant impact upon the way in which parenting disputes are dealt with by the Family and Federal Magistrates Court.
As a result of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, in parenting disputes the right of the child to be protected from harm is given greater weight over the right of the child to have a meaningful relationship with each parent.
It is intended that the legislation ‘ … will provide better protection for children and families at risk of violence and abuse’. The FLA retains the substance of the shared parenting laws introduced in 2006 and continues to promote a child’s right to a meaningful relationship with both parents provided it is safe for the child. Further the legislature has stated that the intention of the amendment was to address issues of community concern by strengthening the role of the courts, advisors and parents in preventing harm to children whilst still supporting the concepts of shared parental responsibility and shared care, where it is safe for the children.
In a nutshell, the key changes have:-
- prioritised the safety of children in parenting matters;
- changed the definition of ‘abuse’ and ‘family violence’ to better capture harmful behaviour;
- strengthened advisor obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children;
- ensured the courts have better access to evidence of abuse and family violence by improving reporting requirements; and
- made it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.
There is now a new definition of abuse within the Family Law Act which includes assault, sexual abuse and exploitation, causing a child to suffer serious psychological harm, including where the child is exposed to family violence and serious neglect of the child. There is also no longer the requirement for an “assault” to be considered a criminal offence under relevant state law.
Family Violence has also been defined and includes ‘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’.
As to how these changes will affect decision making regarding parenting matters, no-one yet knows, however the court is now required by s60CC(2A) to place greater weight on protecting children from harm when there is a conflict between that concern and the Court’s concern to ensure that a child has a meaningful relationship with both their parents.
A study of parenting matters through the Court indicated that as a result of the requirement in the Family Law Act to be seen to be encouraging and facilitating a relationship with a parent, victims of family violence and abuse were concerned about how their conduct in protecting their child would be viewed and accordingly were not reporting incidents to the Court or the police for fear of being seen as an “unfriendly parent”. This provision has now been removed so as to encourage parties to alert the Court of any incidents of abuse and family violence so that relevant information is before the Court during its determination of what parenting orders are to be made.
The other most significant amendment enables the Court to consider the terms of any family violence Order, even if an interim Order or an Order made on a “without admissions” basis.
If you wish to discuss how these changes could affect your current or potential litigation regarding the living arrangements for your children, or any other family law concern that you may have, please do not hesitate to contact us on 1800 621 071 or email email@example.com.