Changes to Family Law affecting Parenting Matters

Amendments to the Family Law Act which will commence on 7 June 2012 will include new definitions of ‘family violence’ and ‘abuse’. These amendments will significantly change important criteria which will influence outcomes of applications for parenting orders.

The new definition of family violence replaces the old definition with a much more extensive section. Family violence now means violent, threatening or other behaviour that coerces or controls a member of the person’s family, or causes the person to be fearful.

Numerous examples are given, including  repeated derogatory taunts, unreasonably denying financial autonomy, unreasonably withholding financial support for a family member and preventing a family member from making or keeping connections with his family friends or culture. It includes assault, sexual assault or sexual abusive behaviour, stalking, intentionally destroying property or death or injury to an animal and unlawful deprivation of liberty.

The Amendments attempt to address the issue of children being exposed to family violence by making it explicit that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

There are also examples of when a child is considered to be exposed to family violence. These include but are also not limited to overhearing threats, witnessing or hearing an assault, comforting or providing assistance to a family member, cleaning up after damage to property, or being present when police or paramedic officers attend.

Before these amendments, the concept of abuse was strictly limited to sexual conduct. Abuse now includes causing a child to suffer serious psychological harm (irrespective of the cause) or serious neglect.

 

By broadening the scope and/or clarifying the definition of family violence and abuse a greater range of behaviour will become relevant in parenting matters as the Act refers to the terms ‘family violence’ and ‘abuse’ on a multitude of occasions. A court as part of its reasoning process, must determine whether the presumption of equal shared parental responsibility applies. The presumption does not apply if there are reasonable grounds to believe a parent has engaged in family violence or abuse. 

Behaviour such which is designed to harass a person (by for example repeated derogatory taunts), and/or serious neglect of the child and/or causing a child to suffer serious psychological harm, including when that harm is caused by the child being subject to, or exposed to family violence will now enable a court to find that the presumption does not apply.

The impact of these changes will lead to the presumption of equal shared parental responsibility or equal time (or substantial and significant time) being denied more often.

The changes will impact on the use of Family Dispute Resolution to resolve parenting disputes. 

Parties are generally obliged to go to Family Dispute Resolution before they institute proceedings relating to parenting matter. An exemption applied in instances of family violence or risk of family violence.

Parties will be able to claim an exemption to the requirement to attend Family Dispute Resolution more easily as a result of the broader definition of family violence and abuse. 

The Amendments remove a provision (i.e. s 60CC(3)(c)) which refers to the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent as a factor to be taken into account when considering the best interests of the child. The provision is replaced with a provision that refers to the extent to which each of the parents has taken or failed to take the opportunity to participate in making long term decisions in relation to the child and to spend time with the child to communicate with the child.

The amendments place a greater emphasis in protecting a party or a child from harm or the risk of harm. The amendments clarify and broaden the scope and definition of family violence and abuse which will impact on the structure of parenting arrangements by reducing the frequency in which equal time or substantial and significant time orders will be made. It follows that facts which relate to family violence or abuse will be included in pleadings more regularly especially has they take into account any behaviour that could be construed as controlling. By increasing the scope of the definition of family violence and abuse parties will be able to claim exemption from the family dispute resolution process increasing their reliance on the court system.