The Family Law Amendment (Family Violence) Bill 2010, released
by Attorney-General Robert McClelland on 11 November 2010, aims to
prioritise the safety of children over other considerations,
including the need for children to have a meaningful relationship
with both parents.
The proposed amendments:
increase the obligations on family lawyers and other
broaden the definitions of family violence and abuse to include
more specific behaviours;
encourage people to submit evidence of abuse and family
violence to the Courts; and
remove obstacles for child welfare authorities who become
involved in proceedings.
Background to the Family Violence Bill
Following the 2006 shared parenting reforms to the Family
Law Act 1975 (Cth), there was widespread concern that some
incidences of family violence were being dismissed due to the need
to prioritise a child's relationship with both parents.
Reports commissioned by the Family Law Council, Professor Richard
Chisholm AM and the Australian Institute of Family Studies
highlighted the need for a change to parenting laws to emphasise
the safety of children as the paramount consideration.
A summary of the proposed amendments
Under the Family Law Act, there are two primary considerations
that must be taken into account when considering what is in the
best interests of a child - the need for the child to have a
meaningful relationship with both parents, and the need to protect
the child from physical or psychological harm. In situations where
the child is subject to abuse or family violence, the Family
Violence Bill places greater emphasis on the need to protect a
child from harm.
The definition of 'family violence' within the Act
is to be expanded to specify the types of behaviour that constitute
family violence, including physical assault, harassment, emotional
manipulation, financial abuse and threatening behaviour.
Similarly, the definition of 'abuse' of a child
within the Act is to be extended to include physical abuse or
non-accidental physical injury, sexual abuse and exploitation,
psychological abuse (including situations where this may be caused
by exposure to family violence) and neglect.
The Bill introduces the obligation for advisors (such as family
dispute resolution practitioners, lawyers, family counsellors and
family consultants) to encourage parents to consider the
child's best interests as the paramount consideration.
There will also be an obligation placed on advisors to prioritise
the protection of the child from harm where there are concerns
about family violence or abuse.
A requirement will be introduced for parties to proceedings who
allege family violence to file a Notice of Child Abuse or Family
Violence with the Court. The Court will then be required to take
prompt action to deal with the issues.
The Bill introduces obligations on parties to proceedings to
inform the Court if there is a care order under a child welfare law
in place for the child, and if the child is or has been the subject
of a notification or investigation by a child welfare authority.
Other people would also be able to provide this information to the
The Bill removes provisions in the Act regarding the
willingness and extent to which one parent has facilitated the
child's relationship with the other parent. These
provisions are currently taken into account in determining the best
interests of a child, and in considering orders when dealing with
parenting arrangements and parental responsibility. Reports suggest
that as a result of these provisions, some lawyers caution parents
from alleging family violence or abuse where there is little
The Bill removes mandatory costs orders for a party to pay the
costs of another party to proceedings if they have failed to
substantiate claims in relation to family violence and abuse.
The Bill introduces a requirement for Courts that are dealing
with applications for parenting orders to enquire about past or
future risk, or the previous experience of the children, in
relation to family violence or child abuse.
The Bill introduces immunity from costs orders for child
welfare authorities and officers who intervene to become a party to
proceedings under the Family Law Act at the request of the Court,
where the officers act in good faith.
It's worth noting that the amendments will not have any
effect on family law matters where child abuse or family violence
is not a concern.
The Family Violence Bill is open for public comment until
January 2011. For more information on the Family Violence Bill and
its effects on family law proceedings, please contact
HopgoodGanim's Family Law practice.
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