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When family relationships break down it's always one of the
toughest areas of law to deal with and nigh impossible to get 100
per cent right. Whatever the decision, someone and sometimes
everyone, will be unhappy.
But the core aim of the law is to make decisions on what's
best for the children. Their safety and wellbeing is paramount and
this move should be applauded.
On June 7 new laws come into operation under the Family Law
Legislation Amendment (Family Violence and Other Measurers) Act
2011 which places even greater emphasis on protecting children
from harm and from being exposed to abuse, neglect, or
violence.
The new law expands the definition of family violence. It is not
just physical violence such as assault, sexual assault, stalking or
intentionally destroying property.
It includes any act or behavior that causes a family member to
be fearful such as harassment (repeated derogatory taunting),
coercion, stalking, controlling or emotional manipulation (such as
preventing them seeing family or friends), harming a pet and
financial abuse (withholding financial support or controlling
spending).
A child will be deemed exposed to family violence if they hear
or see others engaged in violence. This includes overhearing
threats of physical harm by one family member to another,
witnessing violence in the family or seeing someone cleaning up
after property has been damaged in a violent incident.
The court has to decide what is best for the child if there is
family violence. Currently there is a requirement for the parties
to inform the court of any allegation of family violence.
The changes follow concerns that shared parenting legislation
could place children in situations where they might be exposed to
family violence. While the aim is still to allow both parents to
share access to their children, the new laws make it clear this
will only happen if the child is safe from harm.
One significant change is that the new law removes the
requirement that for a person to allege family violence, they need
to have a 'reasonable' fear for their safety. There is some
concern that this change could bog down courts with untrue
exaggerated or "unreasonable" claims by a parent of
violence as a tactic to achieve a better result in court.
The Family Court can still award costs against anyone who makes
a false statement and it remains a criminal offence to knowingly
make false statements during court proceedings.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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