The Family Law Amendment Act 2011

Changes to the Family Law Act 1975 introduced in 2012 are aimed at ensuring that the protection of family members from family violence become a priority in family law matters.

The Family Law legislation Amendment (Family Violence and Other Measures) Act 2011 came  into effect on 7 June 2012  the Court has to give greater weight to protecting children when considering the primary considerations under the Act. Those considerations are:
(1) the benefit of the child of having a meaningful relationship with both parents; and
(2) the need to protect the child from harm.[1]

The amended provisions mean that the Court must prioritise protection from harm.
The changes to the Family Law Act were driven by various studies conducted by the Australian Institute of Family Studies, Family Law Council and former Family Court judge Professor Richard Chisholm. Those studies demonstrated high instances of family violence and safety concerns during family breakdowns and argued that the Family Law Act has previously failed to protect children and other family members from family violence and abuse. [2]

The amendments introduced include a new definition of “family violence” and “abuse” which broaden the previous definitions to better capture behaviour that is harmful, and also recognises that exposure to family violence is threatening to a child’s physical, emotional, psychological, social, education and behavioural wellbeing.[3]

Under the amendments, ‘Family violence’ now includes:

Violent, threatening or other behaviour that coerces or controls a family member or causes the family member to be fearful.

Examples given under the act include:

  • Assault, including sexual assault
  • Stalking
  • Derogatory taunts
  • Intentionally damaging or destroying property
  • Intentionally causing death or injury to an animal
  • Unlawfully depriving the family member of his or her liberty
  • Preventing the family member from keeping connections with family, friends and culture.

Abuse now includes:

–          An assault, including sexual assault, of the child;
–          Sexual activity with the child
–          Causing the child to suffer serious psychological harm, including when that harm is caused by being exposed to family violence
–          Serious neglect of the child.
The Explanatory Memorandum to the Family Law legislation Amendment (Family Violence and Other Measures) Bill states that this definition is designed to encompass stalking and financial control.
In the context of family law proceedings, those in the legal community including counsellors, legal practitioners and dispute resolution practitioners are now required to prioritise the safety of children. The Court will have better access to evidence of abuse and family violence by improvements to reporting requirements..[4]
This is achieved in part by the removal of the ‘friendly parent’ provision, which previously required the Court to consider the willingness of one parent to facilitate the child’s relationship with the other parent. The reports also showed that this provision had a practical effect in discouraging parents from reporting family violence and abuse, for fear of being labelled an ‘unfriendly parent.’ Now that this has been removed, it is hoped that all relevant information will be put before the Court in parenting matters..[5]

For more information, contact Carlos Turini

p: (02) 6206 1300 | e: cturini@elringtons.com.au

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[1]. Family Law Act 1975 (Cth) s60CC (2).
[2]. McLelland, R, Second Reading Speech, Family Law Amendment (Family Violence and Other Measures) Bill 2011.
[3]. Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2011
[4]. Ibid.
[5]. Ibid.