Changes to the Family Law Act through the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 means that the scope of family violence under the Amending Act is much broader and the relevance of exposure of children to family violence has been clarified.
In circumstances where a relationship has broken down and children are involved, there is law that determines what arrangements should be made for children to see each of the parties to the relationship, as well as other people interested in their care, welfare and development, such as grandparents. That law is known as the Family Law Act [“the Act”].
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 [“the Amending Act”] is a law that was recently passed by the Federal Parliament. It changes the Act in some important ways including how the Family Law Courts deal with family violence.
Under the law as it stood before the Amending Act came into effect, section 4 of the Act provided that family violence meant conduct by one person towards another person which caused that other person to reasonably fear for, or be reasonably apprehensive, about his or her personal well being or safety. That conduct could be actual or threatened. It could be directed towards a person, that person’s property or a member of that person’s family.
The test invited an assessment of whether the fear or apprehension is “reasonable”, and was therefore an objective test. The assessment would not necessarily have regard to the fear or apprehension from the perspective of the alleged victim. Rather, it considered the fear or apprehension from the view of ‘the ordinary person’ – a test often used in other areas of the law.
Family violence: the new law
The Amending Act introduces a new definition of family violence: “violent, threatening or other behaviour” by one person that “coerces or controls” a member of that person’s family or “causes the family member to be fearful”.
Examples of such behaviour include:
- an assault;
- a sexual assault or other sexually abusive behaviour;
- stalking;
- repeated derogatory taunts;
- intentionally damaging or destroying property;
- intentionally causing death or injury to an animal;
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
What has changed?
The scope of family violence under the Amending Act is much broader than under the old law. The reference to “reasonableness” has not been carried forward to the new law.
Further, the relevance of exposure of children to family violence has been clarified. Such exposure arises “if the child sees or hears family violence or otherwise experiences the effects of family violence”. Examples include:
- overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family;
- seeing or hearing an assault of a member of the child’s family by another member of the child’s family;
- comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family;
- cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family;
- being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Under the old law, there are two ‘primary considerations’ in determining the best interests of the children:
- The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Under the Amending Act, a new section 60CC(2A) is introduced to provide that the need to protect the child from harm is to be given greater weight than the other primary consideration.
How does this affect my case?
Section 45 of the Amending Act provides that the amendments relating to family violence outlined above apply in relation to proceedings commenced on or after the date of the commencement of the Amending Act, which is 7 June 2012. Therefore, if your matter started before that date, the old law will continue to apply.
