Government Targets Family Violence with New Bill

By Geoff Wilson, Partner

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 advisors;
• 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 Court.
• 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 evidence.
• 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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