Navigating through the Family Law Legislation Amendment ( Family

Violence and Other Measures) Act 2011

Trent WallerFamily Law Partner Carne Reidy Herd

LawyersBrisbane

Background

• Act motivated by published research that:– 85% women and 56% of men reported dv and/or

child abuse during former relationship;– 65% women had left partnership because of dv; – Often no discrimination between violence on

spouse and children; – Reported child abuse, serious and exceeded

neglect.

Background

• After 2006, reports of violence to their solicitors not believed or appropriately acted upon;

• Perception that Court disbelieved, ignored or minimised assertions of violence.

Background

• The Report called for:– Widening of the definition of family violence; – Safety of parents and children from violence to be

given higher priority then shared parental responsibility;

– Removal of friendly provisions;– Removal of impediments to disclosure of violence.

• Act not adequately protecting children and adults from family violence and abuse.

The Amendments

• Altered definitions of “ family violence” and “ abuse”;

• A weighting in the primary considerations of s.60CC(2);

• Amendments to the additional considerations within 60CC(3);

• Increased notification requirements; • Strengthening obligations of advisers; • Removal of s.117AB

“ Abuse” – current definition

Abuse, in relation to a child means:(a) An assault, including sexual assault of a child which is an

offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

(b) A person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned or the other person and where there is unequal power in the relationship between the child and the first mentioned person.

The new definition of “ Abuse”

Abuse, in relation to a child means: • an assault, including a sexual assault, of the child; or• a person ( the first person) involving the child in a sexual

activity with the first person or another person in which the child is used, directly or indirectly , as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

• causing the child to suffer serious psychological harm, including ( but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

• serious neglect of the child.

“Abuse” – what has changed?

• An assault ( including sexual assault) no longer needs to constitute an offence under a State or Territory law;

• Two new concepts: – Serious psychological harm by any means; and

– Serious neglect of a child

• Compare “ serious psychological harm of a child” with the protections within s.60CC(2)(b)

What does serious neglect mean?

• For the Courts to set the standard. • My guess – a significant or substantial failure

of a parent in discharging a duty or care of the child

Family Violence – current definition

Family Violence means conduct, whether actual or threatened, by a person towards, or towards the property of , a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

New definition of “ Family Violence”

• For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

Examples of “Family Violence”• An assault; or• A sexual assault or other sexually abusive behaviour; or• Stalking; or• Repeated derogatory taunts; or• Intentionally damaging or destroying property; or• Intentionally causing death or injury to an animal; or• Unreasonably denying the family member the financial autonomy that he or she

would otherwise have had; or• Unreasonably withholding financial support needed to meet the reasonable living

expenses if the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or

• 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, or his or her liberty.

“Family Violence” – what is new ?

• To come within the definition need: – Violent, threatening or other behaviour ( which is

similar to violent or threatening) which either: • Coerces or controls a family member; or• Causes a family member to be fearful.

“Family Violence” – What is new?

• Removal of reasonable test; • S.60I implications; • Increase number of matters where

presumption under s.61DA will be rebutted; • Consent Orders.

New definition of “ exposed”

For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

Examples of “exposed”• Overhearing threats of death or personal injury by a member of

the child’s family towards another member of the child’s family; or• Seeing or hearing an assault of a member of the child’s family by

another member of the child’s family; or• Comforting or providing assistance to a member of the child’s family

who has been assaulted by another member of the child’s family; or • Cleaning up a site after a member of the child’s family has

intentionally damaged property of another member of the child’s family; or

• 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.

Where does “exposed” fit within the Act

1. Within the second of the primary considerations, s60CC(2)(b): “ the need to protect the child from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence

2. One of the definitions of “abuse”

“exposed”

• A child must see, hear or otherwise experience an act or acts that fall within the definition of family violence– E.g. hearing or seeing a verbal argument that does

not fall within the definition of family violence is not enough.

Weighting to Primary considerations

• The primary considerations are –s .60CC(2): • (a) the benefit to the child of having a

meaningful relationship with both of the child’s parents; and

• (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Weighting to Primary Considerations – a new subsection

s.60CC (2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the considerations set out in paragraph (2) (b).

Weighting to Primary Considerations

• How much greater? • Will not necessarily lead to a reduction of time

and meaningful relationship; • Court still has licence to assess risk; • To reduce or remove risk – Court can still

deploy measures of supervised time and injunctions

Amendments to additional considerations

• The “friendly provision” in s.60CC(3)(c) is gone; “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”

• Sections 60CC(4) and 60CC(4A) have been removed because...

Amendments to additional considerations

they have been moved up to replace s.60CC(3)(c) to read:

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

• (i) to participate in making decision about major long-term issues in relation

to the child; and • (ii) to spend time with the child; and • (iii) to communicate with the child; and (ca) the extent to which each of the child’s parents has

fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

Amendments to additional considerations – DV Orders

• S.60CC(3)(k) has been amended to require the Court having regard to any family violence order applying to a child or member of the child’s family;

• No longer confined to final or contested orders;

• Court will not focus on the Order itself, rather the factual circumstances of the Order.

Increased notification requirements

• New s.60CH – mandates notification of child welfare orders;

• New s.60CI – mandates notification of notifications, investigations etc to child welfare authorities;

• New s.67Z(4) and s.67ZBA – parties and ICL to file notice of abuse or risk of abuse/ family violence ( currently Form 4)

Increased notification requirements

• S.60K replaced with s.67ZBB– The difference is that the notice, not an affidavit

alleging abuse/family violence will mandate the Court taking prompt action

Strengthening the obligations of advisers

Legal Practitioners, family counsellors, family dispute resolution practitioners and family consultants must:

• Inform the person that the person should regard the best interests of the child as the paramount consideration; and

• Encourage the person to act on the basis that the child’s bests interests

are best met:

(i) By the child having a meaningful relationship with both of the child’s parents; (ii) By the child being protected from physical or psychological harm from being

subjected to, or exposed to, abuse, neglect or family violence; and

• In applying the consideration set out in subparagraphs (i) and (ii) – by giving greater weight to the consideration set out in paragraph (ii).

Section 117AB

• RemovedThis section applies if:(a) Proceedings under this Act are brought before a Court; and

(b) The court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings

The Court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.

When does it all start

• 7 June 2012;• Applies to proceedings instituted after that

date; • Amendments do not give rise to a change in

circumstance.

THANK YOU

Trent WallerAccredited Specialist Family Law

Carne Reidy HerdLawyers

Brisbane