The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 is an Act of the Australian Parliament that amends the Family Law Act 1975. It has four parts and its main amendments involve how courts define and respond to allegations of child abuse and domestic violence.
Origins
The Family Law Legislation Amendment Act 2011 was introduced to the Australian Parliament on 24 March 2011 and came into effect on 7 June 2012. It was implemented in an attempt to respond to the criticisms of the Family Law Amendment (Shared Parental Responsibility) Act 2006 by the Australian Institute of Family Studies, Professor Richard Chisholm and Family Law Council, who all conducted inquiries into the 2006 Act. Professor Chisholm's "Family Courts Violence Review" concluded that the 2006 Family Law Amendment Act's introduction of a shared parental responsibility provision had been misinterpreted by courts and parents as a provision for equal shared care time and had led to parents considering only "their own entitlements rather than what was best for their children". Further, the Australian Institute of Family Studies inquiry "Evaluation of the 2006 family law reforms" suggested that the friendly parent provisions had increased the likelihood of a child remaining with a family member who exposed them to family violence. Charles Pragnell from the National Council for Children Post-Separation argued that this occurred as the provision led to "mothers remain[ing] silent about domestic violence" and judges "seeing the right of shared care as the principle overriding consideration...giving custody of children to convicted pedophiles and violent offenders". Based on these inquiries, the Australian Law Reform Commission called for the 2006 Act to be amended. This led to the implementation of the Family Law Legislation Amendment Act in 2011.
Major features
The Family Law Legislation Amendment Act 2011 contains two schedules: "Schedule 1- Amendments relating to family violence" and "Schedule 2- Other amendments", which are each divided into two further parts.
New definitions
Schedule 1 of the Family Law Legislation Amendment Act 2011 redefined both family violence and child abuse. It redefined family violence to include "controlling actions" and removed the condition that a person must "reasonably" fear for their personal security. In section 4AB it redefined family violence as "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". Further, the Act provided an extensive but not exhaustive list of instances of family violence in its new sub-section 4AB(2), which include instances of stalking and repeated derogatory taunts. It also specifies that exposure to family violence occurs when a child sees of hears family violence and listed examples of possible situations of exposure. In redefining child abuse, the Family Law Legislation Amendment Act 2011 listed two new categories of behaviour that constitute as abuse; serious neglect and actions that cause serious physiological harm.
Primary consideration
The Family Law Amendment Act 2006 introduced the provision that equal shared responsibility for both parents is the optimal interest of the child. This was based on two of the child's rights, first, their right to have an ongoing relationship with both of their parents and, second, the child's right to be safe from abuse and harm. In subsection 60CC(2) the Family Law Legislation Amendment Act 2011 included a provision that if a conflict arises between the two primary best interest considerations, the requirement to ensure a child is safe from harm should be prioritised over the concern for a child's relationship with both parents. This meant that the requirement that a child be protected from abuse became the primary consideration of the court.
Removal of the friendly parent provision
The Family Law Amendment Act 2006 included a provision that required the court to consider how supportive each child's parents were of an supporting an ongoing relationship between their child and the other parent when determining what is best for the child, referred to as the "friendly parent provision" by legal practitioners. The Family Law Legislation Amendment Act 2011 removed this provision from the consideration of the court.