New legislation passed 23 November 2011 now provides greater weighting for the Family Court to consider children welfare and family violence issues in determining the outcome of the parenting cases. This includes the assessment of the best interests of the child and taking into consideration whether there has been some abuse or whether there is a risk of abuse.

The passing of the Family Law Legislation Amendment (Family Violence and Other Measures) bill brings significant changes in the way that the Family Court system will treat matters involving family violence. 

Further information is provided below but if want any advice in relation to Parenting matters, these amendments or other Family Law matters, please contact our Head of Family Law, Natalie Fielding, by email or telephone 9629 9629.

New definition of abuse

The definition of abuse has been amended (from the previous section 4(1) of the Family Law Act 1975). Abuse is now defined as:

• an assault, including a sexual assault, of the child;
• 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;
• 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.

New definition of family violence

The amendments also redefine “family violence” and “member of the family”. Family violence is defined as:

• 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; or 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; 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, of his or her liberty.

New definition of when a child is exposed to family violence

The amendments define when a child is exposed to family violence as:

• if the child sees or hears family violence or otherwise experiences the effects of family violence;
• 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; 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.

The amendments also look at the way that the Court is able to rely upon evidence of family violence orders, and the inferences of these orders in assessing what is the best interests of a child.