Family law amendments


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Family law amendments

  1. 1. Family Law LegislationAmendment (Family Violence and Other Measures) Act 2011The need to protect children fromphysical or psychological harm from beingsubjected to, or exposed to abuse,neglect or family violence is now THEprimary consideration (C) Denise Sullivan 2012
  2. 2. The Family Law Act 1975 (Cth)To determine the child’s bestinterests, court considers:• The benefit of a meaningful relationship with both parents• The need to protect from harm GREATER WEIGHT TO PROTECTION thanRELATIONSHIP (C) Denise Sullivan 2012
  3. 3. 60CC(2) The primary considerations are: (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. (2A) In applying the consideration set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b) (C) Denise Sullivan 2012
  4. 4. Additional Considerations:• Views expressed by children• Nature of relationship (with parents and others)• Willingness of parent to facilitate relationship (“Friendly Parent Clause’ Repealed by Amendment)• Extent to which parent has: (Inserted by amendment) • Participated in decisions • Spent time with the child • Communicated with the child • Maintained the (C) Denise Sullivan 2012 child
  5. 5. Additional Considerations:• Likely effect of a change – Separation from a parent – Separation from another child or grandparent• Practical difficulty and expense of spending time and communicating• Capacity of the parents to provide for the child’s needs including EMOTIONAL and intellectual needs• Maturity, sex, lifestyle and background (C) Denise Sullivan 2012
  6. 6. Additional Considerations:• The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture• The attitude demonstrated by the parent to the child and to the responsibilities of parenting• Family violence involving the child or a member of the child’s family• Family Violence Order• Further proceedings to be reduced• Other relevant facts (C) Denise Sullivan 2012
  7. 7. Meaningful Relationship?BEST INTERESTS – PROTECTION FROM HARM? (C) Denise Sullivan 2012
  8. 8. Harm Arising from Conflict afterSeparation •Witnessing Conflict •Passing messages •Can’t talk about other parent •Can’t share life •Can’t take toys or clothes •Asked to choose •Provided with too much information •Asked for information •Overhearing negative comments (C) Denise Sullivan 2012
  9. 9. Harm from One Parent• Mental Illness• Drug and Alcohol Abuse• Neglect• Physical Violence• Emotional Harm• Sexual Abuse• Exposure to others (C) Denise Sullivan 2012
  10. 10. Harm from Continued Power and Control • Persisting with Court Action • Avoiding Child Support • Arrangements to suit Abuser • Fear and Appeasement • Unreasonable demands • Threats against Children (C) Denise Sullivan 2012
  11. 11. The Family Law Legislation Amendment(Family Violence and Other Measures) Act 2011 (Cth) Changes to Considerations for Best Interests of Children Changes to Definition of Abuse Changes to Definition of Family Violence Notice to the Court of Child Abuse or Family Violence (C) Denise Sullivan 2012
  12. 12. Definition of Abusean assault, including a sexual assault, of the child (C) Denise Sullivan 2012
  13. 13. involving the child in a sexual activity... in which thechild is a sexual object... and where thereis unequal power in the relationship between thechild and the first person ???Exposing children to pornography not expressly included???? (C) Denise Sullivan 2012
  14. 14. causing the child to suffer seriouspsychological harm, including (but notlimited to) when that harm is caused by thechild being subjected to, or exposed to, familyviolence (C) Denise Sullivan 2012
  15. 15. ??? Psychological harm caused byparental conflict not expressly included (C) Denise Sullivan 2012
  16. 16. serious neglect of the child (C) Denise Sullivan 2012
  17. 17. Definition of Family Member for the purpose of Family Violence includes any person who: “is or was married”“relative” (including extended family) “de facto relationship” “ordinarily resides or resided with” (C) Denise Sullivan 2012
  18. 18. Family Violence means:•Violent, threatening or other behaviour bya person that coerces or controls a memberof the person’s family (the family member)or causes the family member to be fearful. (C) Denise Sullivan 2012
  19. 19. •An assault; or•A sexual assault or other sexually abusivebehaviour; or•Stalking; or•Repeated derogatory taunts (C) Denise Sullivan 2012
  20. 20. •Intentionally damaging or destroyingproperty; or•intentionally causing death or injury to ananimal (C) Denise Sullivan 2012
  21. 21. •Unreasonably denying a family member thefinancial autonomy that he or she would otherwisehave had; or •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 (C) Denise Sullivan 2012
  22. 22. •Preventing the family member from makingor keeping connections with his or her family,friends or culture (C) Denise Sullivan 2012
  23. 23. • Unlawfully depriving the family member, orany member of the family member’s family,of his or her liberty (C) Denise Sullivan 2012
  24. 24. A child is exposed to family violence if thechild sees or hears family violence orotherwise experiences the effects of familyviolence (C) Denise Sullivan 2012
  25. 25. Examples of Exposure to Family Violence...•Overhears threats...•Sees or hears an assault...•Provides comfort orassistance to a person whohas been assaulted ...•Cleans up after...•Present when police orambulanceattend anincident… (C) Denise Sullivan 2012
  26. 26. Relevant Inferences drawn fromFamily Violence Orders (DVO’s) •Nature of the order •Circumstances in which the order was made •Any evidence admitted in proceedings for the order •Any findings made by the court… • any other relevant matter (C) Denise Sullivan 2012
  27. 27. Notification to the Court:If the child or another child in theperson’s family is under a care ordera party MUST inform the courtanother person who is aware MAY inform the court (C) Denise Sullivan 2012
  28. 28. Notification to the Court:If the child or another child in the person’sfamily is the subject of:a notificationan investigationa party MUST inform the courtanother person who is aware MAY inform the court (C) Denise Sullivan 2012
  29. 29. Notification to Child ProtectionAuthorities:court officials, family counsellors, FDRP’s, arbitrators,independent children’s lawyersIf ...reasonable groundsto suspect that achild has been abused, oris at risk of abuse…MUSTnotify Child ProtectionAuthority (C) Denise Sullivan 2012
  30. 30. Notification to Child Welfare Authorities:court officials, family counsellors, FDRP’s, arbitrators,independent children’s lawyersif...reasonable grounds to suspect that achild has been ill treated, or is at risk of beingill treated ... OR EXPOSED TO BEHAVIOURWHICH PSYCHOLOGICALLY HARMFULMAYNOTIFY CHILD WELFARE AUTHORITY (C) Denise Sullivan 2012
  31. 31. The Court MUST ASK the Parties• Whether .... the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and• whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence (C) Denise Sullivan 2012
  32. 32. The Court MAY REQUEST• The intervention of a child protection officer• The officer MAY intervene• Where the officer intervenes, they become a party to the proceedings• But no costs order can be made against the officer. (C) Denise Sullivan 2012