The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 made changes to the Family Law Act 1975 to better protect children from harm. It amended the definition of family violence and abuse, and made the protection of children from harm the primary consideration in determining a child's best interests. Courts must now give greater weight to protecting children from physical or psychological harm than to the child having a relationship with both parents. The legislation also expanded requirements for notifying courts and authorities about risk of harm to children.

1. Family Law Legislation
Amendment (Family Violence and Other
Measures) Act 2011
The need to protect children from
physical or psychological harm from being
subjected to, or exposed to abuse,
neglect or family violence is now THE
primary consideration (C) Denise Sullivan 2012

2. The Family Law Act 1975 (Cth)
To determine the child’s best
interests, 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. 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. 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(“Friendly Parent Clause’ Repealed by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. 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. 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. Meaningful Relationship?
BEST INTERESTS – PROTECTION FROM HARM?
(C) Denise Sullivan 2012

8. Harm Arising from Conflict after
Separation
•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. 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. 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. 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. Definition of Abuse
an assault, including a sexual assault, of the child
(C) Denise Sullivan 2012

13. involving the child in a sexual activity... in which the
child is used...as a sexual object... and where there
is unequal power in the relationship between the
child and the first person
???Exposing children to pornography
not expressly included????
(C) Denise Sullivan 2012

14. 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
(C) Denise Sullivan 2012

15. ??? Psychological harm caused by
parental conflict not expressly included
(C) Denise Sullivan 2012

16. serious neglect of the child
(C) Denise Sullivan 2012

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. 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.
(C) Denise Sullivan 2012

19. •An assault; or
•A sexual assault or other sexually abusive
behaviour; or
•Stalking; or
•Repeated derogatory taunts
(C) Denise Sullivan 2012

20. •Intentionally damaging or destroying
property; or
•intentionally causing death or injury to an
animal (C) Denise Sullivan 2012

21. •Unreasonably denying a family member the
financial autonomy that he or she would otherwise
have 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. •Preventing the family member from making
or keeping connections with his or her family,
friends or culture
(C) Denise Sullivan 2012

23. • Unlawfully depriving the family member, or
any member of the family member’s family,
of his or her liberty
(C) Denise Sullivan 2012

24. A child is exposed to family violence if the
child sees or hears family violence or
otherwise experiences the effects of family
violence
(C) Denise Sullivan 2012

25. Examples of Exposure to
Family Violence...
•Overhears threats...
•Sees or hears an assault...
•Provides comfort or
assistance to a person who
has been assaulted ...
•Cleans up after...
•Present when police or
ambulanceattend an
incident…
(C) Denise Sullivan 2012

26. Relevant Inferences drawn from
Family 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. Notification to the Court:
If the child or another child in the
person’s family is under a care order
a party MUST inform the court
another person who is aware
MAY inform the court
(C) Denise Sullivan 2012

28. Notification to the Court:
If the child or another child in the person’s
family is the subject of:
a notification
an investigation
a party MUST inform the court
another person who is aware
MAY inform the court
(C) Denise Sullivan 2012

29. Notification to Child Protection
Authorities:
court officials, family counsellors, FDRP’s, arbitrators,
independent children’s lawyers
If ...reasonable grounds
to suspect that a
child has been abused, or
is at risk of abuse…MUST
notify Child Protection
Authority
(C) Denise Sullivan 2012

30. Notification to Child Welfare Authorities:
court officials, family counsellors, FDRP’s, arbitrators,
independent children’s lawyers
if...reasonable grounds to suspect that a
child has been ill treated, or is at risk of being
ill treated ... OR EXPOSED TO BEHAVIOUR
WHICH PSYCHOLOGICALLY HARMFUL
MAYNOTIFY CHILD WELFARE AUTHORITY
(C) Denise Sullivan 2012

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. 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