Adelaide family law specialist Jane Miller explains new family law amendments, which aim to provide greater protection for children.
On 7 June 2012 major changes in family law will come into effect, relating to how the courts treat family violence in child custody disputes. The amendments to the Family Law Act respond to research relating to major law reforms which took place in 2006 regarding shared parenting. The amendments aim to better prioritise the safety of children whilst still recognising the importance of children maintaining a relationship with both parents after separation.
The amendments, which were passed by Federal Parliament in late 2011, will significantly change the definition of "family violence" within the Act. The definition will be much broader and will include behaviour which coerces, controls or causes fear to a family member. The amendments provide examples of what may be family violence, including unreasonably withholding financial support or preventing a family member from keeping connections with extended family. The amendments also recognise that exposing a child to family violence, which is not limited to a child personally witnessing an act of violence, may constitute child abuse.
By bringing a more contemporary definition to "family violence", we will also see the Court better positioned to determine when shared parenting is and isn't in a child's best interests.
These changes also remove previous disincentives to reporting family violence in Court proceedings. It is therefore hoped that the Court will receive all information relevant to determining what is in a child's best interests before making orders about that child's future living arrangements.
The amendments only apply to cases started in the Family Law Courts on or after 7 June 2012. If couples are currently involved in a parenting dispute before the Courts, then these amendments will not have any impact on their proceedings.
Likewise, the amendments do not impact any orders which may have been made by the court to date. It is likely that many parents will want their orders reconsidered by the Court in light of the amendments and the new definitions of family violence and abuse. However, such parents are only entitled to have their matters reconsidered by the court if there has been a material change in their circumstances, and the family violence law reform does not in itself represent such a change that would enable the court to reopen a case.
These law reforms will impact upon the requirements for compulsory mediation. At present, the law requires parents to attend mediation (known as Family Dispute Resolution) before they can start proceedings in court. In fact, proceedings cannot be started in Court without the applicant producing to the court a certificate evidencing that FDR has been attempted. The law provides some exemptions to this requirement, for example in cases of urgency or if family violence exists.
As a result of the broadening definition of family violence, we expect to see more couples entitled to an exemption from the FDR requirement. This is likely to significantly increase the number of matters the Court is asked to rule on without the parties having first participated in FDR.
These amendments represent a significant shift in Australia in recognising, reporting and dealing with family violence and parenting disputes, and are welcomed as being a positive step for children at the centre of custody disputes.
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Jane Miller is an Accredited Family Law Specialist and Partner at South Australia’s largest family and divorce law firm, Tindall Gask Bentley. Contact (08) 8212 1077.