As of 7 July 2012, the new section 60CC(2A) of the Family Law Act came into effect. The new section requires a court to priorities ‘the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence’.
Prior to the amendments to the Family Law Act 1975 (Cth) (‘the Act’), the definition of ‘family violence’ was:
- ‘conduct, whether actual or threatened, by a person towards (or towards the property of) a family member that causes that or any other member of the person’s family reasonably to fear for or to reasonably be apprehensive about, his or her personal wellbeing or safety’.
Widening the definition of ‘family violence’
Substantial changes to the definitions of ‘family violence’ and ‘abuse’ were introduced in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). Specifically, the amendment included replacing the definition of ‘family violence’ (as above) with:
- ‘For the purposes of this Act, 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.
- Examples of behaviour that may constitute family violence include (but are not limited to):
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- 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; or
- 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.’’
The Australian Institute of Family Studies noted that ‘while all forms of violence are potentially damaging, some carry extreme risk and urgency. Very broad definitions increase the chance of drawing into the net very serious and urgent cases…’
The aim of the amendment is to ‘remove uncertainty about knowing the elements of an offence and whether an offence has been committed.’
Effects of widening the definition
Legislators, in an attempt to better protect vulnerable children and adults, particularly in regard to emotional and psychological violence, widened the definition of ‘family violence’.
1. ‘Reasonably to fear’
- Under the previous definition, for conduct to be considered as family violence, it was required for the family member ‘reasonably to fear’. Under the current definition, the requirement that fear be ‘reasonable’ is removed instead the family member is only required to be fearful or coerced. However, this requirement is qualified by the replacement of the word ‘conduct’ with the more specific wording ‘violent, threatening or other behaviour’.
2. ‘Other behaviour’
- By including the words ‘other behaviour’, legislators have possibly created a situation where conduct that would otherwise not be considered as family violence, can now be considered as such.
- This situation is made apparent when considering parenting and the controlling or coercion of children’s behavior.
- Examples of acts that, arguably, could now be considered as ‘violence’ under the new definition include:
- smacking a child’s to punish or control future behaviour;
- grounding a child to punish or control future behaviour; or
- withholding financial support to punish or control future behaviour.
- Under the new definition, ‘abuse’ is defined as:
- ‘an assault, including a sexual assault, of the child.
- ‘However, as the Act does not define the term ‘assault’ it may be understood using its ordinary legal meaning which is:
- ‘an actual, threatened or attempted application of force’.
- The issue is made apparent when considering parenting and the controlling or coercion of children’s behavior. Under the previous definition, the definition of abuse was limited such that it was:
- ‘…lawful for a parent or a person in the place of a parent to use by way of correction, discipline, management or control towards a child…such force as is reasonable under the circumstances.
- ‘However, under the new definition, no such provision is made such that there may be ambiguity in what could be considered as ‘abuse’.
- Examples of acts that, arguably, could now be considered as ‘abuse’ under the new definition include:
- smacking a child; or
- threatening to smack a child.
How Ramsden Lawyers can help
The new definitions in the Family Law Act can have serious implications for you and your family.
Family Law is a complex area of the law that requires expertise and experience.
Here at Ramsden Lawyers our Family Law department has the necessary expertise and experience to deal with any Family Law matter.
28 May 2013