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Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Schedule 1 Amendments relating to family violence

Part 1 Amendments

Family Law Act 1975

1  Subsection 4(1) (definition of abuse )

Repeal the definition, substitute:

abuse , in relation to a child, means:

                     (a)  an assault, including a sexual assault, of the child; or

                     (b)  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; or

                     (c)  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

                     (d)  serious neglect of the child.

2  Subsection 4(1)

Insert:

exposed to family violence, in relation to a child, has the meaning given by subsection 4AB(3).

3  Subsection 4(1) (definition of family violence )

Repeal the definition, substitute:

family violence has the meaning given by subsection 4AB(1).

4  Subsection 4(1) (definition of member of the family )

Repeal the definition, substitute:

member of the family has the meaning given by subsection (1AB).

Note:          The definition in subsection (1AB) applies for the purposes of the provisions specified in that subsection.

5  Subsection 4(1) (paragraph (a) of the definition of Registry Manager )

Omit “section 67Z”, substitute “sections 67Z and 67ZBA”.

6  Paragraph 4(1AB)(a)

Repeal the paragraph, substitute:

                     (a)  the definition of step-parent in subsection (1); and

                    (aa)  section 4AB; and

7  Paragraph 4(1AB)(c)

Omit “section 60CF”, substitute “sections 60CF, 60CH and 60CI”.

8  After section 4AA

Insert:

4AB   Definition of family violence etc.

             (1)  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.

             (2)  Examples of behaviour that may constitute family violence include (but are not limited to):

                     (a)  an assault; or

                     (b)  a sexual assault or other sexually abusive behaviour; or

                     (c)  stalking; or

                     (d)  repeated derogatory taunts; or

                     (e)  intentionally damaging or destroying property; or

                      (f)  intentionally causing death or injury to an animal; or

                     (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

                     (h)  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

                      (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

                      (j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

             (3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

             (4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

                     (a)  overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

                     (b)  seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

                     (c)  comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

                     (d)  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

                     (e)  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.

9  Subsection 12E(3) (note)

Repeal the note, substitute:

Note:          For other obligations of legal practitioners in relation to Part VII matters, see sections 60D and 63DA.

10  Subsection 12G(1) (note)

Repeal the note, substitute:

Note:          For other obligations of family counsellors and family dispute resolution practitioners in relation to Part VII matters, see sections 60D and 63DA. Those sections do not apply to arbitrators.

11  Paragraph 43(1)(ca)

Omit “safety”, substitute “protection”.

12  After paragraph 60A(a)

Insert:

                    (aa)  provisions dealing with the best interests of the child in court proceedings (Subdivision BA); and

                   (ab)  provisions dealing with an adviser’s obligations in relation to the best interests of the child (Subdivision BB); and

13  At the end of section 60B

Add:

             (4)  An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Note:          The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

14  Section 60C (cell at table item 1, column headed “Divisions and coverage”)

After:

·            object of Part and principles underlying it, and outline of Part

insert:

·            best interests of the child: court proceedings

·            best interests of the child: adviser’s obligations

15  Section 60C (cell at table item 8, column headed “Divisions and coverage”)

Omit:

·            reporting of allegations of child abuse

substitute:

·            reporting of allegations of child abuse and family violence

16  Subdivision BA of Division 1 of Part VII (heading)

Repeal the heading, substitute:

Subdivision BA Best interests of the child: court proceedings

17  After subsection 60CC(2)

Insert:

          (2A)  If there is any inconsistency in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

18  Paragraph 60CC(3)(c)

Repeal the paragraph, substitute:

                     (c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

                              (i)  to participate in making decisions about major long-term issues in relation to the child; and

                             (ii)  to spend time with the child; and

                            (iii)  to communicate with the child;

                    (ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

19  Paragraph 60CC(3)(k)

Repeal the paragraph, substitute:

                     (k)  any family violence order that applies to the child or a member of the child’s family;

20  Subsections 60CC(4) and (4A)

Repeal the subsections.

21  At the end of Subdivision BA of Division 1 of Part VII

Add:

60CH   Informing court of care arrangements under child welfare laws

             (1)  If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.

             (2)  If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.

             (3)  Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).

60CI   Informing court of notifications to, and investigations by, prescribed State or Territory agencies

             (1)  If:

                     (a)  a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

                              (i)  a notification or report (however described) to a prescribed State or Territory agency; or

                             (ii)  an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

                     (b)  the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;

that party must inform the court of the matter.

             (2)  If:

                     (a)  a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

                              (i)  a notification or report (however described) to a prescribed State or Territory agency; or

                             (ii)  an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

                     (b)  the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;

that person may inform the court of the matter.

             (3)  Failure to inform the court of the matter does not affect the validity of any order made by the court.

             (4)  In this section:

prescribed State or Territory agency means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.

22  After Subdivision BA of Division 1 of Part VII

Insert:

Subdivision BB Best interests of the child: adviser’s obligations

60D   Adviser’s obligations in relation to best interests of the child

             (1)  If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:

                     (a)  inform the person that the person should regard the best interests of the child as the paramount consideration; and

                     (b)  encourage the person to act on the basis that the child’s best interests are best met:

                              (i)  by the child having a meaningful relationship with both of the child’s parents; and

                             (ii)  by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

                            (iii)  if there is any inconsistency in applying the considerations set out in subparagraphs (i) and (ii)—by giving greater weight to the consideration set out in subparagraph (ii).

             (2)  In this section:

adviser means a person who is:

                     (a)  a legal practitioner; or

                     (b)  a family counsellor; or

                     (c)  a family dispute resolution practitioner; or

                     (d)  a family consultant.

23  Section 60K

Repeal the section.

24  Before subsection 63DA(1)

Insert:

          (1A)  The obligations of an adviser under this section are in addition to the adviser’s obligations under section 60D.

Note:          Section 60D deals with an adviser’s obligations in relation to the best interests of the child.

25  Paragraph 63DA(2)(c)

Repeal the paragraph.

26  Subsection 65DAA(5) (note 1)

Repeal the note.

27  Subsection 65DAA(5) (note 2)

Omit “Note 2:”, substitute “Note:”.

28  Paragraph 67A(c)

Repeal the paragraph, substitute:

                     (c)  the reporting of allegations of child abuse and family violence (Subdivision D); and

29  Subdivision D of Division 8 of Part VII (heading)

Repeal the heading, substitute:

Subdivision D Allegations of child abuse and family violence

30  Subsection 67Z(1)

Omit “a party to”, substitute “an interested person in”.

Note:       The heading the section 67Z is altered by omitting “ party to proceedings ” and substituting “ interested person ”.

31  Subsection 67Z(2)

Omit “party”, substitute “interested person”.

32  Subsection 67Z(4)

Insert:

interested person in proceedings under this Act, means:

                     (a)  a party to the proceedings; or

                     (b)  an independent children’s lawyer who represents the interests of a child in the proceedings; or

                     (c)  any other person prescribed by the regulations for the purposes of this paragraph.

33  At the end of subsection 67ZA(3)

Add:

Note:          The obligation under subsection (2) to notify a prescribed child welfare authority of a suspicion that a child has been abused or is at risk of being abused must be complied with, regardless of whether this subsection also applies to the same situation.

34  At the end of Subdivision D of Division 8 of Part VII

Add:

67ZBA   Where interested person makes allegation of family violence

             (1)  This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:

                     (a)  there has been family violence by one of the parties to the proceedings; or

                     (b)  there is a risk of family violence by one of the parties to the proceedings.

             (2)  The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b).

             (3)  If the alleged family violence (or risk of family violence) is abuse of a child (or a risk of abuse of a child):

                     (a)  the interested person making the allegation must either file and serve a notice under subsection (2) of this section or under subsection 67Z(2) (but does not have to file and serve a notice under both those subsections); and

                     (b)  if the notice is filed under subsection (2) of this section, the Registry Manager must deal with the notice as if it had been filed under subsection 67Z(2).

Note:          If an allegation of abuse of a child (or a risk of abuse of a child) relates to a person who is not a party to the proceedings, the notice must be filed in the court and served on the person in accordance with subsection 67Z(2).

             (4)  In this section:

interested person in proceedings for an order under this Part in relation to a child, means:

                     (a)  a party to the proceedings; or

                     (b)  an independent children’s lawyer who represents the interests of the child in the proceedings; or

                     (c)  any other person prescribed by the regulations for the purposes of this paragraph.

prescribed form means the form prescribed by the applicable Rules of Court.

Registry Manager has the same meaning as in section 67Z.

67ZBB   Court to take prompt action in relation to allegations of child abuse or family violence

             (1)  This section applies if:

                     (a)  a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and

                     (b)  the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:

                              (i)  there has been abuse of the child by one of the parties to the proceedings; or

                             (ii)  there would be a risk of abuse of the child if there were to be a delay in the proceedings; or

                            (iii)  there has been family violence by one of the parties to the proceedings; or

                            (iv)  there is a risk of family violence by one of the parties to the proceedings.

             (2)  The court must:

                     (a)  consider what interim or procedural orders (if any) should be made:

                              (i)  to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

                             (ii)  to protect the child or any of the parties to the proceedings; and

                     (b)  make such orders of that kind as the court considers appropriate; and

                     (c)  deal with the issues raised by the allegation as expeditiously as possible.

             (3)  The court must take the action required by paragraphs (2)(a) and (b):

                     (a)  as soon as practicable after the notice is filed; and

                     (b)  if it is appropriate having regard to the circumstances of the case—within 8 weeks after the notice is filed.

             (4)  Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain documents or information from State and Territory agencies in relation to the allegation.

             (5)  Without limiting subparagraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.

             (6)  A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.

35  Section 68N (note)

Repeal the note.

36  Subsection 69ZH(2)

Omit “Subdivision BA”, substitute “Subdivisions BA and BB”.

37  Paragraph 69ZN(5)(a)

Repeal the paragraph, substitute:

                     (a)  the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

38  Before paragraph 69ZQ(1)(a)

Insert:

                    (aa)  ask each party to the proceedings:

                              (i)  whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and

                             (ii)  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; and

39  At the end of subsection 91B(2)

Add:

Note:          If an officer intervenes in proceedings and acts in good faith in relation to the proceedings, an order for costs, or for security for costs, cannot be made under subsection 117(2) against the officer: see subsection 117(4A).

40  Subsection 117(1)

Omit “117AB,”.

41  Subsection 117(2)

Omit “and (5)”, substitute “, (4A) and (5)”.

42  After subsection 117(4)

Insert:

          (4A)  If:

                     (a)  under section 91B, an officer intervenes in proceedings; and

                     (b)  the officer acts in good faith in relation to the proceedings;

the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.

43  Section 117AB

Repeal the section.



 

Part 2 Application and transitional provisions

44  Definitions

In this Part:

commencement means the commencement of this Schedule.

old Act means the Family Law Act 1975 as in force immediately before commencement.

45  Amendments that apply to proceedings instituted on or after commencement

Subject to item 47, the amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings whether instituted before, on or after commencement.

46  Section 60K of old Act to continue to apply to certain documents

Despite the repeal of section 60K of the old Act by item 23 of this Schedule, that section continues to apply in relation to a document that was, before commencement, filed in a court in accordance with subsection 60K(1) of the old Act.

47  Amendments do not affect existing orders etc. or constitute changed circumstances

(1)       The amendments made by this Schedule do not affect an order made under the old Act before commencement, or a certificate given under subsection 60I(8) of the old Act before commencement.

(2)       The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.

Note:       For the need for changed circumstances, see Rice and Asplund (1979) FLC 90-725.

48  Transitional, application and savings—regulations

(1)       The Governor-General may make regulations dealing with matters of a transitional, application or savings nature relating to the amendments made by this Schedule.

(2)       Regulations made for the purposes of subitem (1) have effect despite anything else in this Part.