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Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 The need to protect children from physical or psychological harm from being.

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Presentation on theme: "Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 The need to protect children from physical or psychological harm from being."— Presentation transcript:

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 than RELATIONSHIP

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of relationship (with parents and others) Willingness of parent to facilitate relationship (“Friendly Parent Clause’ Repealed by Amendment) Extent to which parent has: (Inserted by amendment) Participated in decisions Spent time with the child Communicated with the child Maintained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 child (C) Denise Sullivan 2012

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?

8 Harm Arising from Conflict after Separation (C) Denise Sullivan 2012 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

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” “de facto relationship” “relative” (including extended family) “ordinarily resides or resided with” (C) Denise Sullivan 2012

18 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 Family Violence means:

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

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

21 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 Unreasonably denying a family member the financial autonomy that he or she would otherwise have had; or

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

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 ambulance attend 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

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 MAY NOTIFY 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

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