Recent reforms to family law are transforming how domestic and family violence is addressed in Court – offering stronger protections, steamlined processes and a renewed focus on survivor and child safety.
Domestic and Family Violence and the Federal Circuit and Family Court: A Focus on Recent Reforms
Family and domestic violence remains a critical issue within family law and society as a whole. The evolving landscape of family law practice, particularly through the Family Law Amendment Act (FLAA) 2023 and the expansion of the Lighthouse Project, reflects the frequency of parenting matters in the Court in which litigants identify violence and abuse including being subjected to coercive controlling behaviours.
These legislative changes to both the parenting provisions in the Family Law Act, reflects the need for better identification of the range of violence and abuse and the effect of coercive controlling behaviours as part of the legislative framework in addressing safety and risk in making parenting orders.
Key Legislative Changes
The FLAA 2023 which commenced on 6 May 2024, introduced new provisions to enhance the identification of risk in protecting children and others. These provisions include:
- Refinement of “Best Interests” Factors: The Family Law Act provisions for determining the best interests of the child were amended by repealing the former s 60CC, FLA and substituting a new s 60CC, FLAA. The revised list cut the previously lengthy enumeration down into the following six core factors:
- What arrangements would promote the safety (including safety from being subjected or exposed to family violence, abuse, neglect or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility of the child);
- Any views expressed by the child; children have a right to be heard in proceedings and this information is conveyed on their behalf;
- The developmental, psychological, emotional and cultural needs of the child;
- The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
- Any other relevant considerations
In addition, under the new s 60CC, the court emphasised consideration of:
- Any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
- Any family violence order that applies or has applied to the child or a member of the child’s family
Removal of Presumption of Equal Shared Responsibility
The FLAA 2023 also repealed the presumption of equal shared parental responsibility under s 61DA as well as the related equal time and substantial and significant time provisions in S65DAA.
This change reflected the recognition that many families misunderstood the presumption of equal shared parental responsibility, (related to decision making) to mean the right to shared care of the children thereby exposing children and family members to unsafe care arrangements in families subjected to domestic and family violence.
Now orders can be made for one parent to make all or some decisions for the children and that may or may not require that parent to consult with the other, in addition to making orders that both parents share decision making if appropriate.
Restrictions on Harmful Proceedings
The amendments also introduced a harmful proceeding provision by inserting a new Division 1B into Part XIB, FLAA. This allows for ‘harmful proceedings orders’ (HPOs) to protect parties and children from the effects of prolonged and vexatious litigation. This reflects to the need to protect parties from ‘systems’ abuse’ in which the perpetrator of family violence uses legal processes to cause further harm and distress. An HPO is aimed to prevent and minimise this.
The reforms also simplify and streamline the enforcement of parenting orders. The former definition of “reasonable excuse” for contravening a parenting order was repealed and replaced with a revised definition of “reasonable excuse for contravening a child-related order”. This updated definition, found in s 70NAD broadens the scope to include a defence based on a belief that the contravention was necessary to protect the health and safety of the individual, the child or others. This revision is aimed to reduce a parent being unable to withhold a child if at the time they form a reasonable view that for example it may be unsafe to do so at that time. The reform enables family violence or the need to protect health and safety as a defence to rely upon in answer to a contravention application.
Court Processes and Reforms
The Lighthouse Project, now operational nationwide, plays a crucial role in reshaping how domestic violence cases are managed. Key aspects of the Lighthouse Project include:
- Early Risk Screening and Triage: This initiative introduces a confidential risk-screening process for family law cases, ensuring that matters involving high-risk domestic violence are identified early and allocated appropriate case management pathways.
- Parties submitting an eligible Initiating Application or Response, seeking orders in relation to children, are invited to complete the Family DOORS Triage risk screen through a confidential and secure online platform. This screening aims to identify the likelihood of harm or exposure to a type of harm experienced by a party or child in family law proceedings. It considers a range of safety risks that frequently arise in family law proceedings including family violence, mental health issues, child abuse or neglect, and drug or alcohol misuse, among others.
- Specialist Case Management: A specialised team evaluates each case and assigns it to the most suitable case management pathway based on the identified risk level. This process helps identify individuals who may require additional support and protective measures, such as online referrals or direct interviews with those at greater risk.
- Cases classified as high-risk will be directed to the Evatt List, a specialist court list designed to support families facing significant concerns related to family violence and safety. This list prioritises early intervention and information gathering from the outset of legal proceedings.
- Cases with lower risk levels, on the other hand, will be assigned to appropriate case management pathways, including dispute resolution, in accordance with the Central Practice Direction: Family Law Case Management.
- Trauma-Informed Judicial Training: The Lighthouse Project team, comprised of Judges, Senior Judicial Registrars and Judicial Registrars, Triage/Family Counsellors and support personnel, is highly skilled and has specialised training and experience and detailed knowledge in working with families where high-risk safety issues have been identified. They receive ongoing training to enhance their understanding of domestic violence dynamics, improving the handling of cases with a survivor-centred approach.
- The court has published a guide identifying the nuances of family violence in its family violence best principles.
Practical Tips for Survivors
Given these legal advancements, survivors navigating the family court system should consider the following strategies to protect themselves and their children:
- Engage with domestic violence services: Seek support from organisations specialising including police, 1800 Respect and family and domestic violence and sexual violence counselling services
- Document evidence thoroughly: Maintain detailed records of abusive incidents, including messages, emails, financial control measures and medical reports, which can serve as critical evidence in Court.
- Utilise court resources: Leverage tools such as the Lighthouse Project’s risk-screening process and specialised case management pathways to ensure appropriate handling of high-risk cases.
- Be aware of your legal rights: Stay informed about recent legislative changes, including new protections under the FLA amendments, to effectively navigate court proceeding, including personal injury and common law claims such as tort and family law claims.
These recent reforms mark a pivotal shift in Australia’s family law framework, placing greater emphasis on survivor protection, child safety and judicial accountability in domestic violence cases. Through legislative advancements, the Lighthouse Project’s nationwide rollout and evolving judicial approaches, the family law system is moving toward a more responsive and trauma-informed model.
RAMSDEN FAMILY LAW – HOW CAN WE HELP
At Ramsden Family Law, we are committed to guiding survivors of domestic violence through the complexities of the family court system. With recent reforms like the Family Law Amendment Act 2023 and the Lighthouse Project, navigating legal proceedings has never been more focused on survivor safety and well-being.
Our experienced team understands the emotional and legal challenges you face. Whether you are dealing with family violence, child protection issues or complex custody matters, we offer compassionate, informed and practical legal support every step of the way.
If you or a loved one are facing family law issues involving domestic violence, now is the time to act. Reach out to us to discuss how we can help you secure a safer future for you and your family.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
