Family Law Legislation

Family Law in Australia experienced further significant change with the introduction of the Family Law Legislation Amendment (Family Violence and Other Matters) Act 2011 (the Family Violence Act) which came into effect on 7 June 2012. Essentially the intention of the new amendments is to provide better protection for children and families at risk of family violence and abuse.

The Family Violence Act is part of the Government’s plan to improve the family law system’s response to family violence and abuse by sending a clear message that family violence and child abuse are unacceptable. The key changes made by the family violence amendments:

  • Remove deterrents to disclose family violence to the courts;
  • Update the definitions of family violence and child abuse to clearly set out what type of behaviour is unacceptable – such as physical and emotional abuse and the exposure of children to family violence;
  • and Ensure appropriate action is taken to prioritise the safety of children in family law disputes.

These changes will put the safety of children front and centre in family law matters, without compromising a child’s right to a meaningful relationship with both parents where this is safe. You can view the new family law violence amendments here.

The Family Violence Act does not ‘roll back’ the 2006 shared parenting reforms. Parenting arrangements will continue to be made in a way that promotes a child’s right to have a meaningful relationship with both parents where this is safe.

The Family Violence Act will not have any influence for separating families where there is no family violence or child abuse concerns. For cases where there is no risk of family violence or abuse and it is in the child’s best interests, the courts will continue to apply the presumption of equal shared parental responsibility and consider equal time or, as the case requires, substantial and significant time.

Prior to the family law violence amendments in 2012, family law in Australia underwent significant reform with the 2006 and 2008 amendments. The 2006 amendments shifted the focus towards joint parental responsibility for children and the associated practical involvement in their lives; the new provisions of the Family Law Act 1975 do not change the principle that the best interests of the child remain the paramount consideration.

The 2006 family law amendments introduced:-

  • Compulsory mediation before Court proceedings can be filed, in an effort to resolve matters so that litigation does not become necessary;
  • Greater review of issues involving family violence, child abuse or neglect;
  • Extra significance being placed on a child's family and social connections;
  • A presumption that parents have equal parental responsibility - NOT equal parenting time;
  • and An emphasis for both parents to remain meaningfully involved in their children's lives following separation, provided there is no risk of violence or abuse.

The 2008 revisions changed the way the rights of separating de facto couples (including same sex couples) were dealt with. These amendments gave de facto couples the same rights as divorcing couples in relation to their relationship and its property under the Commonwealth Family Law Act 1975. Prior to this, de facto relationships were legislated by each state and territory individually. For the Family Law Act to apply to de facto relationships each state and territory was required to refer their power to the Commonwealth. Currently, all states and territories in Australia except Western Australia have referred their power to the Commonwealth. In Western Australia, much of the Family Court Act 1997 (WA) mirrors the Family Law Act 1975. To read more about the division of property visit the page titled family law property settlement on our website.