This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Family violence is a huge issue throughout Australian society and the number of family violence allegations being made during family law proceedings is on the rise. Family violence is an important factor to consider in parenting cases as they may impact whether one or both parents are suitable caregivers for the children. How family violence allegations are to be handled during parenting matters is set out in the Family Law Act 1975 (Cth).
What is family violence?
Family violence is defined under section 4AB of the Family Law Act 1975 as 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes them to be fearful'.
The following are examples of behaviour that amounts to family violence:
Assault (including sexual assault and other sexual offences) of one partner by another;
Stalking an ex-partner;
Frequently making repeated derogatory taunts to a partner;
Destroying or intentionally damaging a partner or ex-partner's property;
Intentionally injuring or causing death to a family member's pet; or
Unlawfully depriving a person who is a family member of their liberty.
Financial and social control or coercion are also included in the definition of family violence. A person may also commit family violence if they:
Unreasonably deny a family member the financial autonomy they would otherwise have;
Unreasonably withhold financial support that a family member needs to meet their reasonable living expenses (or those of their child), at a time when they are financially dependent on the person; or
Prevent a family member from maintaining their connections with their family, friends or culture.
This list is not exhaustive and other behaviours may also fall under the definition of family violence.
When does the Family Law Act definition apply?
The definition of family violence contained in section 4AB of the Family Law Act is used for proceedings under the Family Law Act but not when applying for state or territory domestic violence orders. The states and territories have their own definitions of family violence that are used in matters involving restraining orders.
Exposing children to family violence
Section 4 of the Family Law Act 1975 defined the term 'abuse' as including the exposure of children to family violence. Section 4AB(3) explains that exposure to violence includes seeing or hearing family violence, or otherwise experiencing the effects of family violence.
Research has shown that family violence can damage children who witness this violence, even if they are not the victim. For this reason, family violence allegations must be taken very seriously.
A child may be exposed to family violence by:
Overhearing threats of harm made by one family member to another;
Seeing or hearing an assault on a family member, inflicted by another family member;
Providing comfort or assistance to a family member who was assaulted by another family member;
Cleaning up a site after a family member has intentionally destroyed or damaged property belonging to another family member; or
Being present when ambulance or police officers attend a family violence incident.
Other events may also fall within the definition, depending on the circumstances.
Exemption from compulsory mediation where family violence or child abuse
Section 60I of the Family Law Act 1975 requires parties to attend compulsory mediation with a family dispute resolution (FDR) practitioner to try to come to a mutually satisfactory resolution of their situation before applying to the court for parenting orders.
An exemption will be granted from the requirement for compulsory mediation if the court is satisfied that there are reasonable grounds for believing that:
Family violence or child abuse has already been committed by a party; or
There is a risk that a party may commit family violence or child abuse.
If this exemption applies, the person must still receive information about services or options other than court that are available in circumstances involving family violence or child abuse. The court will not hear a parenting application until the person confirms that they have received this information However, this requirement does not apply if there are reasonable grounds to believe there is a risk of further family violence or child abuse if ther eis a delay in applying for orders.
Where the family violence exemption applies, the court must still consider referring that family to family dispute resolution services. If this occurs the parties would then be required to attend family dispute resolution.
Notifying the court of family violence allegations
Parties to parenting matters must notify the court if there are any family violence allegations or child abuse. This is done in the form of a Notice of Risk form, which must be filed by the applicant along with their Application and by the respondent along with their Response. On the Notice of Risk form, a party must outline any risks of abuse of neglect that they are aware of towards any of the children involved in the matter.
There are also compulsory notification requirements for allegations of child abuse, which are found in section 67Z of the Family Law Act 1975.
Informing the court of family violence orders
Under section 60CF of the Family Law Act, the court must be informed of any family violence orders which apply to a child or a member of the child's family.
If a party to the proceedings is aware of the existence of a family violence order, they must inform the court of it. A person who is not party but is aware that a family violence order applies, may inform the court of the order if they choose to do so.
However, a failure by parties to inform the court of a relevant family violence order does not affect the validity of the order the court makes.
Parental responsibility and parenting orders
The presumption of equal shared parental responsibility will not apply where there are reasonable grounds to believe that a parent, or a person who lives with them, has engaged in child abuse or family violence.
In these circumstances, the court is free to make any parenting orders which it believes will be in the child's best interests. This could include an order that the child does not spend time with a parent who has committed family violence.
The court will consider many factors when determining what orders to make, including:
The effect of any abuse or violence on the child;
The effect of any abuse or violence on a parent living with the child;
Whether the parent who committed the violence acknowledges it;
Any regret or remorse of the perpetrator, and the extent to which they accept that their behaviour was inappropriate; and
The relationship between the child and the perpetrator.
For a more detailed list of the factors the court will consider please refer to the Family Court's Family Violence Best Practice Principles.
Court to consider risk of family violence when making orders
The court must ensure, as far as possible, that parenting orders are consistent with any family violence orders and that there is no unacceptable risk posed by the arrangements that the orders set in place.
To determine whether there is an 'unacceptable risk' of violence, the court may refer to principles from the 1988 decision of M v M (1988) 166 CLR 69. Although this case dealt with child abuse, its principles can also be applied to family violence. The court will need to assess the extent and nature of any future risk of family violence and the harm that may result from it..
The court may also include safeguards to protect people affected by the parenting order. For example, the order may specify that a parent is only to have supervised contact with a child, or that parents are not to have contact at changeovers.
Interaction with State and Territory orders
A parenting order may be inconsistent with a family violence order. For example, the order may require the child to spend time with a person, even though that contact may be prohibited under a family violence order.
When this happens, the parenting order will override the family violence order to the extent that the parenting order involves a person having contact with a child.
However, a court which makes a parenting order that is inconsistent with a family violence order must provide a detailed explanation of how the contact with the child is to take place.
A copy of the order must also be given to:
The applicant and the respondent;
The person protected by the family violence order; and
The person who the family violence order was made against.
Within 14 days of the order being made, the court must send a copy of the order to:
The head of the police force in the State or Territory where the person protected by the family violence order lives;
A child welfare officer in the relevant jurisdiction; and
The registrar of the court that made the family violence order.
This is to ensure that all relevant authorities are aware that some parts of the family violence order have been overridden by a parenting order.
State and territory courts can also vary, suspend or discharge a parenting order, to the extent that the order provides for the child to spend time with a person if:
The court is making or varying a family violence order; and
The court has material before it that was not put before the court that made the parenting order; and
The court is satisfied that varying or suspending the order is appropriate because a person has been exposed, or is likely to be exposed, to violence because of the order.
If you require legal advice or representation in relation to family violence allegations or in any other legal matter, please contact Armstrong Legal.
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