Family violence is now recognised as a significant problem in Australia, as demonstrated by Victoria’s recent Royal Commission. In particular, the number of family violence allegations during parenting cases is steadily growing, which can be seen in the Family Court of Australia’s 2014-2015 Annual Report.
Family violence is also an important factor to consider during parenting cases – when parties are applying to the court for parenting orders. This is a complicated topic, as family violence allegations may be made at any state during a parenting case.
The Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth) are the relevant pieces of legislation which cover family violence allegations during parenting cases. The court will also be guided by the Family Violence Best Practice Principles.
What is family violence?
Family violence is defined in section 4AB of the Family Law Act 1975. In 2011 the family violence definition was amended to include a wider range of abusive behaviours and the current definition only applies to proceedings commenced after 7 June 2012.
Under the Family Law 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.
The following examples are circumstances that will constitute family violence:
- Assault (including sexual assault or other sexually abusive behaviour);
- Making repeated derogatory taunts;
- Destroying or intentionally damaging property;
- Intentionally injuring or causing death to an animal; or
- Unlawfully depriving the family member, or any member of their family, of their liberty.
Financial and social control or coercion is another type of abusive behaviour included in the definition of family violence. A person may also commit family violence if they do any of the following:
- Unreasonably deny a family member the financial autonomy they would otherwise have had (for example, through controlling what the person spends or how they access their money);
- Unreasonably withhold financial support that a family member needs to meet their reasonable living expenses (or their child’s living expenses), at a time when the family member is dependent on the person for financial support; or
- Prevent the family member from making or keeping connections with their family, friends or culture.
This list is not exhaustive and other behaviours may fall under the family violence definition.
When does family violence apply?
The definition of family violence in section 4AB is used for proceedings under the Family Law Act 1975 but not when applying for State or Territory domestic violence orders.
For example, when the Federal Circuit Court is determining a child’s best interests in order to make a parenting order, the court may need to determine whether family violence has occurred. The court will then refer to the Family Law Act definition of family violence.
Each State and Territory will have its own definition of domestic or family violence which is used when State or Territory courts are making domestic violence orders.
Exposing children to family violence
The definition of abuse in section 4 of the Family Law Act 1975 also includes exposing children to family violence. Research has shown that family violence can have a damaging psychological impact on children who witness it, even if they are not the target themselves.
Section 4AB(3) explains that exposure includes seeing or hearing family violence, or otherwise experiencing the effects of family violence.
A child may be exposed to family violence if they:
- Overhear threats of death or personal injury, made by one member of the child’s family towards another family member;
- See or hear an assault on a member of the child’s family, inflicted by another member of the child’s family;
- Provide comfort or assistance to a member of the child’s family who was assaulted by another family member;
- Clean up a site after a member of the child’s family has intentionally destroyed or damaged property belonging to another family member; or
- Are present when ambulance or police officers attend an incident involving an assault on a member of the child’s family, committed by another family member.
This is not a definitive list of situations that may constitute exposing a child to family violence. Other incidents may fall within the definition, depending on the circumstances.
Compulsory mediation – exemption for family violence
The requirement for compulsory mediation will not apply if the court is satisfied that there are reasonable grounds to believe either of the following:
- Family violence has already been committed by a party to the proceedings; or
- There is a risk one of the parties may commit family violence.
If this exemption applies, the person must still receive information about other services or options (including alternatives to court action) that are available in circumstances involving family violence or child abuse. The court will not hear an application for parenting orders until the person confirms, in writing, that they have received this information from a family counsellor or FDR practitioner. This does not apply if there are reasonable grounds to believe one of the parties may commit family violence or child abuse (section 60J Family Law Act).
The court must still consider referring that person to family dispute resolution services, even if the family violence exemption applies (section 60I Family Law Act). In this situation, the person would then be required to attend family dispute resolution.
Section 60I also contains an exemption for cases involving child abuse or the risk of child abuse.
Allegations of family violence – notifying the court
The court must be notified if a parenting case involves allegations of family violence or child abuse.
Under section 67ZBA, an interested party in a parenting case must file a Notice if they allege:
- One of the parties to the proceedings has already committed family violence; or
- There is a risk family violence may be committed by one of the parties.
An interested party means one of the parties to the proceedings or the Independent Children’s Lawyer. Family law regulations can also extend the definition of interested party, so that it includes other people.
There are also compulsory notification requirements for allegations of child abuse, which are found in section 67Z of the Family Law Act 1975.
Court response following allegations of family violence
The court is required to take prompt action after a party has filed a Notice alleging that there has been family violence or child abuse, or that there is a risk of either occurring (section 67ZBB Family Law Act 1975).
The court must consider whether any interim or procedural orders should be made, to:
- Protect the child, or any of the parties, from abuse or family violence; and
- Obtain evidence about the allegations as quickly and efficiently as possible.
These orders should be made as soon as practicable after the Notice is filed and within eight weeks, if appropriate in the circumstances.
The court may also make orders to obtain documents relating to the allegations from any prescribed State or Territory agencies, such as child protection. These documents could include any notifications made to the agency about suspected child abuse or family violence affecting the child, or any investigations made by the agency after a notification.
Section 68B of the Family Law Act 1975 also allows the court to make injunctions protecting a person (such as a child or their parent). However, in practice, State and Territory domestic violence orders are usually used when a person requires protection.
Informing the court of state orders of family violence
The court must be informed of any State or Territory family violence orders which apply to a child or a member of the child’s family (section 60CF Family Law Act 1975).
If a party to the proceedings is aware of a family violence order, they must inform the court of that order. A person who is not party to the proceedings but is nevertheless aware that a family violence order applies, may inform the court of that order if they so choose.
However, a failure to inform the court of a relevant family violence order does not affect the validity of any order the court makes.
Parental responsibility and parenting orders
The presumption of equal shared parental responsibility will not apply if there are reasonable grounds to believe a parent, or a person who lives with the parent, has engaged in child abuse or family violence.
In these circumstances, the court is free to make any parenting orders which they believe will be in the child’s best interests. This could include orders that the child does not spend time with a parent who has committed family violence.
The court will consider many different factors when determining what orders to make, including the following:
- The effect of any abuse or family violence on the child;
- The effect of any abuse or family violence on a parent living with the child;
- Whether the parent who committed family violence acknowledges that it occurred;
- Any regret or remorse expressed by the perpetrator, and the extent to which they accept that the violence was inappropriate; and
- The nature of the relationship between the child and the perpetrator.
These are only some of the factors the court may consider. For a more detailed list, please refer to the Family Court’s Family Violence Best Practice Principles.
Court to consider risk of family violence when making orders
Under section 60CG of the Family Law Act 1975, the court must ensure, as much as possible, that parenting orders are consistent with any family violence orders and there is no unacceptable risk of family violence or abuse.
To determine if there is an ‘unacceptable risk’, the court may refer to principles from the case of M v M (1988) 166 CLR 69. Although this case is about child abuse, it can also be applied to family violence. The court will need to assess the magnitude and nature of any future risk of family violence and the harm that may result if it does occur.
The court may also include any safeguards that are necessary to protect people affected by the parenting order. For example, the order may specify that a parent’s contact with a child is to be supervised, or that parents are to have no contact at changeovers (or if they do, it is to be done in a safe, neutral location).
Interaction with State and Territory orders
In some cases, a parenting order may be inconsistent with a State or Territory family violence order. For example, the order might require the child to spend time with a particular person, even though that contact may be prohibited by a family violence order.
In this case, the parenting order will override the state or Territory family violence order to the extent that the parenting order requires or permits a person to have contact with the child (section 68Q of the Family Law Act 1975).
However, a court which makes an inconsistent parenting order must provide a detailed explanation of how the contact between the child and the other person is to take place.
A copy of the order must also be given to the following parties:
- The applicant and the respondent in the parenting case;
- The person protected by the family violence order; and
- The person who the family violence order was made against.
Within 14 days of the parenting order being made, the court must also send a copy of the order to the following:
- 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 State or Territory; and
- The registrar of the court which made the family violence order.
This is to ensure that all relevant authorities are aware that parts of the family violence order have been overridden.
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. This can only be done if:
- The State or Territory court is making or varying a family violence order; and
- The court has material before it that was not put before the court which made the parenting order; and
- The court is satisfied that varying or suspending the parenting order is appropriate because a person has been exposed, or is likely to be exposed, to family violence because of the parenting order.
This is a brief summary of the interaction with State and Territory family violence orders. Sections 68N to 68T of the Family Law Act 1975 provide more detail.