Family Violence in Family Law Parenting Matters

Gone are the days when family violence was treated as a private matter between family members. Society is now increasingly more accepting that protection from harm is a responsibility of the Government. There have been a number of changes to legislation at both State and Commonwealth levels to reflect these changed social views. Protection of children from harm is now a paramount consideration of the Court in Family Law parenting matters and the definition of family violence found in the Family Law Act has been broadened to include a number of different behaviours that were not previously included.

In 2011, the Family Law Act was amended to include a broader definition for family violence and child abuse. The new definition of family violence is found within Section 4AB of the Family Law Act. Family violence is now defined as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or violent, threatening or other behaviour that causes the family member to be fearful. Examples of family violence include but are not limited to assault, sexual assault, repeated derogatory taunts, intentionally causing death or injury to an animal, and unlawfully depriving a family member of his or her liberty.

The definition of family violence within the Act now also includes circumstances when a child sees or hears family violence or otherwise experiences the effects of family violence. Section 4AB(4) sets out further examples of family violence, being when a child overhears threats of death or personal injury between family members, when a child sees or hears an assault between family members, when a child comforts or provides assistance if a family member has been assaulted by another family member and when a child cleans up a site after intentional damage to property and when a child is present when an ambulance or police officers attend an incident following an assault of a family member by another family member. The definition of child abuse within the Act has also been expanded to include causing the child to suffer psychological harm or serious neglect.

Australia is party to a number of international treaties that are relevant to family violence including:

• The International Covenant on Child and Political Rights (ICCPR);
• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); and
• The United Nations Convention on the Rights of the Child (CROC).

It is notable that the Family Law Courts have power under Sections 114 and 90SS of the Family Law Act to make Orders for an injunction for the personal protection of a party to a marriage or a party to a de facto relationship. However, injunctions are not regularly used as they can be expensive to obtain, there is often a delay and they are difficult to enforce. A Protection Order under State and Territory legislation is a quicker and cheaper option for victims of violence. The legislation in New South Wales that governs such Orders is the Crimes (Domestic and Personal Violence) Act 2007 (NSW). A Protection Order (otherwise known as an Apprehended Violence Order or Restraining Order) can be quickly obtained where a Court is satisfied on the balance of probabilities that an Order is needed. Such Orders can restrain a wide range of conduct and breach of such Orders is a criminal offence.

When the Court makes Parenting Orders, the child’s best interests are the paramount consideration for the Court. Section 60CC of the Family Law Act sets out what the Court must consider when deciding what is in the best interests of the children involved. The section provides that the primary considerations of the Court are the benefit of the child having a meaningful relationship with both of their parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court is required to give greater consideration to the protection of the child from harm.

Section 60CC of the Family Law Act also provides that the Court must have regard to a list of additional considerations which include any family violence involving the child or a member of the child’s family and the nature, circumstances, evidence, findings or any other relevant matters where a family violence order applies or has applied to the child or a member of the child’s family. Parties are also required under Section 60CF to inform the Court of any relevant Family Violence Orders if known by the parties.

Our lawyers in the Kells Family Law Team have experience in dealing with parenting matters involving family violence. We know how the law in this area operates and can provide advice on how to move forward where there have been allegations of family violence or child abuse.