The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) take family violence very seriously.

Part 1: Legislation and Definition of Family Violence
Part 2: Principles Guiding Family Law Decisions
Part 3: Children and Family Violence
Part 4: Notifying the Family Court about Violence
Part 5: Parenting Orders and Intervention Orders – What are they?

Part 1: Legislation and Definition of Family Violence

Legislation: Family Law Act 1975 (Cth) (hereinafter ‘the Act’)

Definition of Family Violence

Section 4AB of the Act, describes family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or cause the family member to be frightened.

Examples of behaviours that may constitute family violence include (but are not limited to):

  • assault (including sexual assault or other sexually abusive behaviour), or
  • stalking, or
  • repeated derogatory taunts, or
  • intentionally damaging or destroying property, or
  • intentionally causing death or injury to an animal, or
  • unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty
  • coercion – forcing someone to do something they do not want to do – this does not have to be accompanied by physical violence
  • controlling a person’s activities, so that cannot make any decisions about what they do – this does not have to be accompanied by physical violence
  • unreasonably denying the family member the financial autonomy that he or she would otherwise have had, or
  • unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or
  • predominantly dependent on the person for financial support, or
  • preventing the family member from making or keeping connections with his or her family, friends or culture.

Studies show the impact of living with family violence can cause short or long term physical and emotional trauma to children, young people and adults. Not only does family violence, or the threat of family violence, affect a person’s safety, create fear and disrupt family units, it can also affect a person’s:

  • readiness to take action in a family law matter
  • willingness to come to the Courts
  • ability to participate in court events, and/or
  • ability to achieve settlement of their dispute through negotiation.

Part 2: Principles Guiding Family Law Decisions

Principles Guiding Court Decisions: Best Interests of the Child – section 60CC

The Courts when dealing with family violence, is guided by what is in the best interests of the child.

When a court makes a parenting order, the Family Law Act requires it to regard the best interests of the child as the most important consideration. Parents are encouraged to use this principle when making parenting plans.

The Family Law Act focuses on the rights of children and the responsibilities that each parent has towards their children, rather than on parental rights. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents, and are protected from harm.

The Family Law Act makes clear that:

  • both parents are responsible for the care and welfare of their children until the children reach 18, and
  • there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

The Court is also guided by the view that:

  • Safety is a right and a priority for all who attend and work at the Courts.
  • Family violence affects everyone in a family, including children.
  • Family violence can occur before, during and after separation and it may affect the ability of people to make choices about their family law matter and to take part in court events.
  • The Courts have a particular concern about the immediate and possible longer term adverse impacts on children who experience or witness family violence.
  • Even if children do not directly witness the violence, they are often very aware of it.

Part 3: Children and Family Violence

Children and Family Violence: Section 4(1) of the Act

The protection of children is the paramount consideration of the Act. It contains a range of provisions designed to protect parties and children from family violence. Section 4(1) of the Act states that abuse, in relation to a child, means:

• an assault, including a sexual assault, of the child, or

• a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is an unequal power in the relationship between the child and the first person, or

• causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence, or

• serious neglect of the child.

Family violence between parents is traumatic for children and can have long lasting effects. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence

Examples of situations that may constitute a child being exposed to family violence include (but are not limited to):

• overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family, or

• seeing or hearing an assault of a member of the child’s family by another member of the child’s family, or

• comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family, or

• cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family, or

• being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Extensive research confirms the devastating impact family violence can have on children’s lives and their physical and emotional development. Family violence can affect children in many ways.

How does Violence Affect Children? 26 Sep 2003 – pandora.nla.gov.au/pan/34659/20030410/issuespaper2.pdf – Trove

Research tells us that violence affects children and causes them to experience emotional and psychological trauma, as well as behavioural problems. It can affect their schooling and social lives and can lead to psychiatric illness – depression and anxiety. Children of different ages show their trauma in different ways.

Part 4: Notifying the Family Court about Violence

NOTIFYING THE COURT OF AUSTRALIA ABOUT FAMILY VIOLENCE

The Notice of child abuse, family violence or risk is a mandatory form for any person who files an Initiating Application or Response in the Family Court or Federal Circuit Court seeking parenting orders from 31 October 2020.

It is also the prescribed notice when allegations for the purposes of subsections 67Z(2) or 67ZBA(2) of the Family Law Act 1975 are raised.

Sections 67ZBB and 67ZBA(2)-(3)

Under section 67ZBB prompt action by the Court is required in relation to allegations of child abuse or family violence. Considerations must be made to:

• determine what interim or procedural orders (if any) should be made to protect the child or any of the parties to the proceedings, and

• obtain evidence about the allegation as expeditiously as possible.

The Courts must take action as soon as practicable after the notice is filed, and within eight weeks if appropriate to the circumstances – section 67ZAB(3).

If an interested party to the proceeding answered ‘yes’ to question 6 and/or 13e of the Notice of child abuse, family violence or risk, the prescribed child welfare authority must be provided a copy of the form by the Registry Manager who may provide such other court documents and information as is required to enable investigation of the contents of the Notice – section 67Z(2).

If there are allegations of family violence, child abuse or risk of family violence, the Court may make orders to obtain documents or information from state and territory agencies in relation to the allegations (69ZW). This could include documents pertaining to notifications made to child protection/state or territory agencies regarding suspected child abuse or family violence affecting the child, or other investigations made by the agency following the notification.

Section 68 of the Act

Under section 68B, the Court can make orders or grant injunctions as it considers appropriate for the welfare of the child.

Section 60CF of the Act

Section 60CF states that if a party to the proceedings, or a person who is not a party to the proceeding, is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the Court of the family violence order.

Part 5: Parenting Orders and Intervention Orders – What are they?

Parenting Orders of the Family Court v Family Orders made by Magistrates Court of South Australia

The Family Court of Australia and the Federal Circuit Court of Australia have federal jurisdiction and are responsible for making parenting orders, whereas family violence orders are general made by the prescribed law of a state or territory.

What is a parenting order? Parenting orders – what you need to know | Attorney-General’s Department (ag.gov.au)

A parenting order is a set of orders made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (consent orders) or after a court hearing or trial. When a parenting order is made, each person affected by the order must follow it.

A parenting order may deal with one or more of the following:

  • who the child will live with
  • how much time the child will spend with each parent and with other people, such as grandparents
  • the allocation of parental responsibility
  • how the child will communicate with a parent they do not live with, or other people
  • any other aspect of the care, welfare or development of the child.

What is an Intervention Order?

An Intervention Order is a court Order against a person who makes you fear for your safety, to protect you from further violence, intimidation or harassment. The person you fear (known as the defendant) must obey the Order made by the court. An Intervention Order prohibits the defendant from assaulting, harassing, threatening, stalking, or intimidating you. An Order can be made against anyone you fear including a spouse, a relative, a neighbour or someone with whom you have had an intimate relationship. If you fear for your children’s safety, you can include them in your application.

How to apply for an Intervention Order

If you have been assaulted, threatened or have had property damaged, call the Police or go to a Police station to make a report. The Police have the power to issue an interim (temporary) Intervention Order if the defendant is present or in custody. An Intervention Order starts once the Police hand it to the defendant.

Before you make a report, make a list of the things that have made you fear the person or feel unsafe. Try to include details of when and where these things happened and if there were any witnesses. It is helpful to have a written statement prepared beforehand.

Your statement should include details about:

  • Your relationship with the other person
  • If you have children, their names and age
  • If the children witnessed the abuse or have been abused themselves
  • If there are any drug, alcohol or mental health issues
  • If the other person has access to a weapon
  • Details of physical violence, threats, intimidation, stalking, property damage or dangerous driving
  • Any harassing phone calls, texts, Facebook posts or emails. Where possible, show these to the Police.
  • Whether any other people close to you have also been threatened or have reason to be scared
  • Copies of any Family Court Orders or Child Protection Orders

The Police may also decide to lay criminal charges against the defendant after hearing your story. Only the Police can do this – you cannot lay or withdraw charges.

All decisions of the Commonwealth override decisions made by states or territories. Parenting orders that have been made by the Family Court or the Federal Circuit Court will supersede inconsistent obligations of a state or territory based family violence order. In South Australia a person who is the victim of family violence can obtain an Intervention Order – Restraining Order/Apprehended Violence Order – in the Magistrates Court pursuant to the Intervention Orders (Prevention of Abuse) Act 2009. SA Police can assist with this.

CHILDREN CAN ALSO BE INCLUDED IN INTERVENTION ORDERS.

Disclaimer:

THIS INFORMATION IS NOT A SUBSTITUTE FOR INDEPENDENT LEGAL ADVICE AND SHOULD NOT BE RELIED UPON WITHOUT HAVING OBTAINED ADVICE FROM A LAWYER

Follow-up Programme due to public enquiries:

There will be further discussion on domestic violence. The focus will be on the types of reports the Court can order to inform itself about the needs of the children – Family Report, The role of the Family Consultant, Child Inclusive Reports, Appointment of an Independent Children’s Lawyer etc.