What is Family Violence?

Section 4AB of the Family Law Act 1975 defines 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 causes the family member to be fearful. 

It is likely that the Court would consider whether domestic violence is involved between the parties before making a parenting Order.  Apprehended Violence Orders and Domestic Violence Records would have an impact on the Court’s decision in making parenting Orders. 

It does not mean that domestic violence allegations and AVOs would be a determinative factor negatively applied in parenting disputes.  In making parenting Orders, the Court would assess the evidence relevant to the child’s welfare and be guided by the following factors:

a. Section 60B(1)(b) of the Family Law Act (‘the Act’) states that one of the objects is to ensure that the best interests of children are met by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

b. The Court also considers the primary considerations pursuant to section 60CC of the Act, which is the best interests of a child. Section 60CC(2)(b) also states that one of the Court’s primary consideration in making a decision would be the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) of the Act indicates that this consideration is to be given greater weight to the other considerations.

c. The legal presumption (under section 61DA of the Act) of equal shared parental responsibility will not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child of family violence.

d. Section 60CG of the Act provides that the Court must, to the extent that it is possible to do so, consistently with the child’s best interests being the paramount consideration, ensure that the Order is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence.

e. Section 43(1)(ca) of the Act reaffirms the importance of protecting the children from from family violence. 

The Court’s approach to treating Family Violence

When there is a history of family violence and there are legitimate domestic violence allegations, it will impact on the Court’s decisions in relation to who the child lives with, how much a child spends with the other parent and how parental responsibility will be allocated.

Jardine & Sackville [2020] FamCA 346

In this case, the parents were in a de facto relationship for 8 years and there were two children in their relationship. The mother moved out with the children after having been seriously assaulted by the father. There was an AVO in place to protect the mother and the children from the father for 2 years. The children had no contact with the father as a result of the AVO. The father commenced legal proceedings seeking for the children to live with him originally, but subsequently amended his application seeking that the children to live with the mother, to spend time with him, and both parents to have equal shared parental responsibility.

The father had a history of family violence as well as criminal convictions against the mother, the formal spouse, relatives and other people. The Court considered the history of family violence and the relevant evidence which was either conceded by the father or was indisputably established by independent records. The judgment indicated that there was “overwhelming” evidence as to the father’s history of violence. It was found that the father did pose a material risk of harm to the children.

The judge ruled that “there should be no enforced change to their current estrangement from the father” and found that even if supervision centre prevented the father physically harming the children, it could not prevent him psychologically harming the children. Therefore, the proposed supervision at a contact centre was not considered as an option.  

The Court ordered that the mother has sole parental responsibility, and the children continue to spend no time with the father and not to communicate with him. The Court also granted mother the liberty to make decision in relation to any contact between the children and the father after the AVO expires.

In addition, the Court noted that the children’s best interests remain the paramount consideration and their safety must always be prioritised over idealised family models.

Contact us

If you are affected by family violence or otherwise have concerns about family violence, it is important to know your options going forward by seeking expert legal advice. If you would like more information on how the Family Law Team at Genesis Edge can assist you, please do not hesitate to contact us on 1300 559 888, or fill out the enquiry form here.