09 Oct Family violence in Family Law cases

Family Violence in Family Law cases

When it comes to family violence, the Court takes these allegations seriously. When making parenting orders, the Court will consider the best interests of the child. The Family Law Act prioritises the safety of children in parenting matters by giving higher priority to the protection of children from harm when determining what is in their best interests.  Let’s explore this in more detail.

What is Family Violence?

The term ‘family violence’ is used to describe violent or threatening behaviour by a person inflicted on a family member. In 2011, the definition of family violence in the Family Law Act was expanded to incorporate notions of intimidation and control (which are not always accompanied by physical violence or threats).

The Family Law Act contains a range of provisions designed to protect parties and children from family violence. The Courts recognise that there is a close connection between family breakdown and violence, and the negative impact on both adult victims and children living with family violence.

Ensuring the safety of all people involved in the family law system, including when attending Court, is a high priority for the Courts.

Family Violence Order

A family violence order is an order made under a prescribed law of a state or territory to protect a person from family violence. Such orders may forbid one party from coming within a set distance of another party or stalking or harassing them.

While they are always described as family violence orders, these orders are called different things in different states such as:

• Protection Orders (QLD)
• Apprehended Domestic Violence Order (NSW)
• Intervention Orders (VIC & SA)
• Violence Restraining Orders (WA)
• Family Violence Order (TAS)
• Domestic Violence Order (ACT & NT).

Sometimes the Family Court or Federal Circuit Court will make a family law parenting order or an injunction that is not consistent with the state or territory order. If needed the family violence orders can still allow parties to meet each other for a few reasons such as:

• delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or
• enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings.

When Children are Involved

Children can sometimes be included on family violence orders made for a parent but there are also child protection orders which are different to family violence orders. These orders are made by a state Children’s Court when it is believed that a child needs protection.

Examples of Family Violence

The Family Law Act recognises that family and domestic violence take many forms. These can be physical, sexual, emotional, or psychological and even financial. The courts have adopted this description of the elements of violence:

Some examples of behaviour that can be classified as family violence include:

• an assault; or
• a 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
• unreasonably denying the family member the financials 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; or
• unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.

Common forms of violence in families include:

• spouse/partner abuse (violence among adult partners and ex-partners)
• child abuse/neglect (abuse/neglect of children by an adult)
• parental abuse (violence perpetrated by a child against their parent), and
• sibling abuse (violence between siblings).

Family violence can affect not only a person’s safety, but also:

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

An experienced family lawyer or family law specialist can guide you through the principles that the Family Law Courts use to decide what happens in parenting disputes where there has been family violence.

We’re here to help with parenting disputes and family violence orders  – contact us today to take advantage of our legal consults – no obligation and completely confidential. They can be done in person or via Skype or telephone conference. 

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