On White Ribbon Day, Partner Geoff Wilson and Associate Helen Davison explain how family violence impacts upon parenting matters under the Family Law Act (FLA). Unfortunately, separating families report the highest levels of family violence in the Australian community. Research conducted by the Australian Institute of Family Studies has revealed that allegations of family violence, child abuse, or both are made in 57% of parenting matters dealt with by the family law court, with that figure rising to 72% of the parenting cases that reached trial. For this reason, family violence can have significant implications in parenting matters.

What is family violence?

The definition of family violence is different than the definition of domestic violence under State legislation. Under section 4AB of the FLA, family violence is:

violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful.

Examples include repeated derogatory taunts, damaging or destroying property, causing death or injury to an animal and unreasonably denying the family member financial autonomy. 

How does family violence impact upon your ability to make long term decisions for your child?

Examples of situations that may constitute a child being exposed to family violence include the child:

  • overhearing threats of death or personal injury;
  • seeing or hearing an assault of a member of the child's family; or
  • comforting or providing assistance to a member of the child's family who has been assaulted.

There is a presumption that it is in the best interest of a child for both parents to have equal shared parental responsibility. This means that both parents must make joint decisions about major long term decisions about their child, such as decisions about the child’s education, health and religion. Based on the evidence, if a judge considers that there are reasonable grounds to believe that a parent has engaged in family violence or child abuse, then the presumption of equal shared parental responsibility is rebutted and may result in the other parent (the victim) receiving sole parental responsibility, in which one parent has the ability to make major long term decisions for their child without consulting the other parent.

How does family violence impact upon the amount of time you will spend with your child?

Under the FLA a judge must consider whether equal time or substantial and significant time (which constitutes weekday time and weekend time but being less than equal time) is in a child’s best interest. However, where the presumption of equal shared parental responsibility is rebutted, the court does not need to consider whether equal time or substantial and significant time is in the child’s best interest.  Instead, the court must make whatever order it thinks is in the best interest of the child.  

Does the benefit of a child having a relationship with both parents override the need to protect the child from family violence?

Between 2006 and 6 June 2012 the FLA contained a section dubbed the “friendly parent” provision.  The friendly parent provision meant that the court had to consider the extent to which a party facilitated the other party’s relationship with the child. This section was removed from the FLA on 7 June 2012, as many experts in the field complained that the section was a disincentive to disclose family violence due to the fear of appearing “unfriendly” and subsequently having negative findings made against the victim.

While the two primary considerations for determining the best interest of the child remain the benefit of the child having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm due to being subjected or exposed to, abuse, neglect or family violence, the FLA now makes it clear that the court is to give greater weight to family violence and child abuse provision.  Further, the court can also consider current and expired Domestic Violence Orders (DVOs) when determining the best interest of the child. 

Advice for victims of family violence

If you find yourself in a situation where either you or someone else is at risk of harm, you should call the Police and consider making a domestic violence application. There are a number of free community services who can assist with urgent accommodation, counselling and making domestic violence applications. Their details can be found here www.oneplace.org.au.

Usually, perpetrators will deny family violence or the extent of family violence. If you are, or have been a victim of family violence, it is important to take measures such as:

  • taking photographic evidence of the abuse and emailing it to a family member or friend in case it is discovered and deleted;
  • speaking to a counsellor, GP or domestic violence support service about the violence; or
  • keeping a diary with the dates and details of the violence. 

If you need to communicate with the perpetrator, it is best to do so in writing. 

It is important to remember that the safety of you and your child is paramount when entering into parenting arrangements. If you believe your child is at risk of being subjected to family violence, child abuse, or being exposed to either, then you should not be pressured into a parenting arrangement you believe does not adequately protect your child and should discuss your concerns with a lawyer. 

Advice for people who have been accused of perpetrating family violence

Towards the end of a relationship it is common for conflict between couples to be very intense. If there is such a conflict between you and your partner, or if your partner is or appears to be fearful of you, then we suggest limiting your interaction with each other. For example, communicate via email or text message, or by using communication books or communication apps like 2houses. Keep in mind, if your partner applies for a DVO or parenting order, your communication may be read by a judge.  You should also consider inviting a neutral person to attend changeovers of children or have changeovers in a public place. Where you have been unfairly accused of committing acts of domestic violence these steps may prevent future, baseless allegations.

If you would like help to change your behaviour there are a number of programs available which can also be found at www.oneplace.org.au.