TheFamily LawDomestic violence is defined in section 4AB of the 1975 Act and in 2011 the definition of domestic violence was amended to include a wider range of domestic violence, with the current definition applying to proceedings commenced after 7 June 2012 only.
根据《Family Law》，家庭暴力是指一个人胁迫或控制其家庭成员的暴力行为、威胁或其他行为，或令家庭成员害怕的行为。
联邦巡回及家事法院（Federal Circuit and Family Court of Australia）在确定孩子最大利益以作出抚养令（parenting order）时，法院可能需要确定是否该家庭存在家庭暴力的情况。此时，法院将参考《家庭法》中对家庭暴力的定义。
01 Family law Definition of domestic violence
When a child is exposed to violence by a family member, it can have a devastating psychological impact on the child who witnesses the domestic violence, even if the child is not himself or herself the subject of the domestic violence. The content of the Family Law Act 4ab (3) explains that a child's exposure to domestic violence includes seeing or hearing domestic violence, or otherwise experiencing the effects of domestic violence.
For example, children may be affected by domestic violence in the following situations:
- A child hears a family member threaten to kill or harm another family member.
- The child sees or hears a family member attacking another family member.
- A family member wilfully destroys or damages property belonging to other family members in the presence of a child;
- Children present when ambulance or police respond to an incident involving an assault on a family member by another family member, etc.
02 Family Law Definition of Domestic Violence
家庭暴力的出现将使儿童抚养问题不经调解直接进入法院诉讼程序 ，1975 《家庭法》第60I条通常要求当事人在申请抚养令前参加强制调解。但是，如果法院确信有合理的理由相信有下列情形发生，当事人可以不参加强制调解：
- One of the parties to the proceedings has committed domestic violence; or one of the parties is likely to commit domestic violence.
If this exemption applies, the parties must still receive information about other services or options (including alternatives to court proceedings) that are available in cases involving domestic violence or child abuse. The court will not hear an application for a maintenance order until both parties have confirmed in writing that they have been consulted by a family counsellor (Family counselor) or a Roosevelt practitioner. This does not apply if there are reasonable grounds to believe that one of the parties may be committing domestic violence or child abuse (Family Law Act, section 60J).
03 Family Law
Domestic violence must be reported to the court and the court must be notified if a child support case involves allegations of domestic violence or child abuse. Under section 67ZBA, the parties must file a notice with the court stating:
One of the parties to the proceedings has committed domestic violence; or one of them is likely to commit domestic violence.
A party is defined as a party in the proceedings or an independent children's lawyer. Family law regulations may also define parties to include others.
04 Family Law Court Treatment of Domestic Violence
Allegations of domestic violence in courts and tribunals require the court to take immediate action after a party has filed an application alleging that domestic violence or child abuse has occurred or that both are likely to occur. The court must consider whether any interim or procedural orders should be made to protect the child or any party from abuse or domestic violence while evidence of the allegation is obtained as quickly and efficiently as possible.
These orders should be made as soon as possible after submission and, if appropriate, within eight weeks.
The court may also make an order to obtain documents relating to the allegation from any designated national or regional agency, such as a child protection agency. These documents may include any notices sent to the agency of suspected child abuse or domestic violence affecting a child, or any investigations conducted by the agency following receipt of the notices.
05child support responsibilities and orders.
The presumption of equal sharing of responsibility for the upbringing of children will no longer apply where there are reasonable grounds to believe that a parent, or a person living with a parent, has committed child abuse or domestic violence. In such cases, the court is free to make whatever child support orders they consider to be in the best interests of the child. This may include ordering the child not to live with a parent who is experiencing domestic violence.
In deciding what order to make, the court will consider many different factors, including:
- The impact of any abuse or domestic violence on the child.
- The impact of any abuse or domestic violence on the parents living with the child.
- (c) Whether the parent who committed the domestic violence has admitted that the violence took place.
- Whether the perpetrator expresses regret or remorse, and the extent to which they consider the violence to be inappropriate;
- The nature of the relationship between the child and the abuser.
法院必须尽可能确保抚养令与任何家庭暴力令一致并且不存在“不可接受的“家庭暴力或虐待的风险。
06 Single Parenting Orders (SoleParentingOrders)
单独抚养令（SoleParentingOrders）最终抚养令（FinalParentingOrders）这是一项家庭法令，详细规定了一个或多个子女的抚养安排，有效期至子女18岁。最终的赡养令可以由法官在听取各方证据和意见后作出，也可以在各方同意的情况下作出，如果双方无法就分居后如何抚养子女达成协议，他们可能会要求法院裁决一些与子女有关的问题。在听取双方父母的意见后，法院将作出“抚养令”
Maintenance orders set out how responsibility for the upbringing of children is to be discharged after the parents have separated. It is important that both parents continue to have full parental responsibility for each child until the court explicitly changes that responsibility. While the court may recognise shared parental responsibility, this recognition does not mean that the amount of time the child spends with each parent is regulated.
The court will only make a separate maintenance order if it is satisfied that the presumption of equal sharing of responsibility for the children does not apply (e.g. if the domestic abuse described above occurs), i.e. it is not in the best interests of the children.
- 1. Those who are solely responsible for some or all of the children's affairs without consulting their ex-spouse about a special court order.
- 2. Provide for the child to live with only one parent;
- 3. Degree of contact with former spouse.
The order will not generally prohibit a parent from touching his or her child altogether, unless it can be shown that the child would be in danger if the parent were allowed to touch the child.
The court may issue a "supervised access" order even if a parent may pose a degree of danger to the child.
Maintenance orders can be modified on an "interim" basis or on a "final" basis on application to the Court. It should be noted that the Court is expressly directed by law not to take into account the terms of any interim order when making a final order.
Frequently asked questions
澳洲家庭法中的家庭暴力包括哪些行为？
依据《1975年家庭法》第4AB条，家庭暴力是指胁迫或控制家庭成员、或令家庭成员感到害怕的暴力行为、威胁或其他行为。儿童听到或目睹家庭成员之间的威胁、攻击或故意毁坏财产，也属于遭受家庭暴力。
有家庭暴力时，申请抚养令还必须先调解吗？
一般不必。申请育儿令前通常须先参加家庭争议解决，并取得第60I条证书；但如法院确信存在合理理由相信一方已实施或可能实施家庭暴力或虐待儿童，可豁免这一要求，直接进入法院程序。
在抚养权案件中提出家暴指控，需要办理什么手续？
如育儿案件涉及家庭暴力或虐待儿童的指控，当事人须依第67ZBA条向法院提交通知，说明一方已实施或可能实施家庭暴力。法院收到后须尽快考虑是否作出临时或程序性命令，以保护子女及相关当事人。
家庭暴力会怎样影响法院对孩子的安排？
法院以孩子的最大利益为首要考量，会考虑家庭暴力对孩子及与其同住的父母的影响、施暴一方的态度及其与孩子关系的性质，并尽可能确保抚养令与现有的家庭暴力令一致，不使孩子面临不可接受的风险。必要时法院可只允许监督下接触。
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