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.
According to the Family Law, domestic violence is an act of violence, threat or other behaviour by a person that coerces or controls a member of his/her family, or that puts a member of the family in fear.
When the Federal Circuit Court determines the best interests of a child for the purpose of making a parenting order, the court may need to determine whether there is domestic violence in the home. In doing so, the court will look to the definition of domestic violence in the Family Law Act.
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
The emergence of domestic violence will result in child maintenance issues going straight to court proceedings without mediation, and section 60I of the Family Law Act 1975 generally requires parties to attend mandatory mediation before applying for a maintenance order. However, a party may not attend compulsory conciliation if the court is satisfied that there are reasonable grounds for believing that the following circumstances have occurred:
- 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.
The court must ensure, as far as possible, that the maintenance order is consistent with any domestic violence order and that there is no risk of "unacceptable" domestic violence or abuse.
06 Single Parenting Orders (SoleParentingOrders)
SoleParentingOrders FinalParentingOrders are family orders that detail the parenting arrangements for one or more children and are valid until the child is 18 years old. Final Parenting Orders can be made by a Judge after hearing evidence and submissions from all parties, or they can be made with the consent of all parties, and if the parties are unable to reach an agreement on how to bring up their children after separation they may ask the Family Court to adjudicate on a number of issues relating to the children. After hearing both parents, the Family Court of Australia will make a "maintenance order".
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.
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