Family Violence and Parenting Orders in Australia

The statutory definition of family violence

Section 4AB of the Family Law Act 1975 (Cth) defines family violence as violent, threatening or other behaviour by a person that coerces or controls a family member, or causes the family member to be fearful. It includes physical assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, intentional injury to an animal, unreasonably denying financial autonomy or unreasonably withholding financial support that is reasonably necessary, and preventing a family member from making or keeping connections with family, friends or culture. A child is exposed to family violence if the child sees or hears family violence, or otherwise experiences its effects.

Family violence in the Act is not confined to conduct that is a criminal offence, and it is not confined to physical harm. The definition is intentionally broad because the statutory purpose is to identify behaviour that affects safety, wellbeing and the ability of a family member (or a child exposed to that behaviour) to function without fear or coercion.

Best interests: the paramount consideration

Under section 60CA the child's best interests are the paramount consideration for parenting orders. Section 60CC lists the matters the Court must consider. In the current version of the section, the required considerations include: what arrangements would promote the safety of the child and of each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or is proposed to have care of the child to provide for those needs; the benefit to the child of being able to have a relationship with the child's parents and other people significant to the child where it is safe to do so; and anything else that is relevant to the particular circumstances of the child.

Section 60CC(2A) requires the Court to consider any history of family violence, abuse or neglect involving the child or a person having care of the child, and any family violence order that applies or has applied to the child or a member of the child's family. Sections 60CG and related provisions require the Court to ensure, so far as is possible, that any parenting order does not expose a person to an unacceptable risk of family violence.

Parental responsibility for major long-term issues

Sections 61CA to 61DA of the Family Law Act 1975 (Cth) provide the current framework for parental responsibility. Each parent has parental responsibility for the child subject to any court order, and parents are encouraged, but not required by any statutory presumption, to consult with each other about major long-term issues. The Court's task is to decide, on the evidence, what allocation of responsibility for major long-term issues will promote the child's best interests. Depending on the case, that may mean allocating responsibility for all major long-term issues to one person, allocating responsibility to more than one person to be exercised jointly, or making issue-specific orders (for example, on education, health or religion) that reflect the particular circumstances.

Where parental responsibility for a specific issue is allocated jointly, the parties are ordinarily expected to consult and to make a genuine effort to reach agreement. Where genuine consultation is not safe or practicable — for example, because of a history of family violence — the Court may allocate responsibility for particular issues, or all issues, to one person to avoid protracted conflict and to protect the child and each carer.

Time and communication

Decisions about the time a child spends with each parent and the communication the child has with each parent are made by reference to section 60CA and the section 60CC factors. Where the evidence supports it, the Court may make orders for time that is graduated (for example, increasing over time on conditions), for supervised time in the community or in an approved children's contact service, for limited time on defined conditions, for no time at all, and for restricted or no communication. Any arrangement made by consent is scrutinised against the best-interests framework; the Court is not bound to make consent orders that it is not satisfied are in the child's best interests.

Where family violence is alleged or found, orders for time and communication are shaped so that, so far as is possible, no person is exposed to an unacceptable risk of family violence. That may involve provisions about the location and time of changeover, prohibitions on communication about matters other than the child, the use of a communication book, the presence of a third party at changeover, or supervision by an approved provider. The precise conditions turn on the evidence and on the child's circumstances.

The Notice of Child Abuse, Family Violence or Risk

The Notice of Child Abuse, Family Violence or Risk — the "Notice of Risk" — must be filed with an Initiating Application, Response or Application for Consent Orders where parenting orders are sought. The requirement is explained in the FCFCOA's current guidance on notices and safety and risk. The Notice requires the party to disclose allegations of family violence and abuse, known risks and any relevant orders. Accurate and complete disclosure at the earliest stage assists the Court to consider safety and to make appropriate procedural directions. Deliberate non-disclosure or misleading disclosure can affect both the proceedings and any related state or territory processes.

Family dispute resolution and its exceptions

Section 60I generally requires parties to make a genuine effort to resolve their parenting dispute through family dispute resolution before an application for parenting orders is filed. Statutory exceptions apply, including where the Court is satisfied that there are reasonable grounds to believe there has been child abuse or family violence by a party, or there is a risk of family violence by a party, or the application is urgent, or a party is unable to participate effectively. The exceptions are not automatic: they are assessed on the evidence and, in some cases, by reference to a section 60I certificate issued by a family dispute resolution practitioner. A history or allegation of family violence does not exempt every case from section 60I; whether an exception applies is a question of evidence and fit with the statutory requirements.

Allegations, evidence and findings

Allegations of family violence are not automatically findings. The Court is required to accord procedural fairness, to give parties an opportunity to respond, and to weigh the evidence. Interim parenting orders and final parenting orders serve different functions. Interim orders are directed to managing risk and providing appropriate arrangements for the child pending final hearing; they are made on a limited evidentiary base, on affidavits and short hearings. Final orders are made after hearing the evidence at trial, and findings on contested issues are made in accordance with the applicable rules and standards.

Depending on the case, the Court may order a family report, appoint an independent children's lawyer to represent the child's interests, or hear expert evidence about the child's needs, risks or the impact of family violence. The weight given to any particular piece of evidence turns on the whole of the material, not on the source of the evidence considered in isolation. The rules for evidence given in family-violence contexts include specific protections in some circumstances; those provisions and the applicable rules are considered by the Court on the material before it.

Interaction with state and territory family-violence orders

Sections 68P to 68T of the Family Law Act deal with the interaction between family-violence orders made by state and territory courts and parenting orders made under the Family Law Act. When a court making a family-violence order makes provision that is inconsistent with an existing parenting order, the Court must give reasons and specify the terms of any inconsistency. Neither type of order casually overrides the other; the interaction turns on the terms of each order and on the specific statutory provisions.

Where inconsistent orders are in force, or a family-violence order affects a parent's ability to spend time with or communicate with a child under an existing parenting order, an application to vary the parenting order, or to seek clarification of the family-violence order, may be appropriate. The specific pathway depends on the terms of the orders and on the current statutory provisions. Related information appears in our companion articles on family violence intervention orders in Victoria and on parenting orders in the Family Court.

Urgent applications, recovery and relocation

Where safety concerns are immediate, an urgent application can be made to the FCFCOA for interim parenting orders and, in appropriate cases, without notice to the other party. Urgency is fact-specific and requires clear evidence of the risk sought to be addressed. Recovery orders can be sought where a child has been removed from a person with whom the child has been living, or is being kept away from that person, in circumstances the Court considers require the child's return. Relocation applications — proposals to move the child's residence in a way that materially affects the child's relationship with the other parent — are decided by reference to the same best-interests framework.

Contravention and enforcement

Where a party is alleged to have contravened a parenting order without reasonable excuse, an application can be made under Division 13A of Part VII of the Family Law Act. The remedies available depend on the nature and seriousness of the contravention and on any prior contraventions, and range from adjustments to the arrangements through to more serious consequences. See our companion article on contravention of parenting orders for the statutory scheme. Unilateral non-compliance is not advised; where safety concerns require immediate action, an urgent variation application, and where appropriate resort to a court exercising family-violence jurisdiction, is generally preferable to breaching the order.

Confidentiality, address protection and records

The Family Law Act contains provisions restricting the publication of information identifying parties and children in family-law proceedings. Address for service and, in appropriate cases, address confidentiality can be addressed through the procedural rules. Records held by police, treating practitioners, schools and other agencies may become relevant to safety and best-interests decisions. Whether, when and how such records are sought and adduced is a matter for the Court and for the parties' legal representatives.

Criminal charges, intervention orders and family-law proceedings

Civil family-violence intervention-order proceedings, criminal charges arising from family violence and parenting proceedings in the FCFCOA are distinct processes with different tests, standards of proof and outcomes. Findings or the absence of findings in one process do not determine another, although evidence given and orders made in one process may be relevant to another. Coordinating those processes appropriately can be an important part of representation in this area.

Family reports and independent children's lawyers

The Court can order a family report under section 62G of the Family Law Act 1975 (Cth). A family report is prepared by a court child expert or, where directed, by a private single expert. The report writer interviews the parties and, where appropriate, the child and other relevant persons, and reports to the Court on matters relevant to the child's best interests. The report is evidence in the proceedings and is subject to the same rules as any other evidence. The weight the Court gives the report depends on the material considered, the reasoning disclosed and the balance of the evidence.

An Independent Children's Lawyer (ICL) may be appointed under section 68L to represent the child's best interests. The ICL is not the child's legal representative in the ordinary solicitor-client sense; the ICL forms an independent view of the child's best interests on the evidence and advances that view in the proceedings. Section 68LA(5A) generally requires the ICL to meet with the child and provide the child with an opportunity to express any views, subject to the exceptions in section 68LA(5B).

Interim hearings and risk management

Interim parenting hearings are directed at managing risk and providing arrangements for the child pending the final hearing. They are ordinarily conducted on affidavit evidence and are shorter than final hearings. Interim risk-management decisions may be made on a limited evidentiary record and without final findings on contested facts; the Court proceeds on the material before it and forms a view about the arrangements that best manage the identified risks pending trial. The arrangements ordered, and any safeguards (which may include supervision, changeover conditions, no-communication conditions or interim injunctions under section 68B), depend on the child's best interests, the existence and nature of any unacceptable risk, the evidence, and the powers invoked in the application.

Cross-examination in family-violence matters

Section 102NA of the Family Law Act 1975 (Cth) restricts direct personal cross-examination between parties in certain family-violence circumstances. Where the section is engaged, cross-examination of one party by the other must be conducted through a legal representative. Where a party would otherwise be self-represented, legal representation for that limited purpose is available through the applicable arrangements. The section reflects a broader statutory purpose to reduce trauma and risk of re-traumatisation for parties and children in family-law proceedings.

Information sharing and specialist lists

Amendments to the Family Law Act have expanded the mechanisms by which the Court can obtain information from state and territory child-protection authorities, police and firearms agencies. The FCFCOA's specialist family violence and cross-examination arrangements, and the Priority Property Pools list where property is also in issue, are described in the Court's current practice information. The precise mechanism used in any case depends on the material sought, the issues in dispute and the Court's directions.

Aboriginal and Torres Strait Islander children

Where a child is Aboriginal or Torres Strait Islander, section 60CC(3) of the Family Law Act 1975 (Cth) requires the Court, in addition to the section 60CC(2) matters, to consider the child's right to enjoy their Aboriginal or Torres Strait Islander culture, including by having the support, opportunity and encouragement necessary to connect with, and maintain their connection with, members of their family and with their community, culture, country and language, together with the likely impact of any proposed order on that right. That additional consideration is weighed with the other section 60CC matters, including safety, and is not a substitute for the paramount consideration of the child's best interests under section 60CA. The Court's assessment is fact-specific and depends on the evidence about the child and the family.

Coercive control and non-physical family violence

The definition of family violence in section 4AB is expressly not limited to physical assault. The examples given in section 4AB(2) include repeated derogatory taunts, intentional damage to property, intentional injury to an animal, unreasonable denial of financial autonomy, unreasonable withholding of reasonably necessary financial support, and preventing a family member from making or keeping connections with family, friends or culture. Where the Court is asked to consider coercive control or other non-physical family violence, contemporaneous records — messages, financial records, third-party observations, medical or counselling records — as well as the parties' evidence may be relevant. The weight given to any category of evidence turns on the whole record.

Injunctions under section 68B and safety orders

Section 68B of the Family Law Act 1975 (Cth) empowers the Court to grant injunctions for the personal protection of a child, a person who has parental responsibility for a child, or a person with whom a child is to spend time under an order. Section 68B injunctions are made under federal family-law jurisdiction and can operate alongside state and territory family-violence orders in accordance with sections 68P to 68T. Enforcement mechanisms for section 68B injunctions differ from those for family violence intervention orders under the Family Violence Protection Act 2008 (Vic), and the appropriate choice depends on the identified risks and the objectives sought to be achieved.

Variation of final parenting orders

A final parenting order can be varied on application. The principle in Rice v Asplund (1979) FLC 90-725 has been codified for parenting orders in section 65DAAA of the Family Law Act 1975 (Cth). The Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final order was made and is satisfied that it is in the child's best interests to reconsider the order. A change in the safety picture — for example, new evidence of family violence or a material change in the circumstances of a party — can, on the evidence, meet that threshold. Whether it does is a matter for the Court on the material before it. Section 65DAAA contains the threshold for reconsidering a final parenting order. If that threshold is met and the order is reconsidered, section 60CA makes the child's best interests the paramount consideration, and the Court applies the current section 60CC considerations, including the matters directed to the safety of the child and of each person who has care of the child. Section 60CC(2)(a) does not describe safety as "the paramount consideration", and the current section does not label any of its factors a "primary consideration".

Whether the threshold in section 65DAAA is met on the evidence in a particular case is a matter for the Court on the material before it. If the threshold is not met, the earlier final order stands. If it is met, the Court reconsiders the arrangements by reference to the child's current circumstances rather than the circumstances at the time of the earlier order, and it does so under the current section 60CC framework.

Consent orders and the court's supervisory role

Parenting arrangements can be documented by consent — as an Application for Consent Orders in the FCFCOA or as a parenting plan under Part VII, Division 4. Under section 60CA the child's best interests remain the paramount consideration for any parenting order, and the Registrar or Judge considering an Application for Consent Orders must be satisfied that the proposed orders are in the child's best interests by reference to the section 60CC matters, and may refuse to make consent orders that do not meet that requirement. Where a Notice of Child Abuse, Family Violence or Risk has been filed, or where the material otherwise discloses family violence, abuse or risk, the Court is required by section 60CC to take the history of family violence, abuse or neglect and any applicable family-violence orders into account in its best-interests assessment. A parenting plan is not enforceable in the same way as a parenting order, and its effect on any earlier parenting order should be considered in the drafting.

Interaction with property and financial proceedings

Parenting and financial matters are ordinarily conducted as separate proceedings, but the underlying facts can overlap. Amendments to the property provisions have expressly recognised the effect of family violence on contributions and on a party's future needs in property adjustment applications. Whether and how family violence is relevant in the property proceeding is a question for that proceeding on its own evidence; the same conduct may be considered from different perspectives in the parenting and financial contexts. Careful case management may be needed to avoid duplication and to protect the parties and children from unnecessary re-traumatisation.

Practical matters: changeover, communication and information exchange

Where the parties will continue to have contact around changeover or in relation to shared parental decisions, the orders can include practical provisions to reduce risk and conflict. Common features drawn from FCFCOA practice information include changeover at a neutral supervised location or through a third party, use of a communication tool or written communication book limited to matters concerning the child, prohibitions on derogatory comments about the other parent in the child's presence, and clear provisions about the sharing of information from schools and health providers. These features do not replace substantive orders on time and responsibility; they operationalise them in a way that reflects safety and the child's needs.

Costs

Section 117 of the Family Law Act 1975 (Cth) provides that each party ordinarily bears their own costs, subject to the exceptions in section 117(2A). The Court can award costs in defined circumstances, including where a party has been wholly unsuccessful, has instituted proceedings frivolously or vexatiously, or has failed to comply with orders. In family-violence-related parenting matters, as in other family-law matters, costs turn on the specific facts and on the conduct of the proceeding.

Frequently asked questions

How Parke Lawyers Can Help

Parke Lawyers' Family Law team acts for parents and other carers on parenting matters involving family violence — the Notice of Child Abuse, Family Violence or Risk, interim safety arrangements, section 68B injunctions, interaction with state and territory family-violence orders, and contested proceedings. Family violence and parenting orders? Speak with a family lawyer early so safety issues, evidence and available interim arrangements can be assessed promptly.