Family Violence – Impact on Parenting Matters

The Family Law Act 1975 defines ‘family violence’ in section 4AB of the Act as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

A “family violence order” means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence. Such orders include Apprehended Violence Orders.

Domestic violence allegations and AVO’s can have a widespread impact in parenting matters and on the outcome of child custody disputes, for the child, the party accused of violence and the party who has been the victim of domestic violence.

While obtaining an AVO does not automatically mean the “upper hand” in family law proceedings, and “mud-slinging” by way of frivolous and vexatious allegations of domestic violence is discouraged, domestic violence allegations and AVO’s are considered to be a relevant factor in parenting matters and child custody disputes as the Court will always assess evidence that is relevant to the child’s welfare. For example:

– Section 43(1)(ca) of the Act states that one of the principles to be applied by the Family Court is the need to ensure protection from family violence.

– Part VII is the section of the Act that deals with parenting matters and child custody disputes. Section 60B(1)(b) states that one of the objects of Part VII is to ensure that the best interests of children are met by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

– In determining what Parenting Orders are in the best interests of a child, the Court must consider the primary consideration of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, and this consideration is to be given greater weight than the other primary consideration of the benefit to the child of having a meaningful relationship with both parents (section 60CC(2)(b); (2A)) (See: “What are the best interests of the child”).

– The presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence (section 61DA(2)(b)) (See: Meaning of “Parental Responsibility”).

– If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the Court of the family violence order (section 60CF(1)).

– In considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order: is consistent with any family violence order; and does not expose a person to an unacceptable risk of family violence (section 60CG).

– The Court is to take prompt action in relation to allegations of child abuse or family violence (section 67ZBB).

– The Court must comply with certain obligations when making an order that is inconsistent with an existing family violence order (section 68P).

The making of irrelevant or unfounded allegations can be highly disadvantageous and the Court will sometimes doubt whether a party irresponsible enough to make such allegations is responsible enough to have custody of the child. However, cases of legitimate domestic violence allegations, and particularly cases where there is an AVO in place against one party, have an impact on the Court’s decision-making process when determining issues such as who the child should live with in the short term and long term, how much time a child should spend with the other parent, and how parental responsibility should be allocated.

In deciding whether to make a particular Parenting Order, if any, in relation to a child, the Court is required to regard the best interests of the child as the paramount consideration (section 60CA) and therefore it is crucial to approach parenting matters and child custody disputes where there are domestic violence allegations or an AVO with great care and solid legal expertise.

If you are currently involved in a child custody dispute where allegations of family violence are involved, our experts at Prime Lawyers – Family Law division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.