Family Violence and Child Abuse in the Family Law System

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

This section covers how the family law system deals with family violence and how it is relevant to applications about children.

Safety

Safety for victims of violence and their children is at the heart of laws and processes surrounding family violence. If you are feeling unsafe you can:

• Ring the police on 000;
• Ring the Domestic Violence Crisis Service’s 24/7 Crisis Line at (02) 6280 0900;
• Apply for a Family Violence Protection Order. See Getting Help. Read more about Family Violence Protection Orders.

What is family violence?

This is defined in section 4AB of the Family Law Act 1975. It recognises that family violence is much broader than physical harm. Family violence is:

• ‘Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family’;
• Violent threatening or other behaviour that ‘causes the family member to be fearful’;
• Section 4AB(2) of the Family Law Act 1975 gives examples of acts that may be regarded as family violence. These include:
• assault and sexual assault;
• stalking;
• repeated derogatory comments;
• intentionally damaging or destroying property;
• intentionally causing death or injury to an animal;
• preventing a family member from contact with their family, friends or culture or unlawfully depriving a family member of their liberty;
• unreasonably denying the family member financial autonomy;
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
• exposing a child to family violence – e.g where the child sees or hears or experiences the effects of violence, even though they are not the direct victim.

What is child abuse?

This is also defined in section 4 of the Family Law Act 1975. It includes:

• assault and sexual assault;
• involving the child in sexual activity;
• causing the child to suffer serious psychological harm including when that is caused by being subjected or exposed to family violence; or
• serious neglect.

Family Violence, Child Abuse and Family Dispute Resolution

Since 2006, the Family Law Act 1975 has made it compulsory for most people applying for orders about children to attempt to resolve the dispute before going to court by attending a Family Dispute Resolution Conference. You can be exempt from Family Dispute Resolution where:

1. There has been abuse or there is a risk of abuse to a child;
2. There has been family violence or there is a risk of family violence.

Family Violence, Child Abuse and the Federal Circuit and Family Court of Australia

The FCFC and the Family Law Act 1975 have recognised that there is often family violence in the lives of people coming before the Courts. Some of the steps that have been taken to try to ensure safety, disclosure of violence and appropriate responses to family violence are:

• Security screening on entering the Court;
• Encouraging people who have fears about attending court to contact the Courts beforehand, who can provide safe rooms or attendance by phone or video instead of in person, separate entry and exit points, and control entry and departure to ensure that the victim does not meet or is not followed by the perpetrator;
• Family Violence Best Practice Principles which recognise the harmful effect of family violence and guide the court when dealing with matters involving family violence. These principles generally require applications alleging violence or abuse to be given priority, to be heard as quickly as possible, and to be managed by one specialist Judge (a new version of the Best Practice Principles will be available sometimes in 2022);
• In proceedings about children, the parties notify the FCFC about family violence and child abuse. The parties must file a Notice of Child Abuse, Family Violence or Risk form for any person who files an Initiating application, Application for consent orders or Response to initiating application in the Court seeking parenting orders. This is to inform the court about any allegations of family violence, child abuse or risk and enable it to conduct proceedings as safely and quickly as possible. The court is required under section 67ZBB of the Family Law Act 1975 to take prompt action in relation to allegations, including:
• • determining whether interim or procedural orders should be made to protect the child or any parties to the proceeding;
  • obtaining evidence about the allegation as quickly as possible; or
  • determining whether to make orders to obtain documents or information from relevant state or territory agencies in relation to the allegations (s 69ZW);
• In proceedings about children, if any party answers yes to the questions in the Notice of Child Abuse, Family Violence or Risk form, a prescribed child welfare authority, namely Child and Youth Protection Services ACT , must be provided a copy of the form and may be provided with other court documents and information to investigate the contents of the form;
• In accordance with section 60CF of the Family Law Act 1975, if a party is aware that a family violence order applies to a child, or a member of the child’s family , they must inform the FCC of the family violence order;
• Court staff, such as family consultants, counsellors, independent children’s lawyers are ‘mandatory reporters’ which means that they must also notify Child and Youth Protection Services if they have reasonable grounds for suspecting that a child has been abused or is at risk of abuse;
• The Family Law Act 1975 operates on the principle that the best interests of children are the paramount consideration. The primary consideration for the Courts in determining ‘best interests’ is ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.’

Family Violence and Lawyers

If you and/or your children have experienced family violence or abuse you may find it useful to get legal advice. See Contacts and Resources for free legal advice for victims of family violence. Free advice at Legal Aid ACT is also available to alleged perpetrators of family violence.

Your lawyer should conduct themselves in accordance with the Best Practice Guidelines for Lawyers Doing Family Law Workdeveloped in 2010 by the Family Law Section of the Law Council.

This means that your lawyer should act as follows:

• recognise that family violence is a serious problem and understand the dynamics of relationships where there has been violence;
• be sensitive to the different needs and experiences of clients from different backgrounds and cultures;
• provide you with the opportunity to talk about the violence if you wish in a non-judgmental environment;
• provide you with information about sources of help and support;
• focus on your safety and that of your children by asking you about this and exploring options that promote your safety and advising you about these;
• assure you that they must keep what you say to them and even your consultation with them confidential, and the legal limits on this;
• where your location or address is not known to the other party for safety reasons, consider how to keep your whereabouts confidential;
• give you practical and legal advice about your options for staying safely in your home, or for leaving if that is what you wish to do;
• give you practical and legal advice about the possibility of obtaining a Protection Order, and/or making a report to police;
• give you practical and legal advice about obtaining or protecting evidence;
• not contact the other party without your permission;
• be clear about what contact you do or don’t want with the other party, and for example, ensure there are no face to face meetings and any attendance at court is managed to avoid the other party;
• encourage you to have a support person with you when you come for an appointment; and
• give you information and advice in a way that you can understand to enable you to make your own decisions in your own time.

Obtaining protection in Family Law – Injunctions

An injunction is an Order to stop a party doing something, for example, to stop them assaulting or contacting the other party or child, or to stop them from entering or living in the former home, entering a place of employment or entering the child’s school. Section 68B(1) of the Family Law Act 1975 states that an injunction can be made for the personal protection of a child, a parent of the child or a person with whom the child is to live, spend time or communicate with under a parenting order. Injunctions are not enforced as effectively as Family Violence Protection Orders and Orders obtained from the Magistrates Court under the ACT Family Violence Act 2016, which can give the same protection as a FCFC’s injunction, and are enforced by police.

In some circumstances, police can automatically arrest a person who breaches a FCFC’s injunction, although in practice this does not occur often. This automatic power of arrest relates to injunctions for the personal protection of a person or a child and where there is physical harm or threats of physical harm, or where there is harassment or stalking.

Some things to note about injunctions:

• Injunctions for personal protection are only available to married people, including same sex marriages. People in de facto relationships needing personal protection need to apply for a Family Violence Protection Order under ACT law;
• However, the FCFC can order an injunction for the protection of a child, and as part of that order, can also order an injunction for the protection of the parents of the child, whether married or not;
• De facto and married couples can obtain injunctions in relation to financial matters, for example, to stop the sale of a home or to stop a party spending money, or transferring it into another account;
• Both de facto and married couples can obtain injunctions excluding a party from living in the former home – often referred to as ‘sole occupation’ or ‘exclusive occupation’ orders;
• There are penalties for breaching injunctions, including fines and imprisonment, although the FCFC has only made orders for imprisonment as a last resort;
• As stated above, police can arrest for breach of a personal protection injunction, but sometimes police are not aware of this power, and may not take action.

You can find more information on ACT Family Violence Protection Orders here: https://www.courts.act.gov.au/magistrates/law-and-practice/family-violence-and-protection-orders.

How do I choose whether to get a FCFC’s injunction or an ACT Family Violence Protection Order?

• In most circumstances you would choose an ACT Family Violence Order;
• The process to obtain an ACT Family Violence Protection Order is simpler and quicker. ACT Orders can cover most areas that a FCFC’s injunction can cover and a breach of an ACT Order is enforced by police;
• If you already have proceedings on foot in the FCFC you could consider whether to apply for an injunction as part of those proceedings, instead of going to a different court – the ACT Magistrates Court – to get an ACT Family Violence Order. It is also worth noting that a Family Violence Order has a maximum length of 24 months while a similar order made by the FCFC are not restricted by a time period.