Child Protection
Lawyers & Barristers

Family violence in family law is defined as violent, threatening or other behaviour that coerces or controls another family member, or causes them to be fearful. Some examples of behaviour that may constitute family violence are:

• an assault
• a sexual assault or other sexually abusive behaviour
• stalking
• intentionally damaging or destroying property
• intentionally killing or injuring an animal
• unreasonably controlling or denying a family member access to finances or financial support
• preventing a family member from having connections with their family, friends, and/or
• depriving a family member of their liberty.

A child is exposed to family violence if they see or hear family violence or experience the effects of family violence. Some examples of a situation that might mean the child is exposed to, or is considered to have been exposed to family violence are:

• overhearing threats of violence from one family member to another family member
• seeing or hearing an assault by one family member on another family member
• comforting or assisting a family member who has been assaulted by another family member
• cleaning up a location that was affected by an assault by one family member on another family member, and/or
• being present when police or ambulance officers attend to a family member who has been assaulted by another family member.

The Family Court must be informed if any family violence has occurred throughout the relationship. The Family Court is concerned about family violence and wants to make sure it protects children from harm. Greater weight is placed on the need to protect children from harm, abuse, neglect or family violence above the benefit to children of having a meaningful relationship with both of their parents.

If you or your former partner alleges:

• that there has been family violence
• there is a risk of family violence
• that there has been child abuse or
• there is a risk of child abuse

Then a Form 4 "Notice of child abuse or family violence" must be filed and served on the person who is alleged to have carried out the family violence or child abuse.

The Court is required to take prompt action in relation to allegations of child abuse or family violence and may consider appointing an Independent Children’s Lawyer or a single expert witness to assess the allegations of family violence or child abuse made in the Form 4.

Acts of family violence or child abuse are taken very seriously by the Family Court and may delay the court process in order for investigations into the allegations to be carried out

If the Family Court determines that there is a risk or there are safety concerns in relation to children when considering what parenting orders to make, they will look at what arrangements will be most appropriate in the circumstance. They must also still consider what is in the best interests of the child.

Some of the options that the Court may order are:

• The child spends no time with the parent who has allegedly engaged in family violence
• There is supervised time set up between the child and the parent who has allegedly engaged in family violence
• The child spends very limited time with the other parent or party, for example only a few hours during the day, with no overnight stays.
• The child only spends time with the other parent or party in a public environment, for example a shopping centre or park/playground.
• The parent who has allegedly engaged in family violence must undergo counselling or partake in a parenting course such as Mums and Dads Forever Program.

If the Family Court orders any of the above options, it is likely that the orders will be for a limited or set period of time to allow further assessment of the situation and to determine that the child is safe and not at risk.

Where you have a Violence Restraining Order (VRO) as well as Family Court orders about your children, the Family Court orders will usually override the VRO to the extent of any inconsistency. An application can be made to make the terms of the VRO consistent with the Family Court orders.

If you already have parenting orders from the Family Court and then you get a VRO, the Magistrates Court that grants the VRO can in some circumstances change or cancel any parenting orders but only for a limited time.

You can ask the Family Court for an injunction to protect yourself or your children from family violence. The Family Court can make injunctions on a range of issues including to:

• protect you and/or your children physically, emotionally or mentally
• allow you and/or your children to live your lives without being disturbed by others
• stop your ex-partner from harassing, molesting, abusing or interfering with you and/or your children
• stop your ex-partner going near the children or their home/school/workplace
• stop your ex-partner (or another person) removing your children from the state, country or another person's care
• prevent the children from being brought into contact with a particular person (eg a relative or friend) if this contact would not be safe for your children.

The Court can also make injunctions against other people (known as "third parties"), for example grandparents, other relatives or new partners.