Family Violence and Parenting Orders

The Family Law Act requires all parties to carefully consider the circumstances of alleged incidents of family violence when determining what parenting orders are appropriate. 

There is a wide definition of domestic violence in section 4 of the Act which includes:

• assault;
• stalking;
• repeated derogatory taunts;
• intentionally damaging or destroying property;
• intentionally causing harm to an animal;
• unreasonably denying a family member the financial autonomy that he or she would have otherwise had;
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support;
• preventing the family member from making or keeping connections with his or her family, friends or culture; and
• unlawfully depriving the family member, or any member of the family members' family, of his or her liberty.

Decision makers will consider context, characteristics, the balance of power between the persons affected by it and the nature of the relationship between the persons affected by it.  Of critical importance to decision makers is consideration of how children have been affected by exposure to family violence and what measures can be taken to ensure their future safety through any order that the court makes.  Section 60CC(2A) of the Act requires that greater weight be given to the safety of the child than to the benefit of the child having a meaningful relationship with both parents.

Family violence takes many forms.  All family violence and exposure to family violence harms children.  However when framing parenting orders it is important to consider the types of violence.  The Family Violence Best Practice Principles available from the Family Court website is a useful resource for reviewing how the court considers domestic violence.

Some of the accepted categories for family violence include:-

• Coercive-Controlling Violence - this is where there is a pattern of coercion, control and domination that is asserted by a primary perpetrator.
• Conflict-Instigated Violence - this form of violence is initiated by conflict.  Although power is relatively balanced between parties, violence occurs over a range of domains in which each party refuses to submit to the other.
• Violent Resistance - this form of violence is characterised by a reactive and defensive response of a victim to a primary perpetrator of abuse.
• Separation-Instigated Violence - this type of violence is characterised by a small number of violent episodes which primarily occur around the time of separation or disputes over children.  Often there is little, if any, history of violence in the relationship.
• Substance Abuse Associated Violence and Major Mental Disorder Associated Violence.  Both these forms of family violence are initiated by the perpetrator suffering from an associated medical condition.

To consider which type may be relevant to your matter, you should obtain legal advice where they can consider the following factors:-

• potency;
• pattern;
• perpetrator.

After considering these issues you should then reflect what type of parenting arrangement is appropriate for your particular circumstances.

Please do not hesitate to contact our office on (07) 4963 2000 or via our online contact form should you have any queries.