Under the Family Law Act 1975 (Cth), family violence is defined as violent or threatening behaviour that controls or coerces a family member or causes a family member to be fearful. Sadly, a high number of family law cases involve accusations of this kind of behaviour, with victim-survivors facing numerous hurdles in navigating family law proceedings, including perpetrators exploiting legal processes to perpetuate family violence. Many of those leaving abusive relationships are grappling with financial instability, housing issues, and ongoing safety concerns, making it more challenging to access appropriate legal support. Trauma and power imbalances can also inhibit a victim-survivor’s ability to effectively engage with the Federal Circuit and Family Court of Australia (FCFCA) (“the court”).
At a policy level, Australia has made significant strides in recognising and addressing domestic violence within the context of family law. The recent Family Law Amendment Act 2023 (Cth) explicitly acknowledges the prevalence and seriousness of family violence and the need to prioritise the safety of everyone involved in a family law action, but especially of children. These recent amendments to the Family Law Act prioritise the safety of children and the financial security and welfare of domestic violence victim-survivors in family law proceedings in Australia. There is potential that in future these proceedings may offer a more equitable and safer environment for all parties.
Family Violence Orders
Historically, the main strategy to respond to intimate partner violence and child abuse allegations is the Family Violence Order (FVO). Although they are called different things in each state and territory, these orders all exist to protect someone from physical and mental harm, including financial and sexual abuse, and stalking. A FVO can impose conditions such as forbidding the publishing of information about the victim on the internet, prohibition against approaching or contacting a person at their home or workplace, and not using a third party to pass on a message. Breaching a condition of a FVO is a criminal offence and the perpetrator can face penalties, including imprisonment.
In a family law matter, the court must be informed of any FVO that pertains to a party or child that is the subject of a proceeding, and the court must ensure that any Parenting Order is consistent with the FVO in force. However, it is important to note that the court can make orders that override FVOs to permit contact between a child and their parent or other significant people.
Property settlements
Domestic violence victims are often subject to financial abuse and as a result, many have little financial recourse when attempting to escape the abusive situation. The court is now compelled to consider the impact of a history of domestic violence when making property settlement decisions. This change acknowledges the inherent vulnerability of those who are escaping abusive situations and affords them greater financial protection in the post-separation period and when engaging with the court. When dividing property after separation, the court must consider making adjustment in favour of the victim in recognition of the history of violence. Additionally, there are specific duties of disclosure about financial matters when there are domestic violence issues prior to and during court proceedings. Further changes have also been made to help prevent perpetrators from abusing the court system by repeatedly taking their victims back to court.
Parenting orders
Parenting orders are made by the court to establish how parents will take responsibility for the care of their children and make decisions about important issues such as educational and medical matters. Parenting orders can also set out quite detailed information about how to manage the relationship between the co-parents, such as rules for the handover of children or how contact can be made between the parents. These orders are legally binding and enforceable, meaning that if one of the parties breaches the terms, the other party can file a contravention or enforcement order.
In cases of domestic violence, the risk of ongoing abuse, coercion and manipulation complicates the issue of parenting orders. However, even in cases where there is evidence of domestic violence, the court does not automatically decide that the perpetrator will lose contact with their child.
Historically, there was a presumption that both parents have equal decision-making power over their children, even in cases of domestic violence. The court now makes the best interests of the child the primary focus when making parenting orders, safeguarding the child’s safety and well-being above any other consideration, including the desirability of the child having contact with both parents. With this new approach, if a parent is found to have engaged in family violence, the court is more likely to restrict their time with the child, or they can lose their parental responsibility altogether.
Another significant step to protect the well-being of children is to make Independent Children’s Lawyers more available to ensure the children’s views are considered when determining parenting orders. In addition, for cases involving First Nations families, there has been an expansion of the definition of family to ensure greater inclusivity for Aboriginal and Torres Strait Islander communities.
We can assist you with advice about the implications of domestic violence in family law proceedings and representation on parenting and property matters. Please contact or phone Taylor Rose on 1800 491 469.
