Anstie, Lara, ‘Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings’ (2016) 43(4) Brief 38.
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks (Consultation Paper, 2010).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System, ALRC Report 135, March 2019
Bagshaw, Dale et al, ‘The effect of family violence on post-separation parenting arrangements The experiences and views of children and adults from families who separated post-1995 and post-2006’ [2011] (86) Family Matters 49.
Bailey, Alice, 'Separating safety from situational violence: Response to ‘Allegations of family violence and child abuse in family law children‘s proceedings‘' [2007] (77) Family Matters 26.
Behrens, J. & Bruce Smyth, Australian Family Court Decisions About Relocation: Parents’ Experience and Some Implications for Law and Policy. (2010) 38 Federal Law Review 1-20.
Booth, Tracey, Miranda Kaye, & Jane Wangmann. (2022). Addressing the problem of direct cross-examination in Australian family law proceedings. University of New South Wales Law Journal, 45(4), 1415–1448.
Bozin, Danielle, ‘The Hague Child Abduction Convention's Grave Risk of Harm Exception: Traversing the Tightrope and Maintaining Balance between Comity and the Best Interests of the Child’ (2016) 35(1) University of Tasmania Law Review 24-42, doi: 10.3316/INFORMIT.135379927197544
Bromfield, Leah, et al, ‘Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Misuse and Mental Health Problems’ (National Child Protection Clearinghouse Issues Paper No 33, Australian Institute of Family Studies, December 2010).
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper Presented at the Judicial Conference of Australia Colloquium, 9-11 October 2015).
Carson, R., et al., (2022). Compliance with and enforcement of family law parenting orders: Final Report, ANROWS.
Carson, R., Qu, L., Kaspiew, R., Stevens, E., Sakata, K., Horsfall, B. et al. (2022). Evaluation of the Lawyer-assisted Family Law Property Mediation: Legal Aid Commission Trial: Final Report. Melbourne: Australian Institute of Family Studies.
Carson, Rachel, Edward Dunstan, Jessie Dunstan and Dinika Roopani, Children and young people: Family law system experiences and needs - Final Report 2018 (Research Report – June 2018, Australian Institute of Family Studies).
Caruana, Catherine, ‘Dispute resolution choices: A comparison of family dispute resolution, family law conferencing services and collaborative law’ [2010] (85) Family Matters 80.
Chisholm, R & Fehlberg, B. (2022) The High Court and family law: The Hague child abduction cases. Australian Journal of Family law, 35: 39-67.
Chisholm, Richard, ‘The Sharing of Experts’ Reports Between the Child Protection System and the Family Law System’ (Canberra: Attorney-General’s Department, 2014).
Chisholm, Richard, ‘Information-sharing in Family Law & Child Protection: Enhancing Collaboration’ (Canberra: Attorney-General’s Department, 2013).
Chisholm, Richard, ‘Family Courts Violence Review: A Report’ (Canberra: Attorney-General’s Department, 2009).
Chisholm, Richard, ‘“Less adversarial” proceedings in children’s cases’ [2007] (77) Family Matters 28.
Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
De Maio, John, et al, ‘Survey of Recently Separated Parents: A study of parents who separated prior to the implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011’ (Commissioned Report, Australian Institute of Family Studies, 2013).
Dewar, John, et al, ‘Litigants in Person in the Family Court of Australia: A report to the Family Court of Australia’, 2000).
Family Court of Australia, Self-represented Litigants - A Challenge: Project Report (December 2000-December 2002).
Family Court of Australia, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
Family Court of Australia, ‘Implications of the Australian Institute of Family Studies "Allegations of Family Violence and Child Abuse in Family law Children's Proceedings" report: Response from the Family Court of Australia’ [2007] (77) Family Matters 16.
Family Law Council, ‘Litigants in Person: A Report to the Attorney-General’ (August 2000).
Family Law Council, ‘In Response to the first two terms of reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems’ (Interim Report to the Attorney-General, June 2015).
Faulks, John, ‘Justice and the protection of children’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Fehlberg, Belinda and Christine Millward, ‘Family violence and financial outcomes after parental separation’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Fogarty, John, ‘Family Court of Australia: into a brave new world’ (2009) 20(3) Australian Family Lawyer 2-24.
Freeman, Marilyn and Nicola Taylor, ‘Domestic violence and child participation: contemporary challenges for the 1980 Hague Child Abduction Convention’ (2020) 42(2) Journal of Social Welfare and Family Law 154, (UK) doi: 10.1080/09649069.2020.1751938
Rob George & April Gallwe, ‘How do parents experience relocation disputes in the family courts?’ (2016) 38(4) Journal of Social Welfare and Family Law 394.
Harrison, Margaret, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
Higgins, Daryl and Rae Kaspiew, ‘Child protection and family law… Joining the dots’ (NCPC Issues No. 34, Australian Institute of Family Studies, 2011).
Horsfall, Briony and Rae Kaspiew, ‘Relocation in separated and non-separated families: Equivocal evidence from the social science literature’ (2010) 24 AJFL 34.
Humphreys, Cathy and Monica Campo, Fathers who use violence: Options for safe practice where there is ongoing contact with children (CFCA Paper No. 43 – June 2017, Australian Institute of Family Studies).
Humphreys, Cathy and Meredith Kiraly, ‘Developmentally sensitive parental contact for infants when families are separated’ [2010] (85) Family Matters 49.
Jaffe, Peter G., Janet R. Johnston, Claire V. Crooks, Nicholas Bala, ‘Custody disputes involving allegations of Domestic violence: toward a differentiated approach to parenting plans’ (2008) 46(3) Family Court Review 500.
James, Kerrie, ‘Domestic Violence Within Refugee Families: Intersecting Patriarchal Culture and the Refugee Experience’ (2010) 31 The Australian and New Zealand Journal of Family Therapy 275.
James-Hanman, D & Holt, S. Post-Separation Contact and Domestic Violence: our 7-Point Plan for Safe[r] Contact for Children (2021) 36 Journal of Family violence 991-1001 doi: 10.1007/s10896-021-00256-7
Johnston, JR and Sullivan, MJ, ‘Parental alienation: in search of common ground for a more differentiated theory’ (2020) 58(2) Family Court Review 270-292.
Joint Select Committee, Second interim report: Improvements in family law proceedings, (2021: Commonwealth of Australia).
Kaspiew, Rae, et al, Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (ANROWS, 2022).
Kaspiew, R., Horsfall, B., Qu, L., Nicholson, J. M., Humphreys, C., Diemer, K., … Dunstan, J. Domestic and family violence and parenting: Mixed method insights into impact and support needs(ANROWS, 2017).
Kaspiew, Rae, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Experiences of Separated Parents Study’ (Evaluation of 2012 Family Violence Amendments)’ (Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Responding to Family Violence: A Survey of Family Law Practices and Experiences’ (Report, Australian Institute of Family Studies, October 2015).
Kaspiew, Rae, et al, ‘Court Outcomes Project’ (Report, Australian Institute of Family Studies, October 2015).
Kaspiew, Rae, et al, ‘Independent Children’s Lawyers Study’ (Final Report (2nd Edition), Australian Institute of Family Studies, June 2014).
Kaspiew, Rae, et al, ‘Post-separation parenting arrangements involving minimal time with one parent’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Kaspiew, Rae, et al, ‘Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases’ (Commissioned Report, Australian Institute of Family Studies, 2012).
Kaspiew, Rae, Juliet Behrens and Bruce Smyth, ‘Relocation disputes in separated families prior to the 2006 reforms: An empirical study’ [2011] (86) Family Matters 72.
Kaspiew, Rae et al, ‘Evaluation of the 2006 Family Law Reforms’ (Australian Institute of Family Studies, 2009).
Kelly, Joan B & Johnson, Michael P, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476.
Kruk, E, ‘Parental alienation as a form of emotional child abuse: current state of knowledge and future directions for research’ (2018) 22(4) Family Science Review, 141-164.
Laing, Lesley, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence (Faculty of Education and Social Work, University of Sydney, 2010).
Lee‐Maturana et al, Characteristics and experiences of targeted parents of parental alienation from their own perspective: A systematic literature review (2019) 71 Australian Journal of Psychology 83-91.
Maloney, et al, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study’ (Research Report No. 15, Australian Institute of Family Studies, 2007).
McDonald, Myfanwy and Kate Rosier, ‘Interagency Collaboration: Part A. What is it, what does it look like, when is it needed and what supports it?’ (AFRC Briefing No. 21, Australian Institute of Family Studies, 2011).
McIntosh, Jennifer et al, ‘Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children’ [2011] (86) Family Matters 41.
Meier, J, Dickson, S., O’Sullivan, C., & Rosen, L. (2022) The Trouble with Harman and Lorandos’ Parental Alienation Allegations in Family Court Study (2020)Journal of family, trauma, child custody & child development, 19(3-4): 295-317, doi:10.1080/26904586.2022.2036286.
Mercer, J and Drew, M, ‘Introduction to parental alienation concepts and practices’ In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Mercer, Jean and Drew, Margaret (eds) Challenging Parental Alienation: New Directions for Professionals and Parents, 2021, Routledge.
Moloney, et al, ‘Understanding parenting disputes after separation’ (Research Report No. 36, Australian Institute of Family Studies, 2016).
Moloney, Lawrie, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study Research Report No. 15 — May 2007’ (Australian Institute of family Studies, 2007).
National Scientific Council on the Developing Child, ‘Excessive Stress Disrupts the Architecture of the Developing Brain’ Working Paper No 3 (2005).
Neilson, Linda C, ‘Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?’ (Muriel McQueen Fergusson Centre for Family Violence Research and The FREDA Centre for Research on Violence Against Women, 2018).
Parkinson, Patrick, ‘The ties that bind: Separation, divorce and the indissolubility of parenthood’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Parkinson, Patrick, ‘Violence, abuse and the limits of shared parental responsibility’ [2013] (92) Family Matters 7.
Parkinson, Patrick and Judith Cashmore, ‘When Mothers Stay: Adjusting to Loss After Relocation Disputes’ (2013) 47 (1) Family Law Quarterly 65.
Parkinson, Patrick, ‘The realities of relocation: Messages from judicial decisions’ (2008) 22 Australian Journal of Family Law 35.
Peel, Sara and Rosalind Croucher, ‘Mind(ing) the gap: Law reform recommendations responding to child protection in a federal system’ [2011] (89) Family Matters 21.
Perry, Bruce D, ‘Applying Principles of Neurodevelopment to Clinical Work with Maltreated and Traumatized Children’, in Working with Traumatized Youth in Child Welfare, ed by Nancy Boyd Webb, Guilford Press NY (2006).
Qu, Lixia et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Commissioned report, Australian Institute of Family Studies, December 2014).
Qu, Lixia and Ruth Weston, ‘Parenting dynamics after separation: A follow-up study of parents who separated after the 2006 family law reforms’ (Commissioned Report, Australian Institute of Family Studies, 2010).
Qu, Lixia, Family dispute resolution: Use, timing, and outcomes (2019) Australian and New Zealand Journal of Family Therapy 24-42.
Qu, Lixia, et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Australian Institute of Family Studies, 2014).
Queensland Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Rathus, Z. A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences. (2020) 42 (1) Journal of Social Welfare and Family Law 5-17.
Rhoades, H, ‘Book Review: Challenging Parental Alienation: New Directions for Professionals and Parents, Jean Mercer and Margaret Drew (eds)’ (2022) 35 Australian Journal of Family Law 290-294.
Smallwood, Emma, Stepping Stones: Legal Barriers to Economic Equality After Family Violence (Women’s Legal Service Victoria, 2015).
Strickland, Justice Steven, ‘Attachment Theory and Family Violence: a judicial perspective’ (Paper delivered at AFCC 49th Annual Conference, Chicago, 6-9 June 2012).
Sturge, Claire and Danya Glaser, ‘Contact and Domestic Violence – The Experts’ Court Report’ (2000) 30 Family Law, 615-629.
Tomison, Adam M, ‘Exploring Family Violence: Links Between Child Maltreatment and Domestic Violence’ (National Child Protection Clearinghouse Issues Paper No 13, Australian Institute of Family Studies, June 2000).
Trane, Sarah T., Champion, Kelly M., and Hupp, Steven D. A. Comparison of Parental Alienation Treatments and Evidence-Based Treatments for Children. In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Trimmings, Katarina, Onyója Momoh, ‘Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings’ (2021) 35(1) International Journal of Law, Policy and the Family 1-19 (UK).
UN General Assembly, Custody, violence against women and violence against children Report of the Special Rapporteur on violence against women and girls, its causes and consequences (Report of the Special Rapporteur on violence against women and girls, its causes and consequences, Reem Alsalem) (2023).
UN OHCHR, Special Rapporteur on violence against women and girls, its causes and consequences (SR), https://www.ohchr.org/en/calls-for-input/2022/call-inputs-custody-cases-violence-against-women-and-violence-against-children (2022).
Vesneski, William M. et al, ‘U.S. Judicial Implementation of the Hague Convention in Cases Alleging Domestic Violence’ (2011) 62(2) Juvenile Family Court Journal 1-20, doi: 10.1111/j.1755-6988.2011.01058.x
Walsh K. The Failure to Recognize Continuing Harm: Post-Separation Domestic Abuse in Child Contact Cases. Violence Against Women. 2024:10778012241243049. PMID: 38557267.
Wangmann, J., Booth, T., & Kaye, M. (2020). “No straight lines”: Self-represented litigants in family law proceedings involving allegations about family violence (Research report, 24/2020). Sydney: ANROWS.
Warrier, Sujata ‘It’s in Their Culture: Fairness and Cultural Considerations in Domestic Violence’ (2008) 46 Family Court Review 537.
Weston, Ruth et al, ‘Care-time arrangements after the 2006 reforms’ [2011] (86) Family Matters 19.
Women’s Safety and Justice Taskforce, Hear her voice: Report one, Volume 2 ‘The Mountains we must climb’ (2021)
Zashin, Andrew A, Domestic violence by proxy: a framework for considering a child’s return under the 1980 Hague Convention on the Civil Aspects of Child Abduction’s Article 13(b) Grave risk of harm cases post Monasky, (2021) 33 Journal of the American Academy of Matrimonial Lawyers 571-592.
The most common legislative mechanism used to address domestic and family violence at state and territory level is the protection order (referred to as a ‘family violence order’ under the Family Law Act 1975 (Cth)) – a civil law response to a victim’s immediate concerns of safety (and in some jurisdictions, police are also empowered to initiate proceedings).
Where domestic and family violence occurs in the context of families with children, and parents separate, parties may also apply to a court exercising jurisdiction under the Family Law Act 1975 (Cth) (primarily, the Federal Circuit and family court of Australia or family court of Western Australia) for parenting orders (under Part VII of the Family Law Act 1975 (Cth) (FLA) and Part 5 of the Family Court Act 1997 (WA) (FCA) – here called a ‘family court’). Proceedings for a parenting order can also be instituted in a state or territory court of summary jurisdiction subject to the limitations set out in Section 69N FLA and Section 43 FCA.
In all parenting proceedings the child’s best interests are the paramount consideration (Section 60CA FLA; Section 66A FCA). Pursuant to the Family Law Amendment Act 2023 (Cth), there is no longer any hierarchy in the factors utilised to determine what is in a child’s best interests (Section 60CC(2) FLA). Under Section 60CC(2), the family courts must take into consideration a series of factors, including what arrangements would promote the child’s safety, including safety from experiencing or being exposed to family violence, neglect or harm involving the child or a person caring for the child, and any family violence orders that apply (or have applied) to the child or a member of their family (Section 60CC(2A) FLA). This section is bolstered by the application of Section 60CG “Court to consider risk of family violence”.
Note: for approach in Western Australia see Section 66C FCA.
When allegations of child abuse or family violence are raised each party has an obligation to file and serve a Notice of Child Abuse, Family Violence or Risk of Family Violence (see Sections 67Z and 67ZBA FLA and Sections 159 and 162A FCA).
When an allegation of family violence or abuse is raised, a family court is required to take prompt action (Section 67ZBB FLA and Section 162B FCA). Such prompt action includes considering what interim or procedural orders (if any) should be made to enable appropriate evidence about the allegation to be obtained as expeditiously as possible and so as to protect the child or any of the parties to the proceedings. Prompt action also includes making such orders as the court considers appropriate (such as orders or injunctions for personal protection of the child or any other person) and dealing with the issues raised by the allegations as expeditiously as possible.
A family court has the power to gather evidence directly through:
•
Obtaining material from a child welfare authority, police or other prescribed government agency by order (Section 69ZW FLA; Section 202K FCA);
•
Requesting information as a “Prescribed Body” under state and territory child welfare laws;
•
Requesting material from other courts and tribunals, subject to any legislative limitations on such requests. This may be of particular assistance when seeking to obtain transcripts of evidence given in other courts or tribunals so that it may be received into evidence in child-related proceedings (Section 69ZX FLA; Section 202L FCA);
•
Ordering parties to attend one or more appointments with a Family Consultant who then prepares and provides a report to the Court (Sections 11F and 62G FLA; Sections 65 and 73 FCA);
•
Appointing an Independent Children’s Lawyer (Section 68L FLA; Section 164 FCA);
•
Requiring that a party or Independent Children’s Lawyer file and serve a subpoena.
When making a parenting order, a family court is no longer required to apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (Section 61DA and 65DAA FLA were repealed by Sections 22 and 24 respectively of the Family Law Amendment Act 2023 (Cth). The explanatory memorandum to the Family Law Amendment Bill 2023 explains that this presumption was repealed ‘in response to substantial evidence of community misconception about the law – that is, that parenting arrangements after separation are based on a parent’s entitlement to equal time, rather than an assessment of what arrangements serve the child’s best interests.’)
Parties are required to ensure that a copy of any existing protection order is filed with a family court when making an application for parenting orders (Section 60CF FLA; Section 66F FCA) (see also 10.5 Information sharing) and if a protection order is in force the court must consider any relevant inferences that can be drawn from the protection order by taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made in the protection order proceedings and any other relevant matter (Section 60CC(3)(k) FLA; Section 66C(3)(k) FCA). Where, however, a party withdraws their protection order application on the basis of undertakings given by the other party to the court; where a protection order is made by consent without admission; and where the responding party makes a cross application resulting in mutual orders, there may be no admission of fact capable of being relied upon by a family court in making a determination regarding the perpetration of domestic and family violence.
In considering a parenting order, a family 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 protection order and does not expose any person to an unacceptable risk of domestic and family violence (Section 60CG FLA; Section 66G FCA). While a family court has no jurisdiction to vary a protection order, it is permitted by Section 68P FLA and Section 174 FCA to make a parenting order (or make a recovery order or grant an injunction) that is inconsistent with the protection order. However the court must ensure the parties fully understand the nature and effect of the parenting order. This may occur in cases where information or evidence comes before a family court that was not available to the court of summary jurisdiction that made the protection order. In circumstances of ongoing violence, where a protected person is having difficulty with enforcement of a protection order as a result of the operation of a parenting order made by a family court, the protected person may need to return to the court of summary jurisdiction and make application under Section 68R FLA or Section 176 FCA to ensure the consistency and enforceability of orders.
In making or varying a protection order, a court of summary jurisdiction is empowered to resolve any inconsistencies with an existing parenting order (Section 68R FLA; Section 176 FCA). There is, however, an inherent tension between the focus of protection orders and parenting orders: on the one hand, the protection order may direct one parent to keep away from the other parent and their children; on the other hand, the parenting order is focused on the time (with possible conditions including supervision) that children are to spend with their parents and with whom the children shall live.
Intervention by a child protection authority may present additional challenges: a parent experiencing domestic and family violence by the other parent is expected to be protective of their children, or risk having them removed by the relevant child protection authority. When a protection order is in force it is possible that a family court determining a subsequent application for a parenting order may make an order that permits the respondent in the protection order application proceedings to spend time with the children, or requires the parent protected by the protection order to continue to have contact with the respondent (for example, at changeover times). Such determinations would be made by reference to the evidence in the particular case and an assessment of risk. For example, a Family Court may consider it necessary for changeovers to occur at a neutral venue and/or to be arranged in a way where the parties are not required to come into contact with one another.
When a child is subject to a state or territory child welfare order a family court cannot make a parenting order with respect to that child unless the order is expressed to come into effect at the expiration of the child welfare order or with the consent of the relevant child protection authority (Section 69ZK FLA; Section 202 FCA). The 2010 joint Australian Law Reform Commission and New South Wales Law Reform Commission Report, Family Violence—A National Legal Response noted that “…each state and territory has its own system of child protection laws and supporting agencies. These laws are invoked when parents are determined to be insufficiently protective of a child. In each jurisdiction there are thresholds for intervention by child protection authorities to protect children and to assist parents and families.”
As these thresholds vary considerably between jurisdictions, a family court considering a parenting order application may experience some difficulty in deciding the relevance of and weight to be given to information provided by a child protection authority. Child protection cases may potentially present themselves in multiple jurisdictions: a state or territory children’s court for care proceedings; a state or territory criminal court if the violence or abuse is subject to criminal charges; a state or territory magistrates’ court for a protection order application; and a family court for parenting orders. The need to go to multiple courts increases the possibility of inconsistent orders, and the possibility that parties will drop out of the system without the protections they need, thus putting them at risk of further violence abuse.
The families most likely to be involved with more than one of these jurisdictions are those with support needs associated with domestic and family violence at a time of high risk and vulnerability. For example, a party may be an applicant for a protection order, a prosecution witness for assault charges where they are the victim, a respondent in a child protection application, and simultaneously experiencing related legal issues concerning parenting issues and housing and debt. While the expectation of the courts is that in matters relating to domestic and family violence and child abuse the legal responses should be as seamless as possible, the fragmentation of legal systems and differing requirements and processes in each may be confusing to affected parties, in particular those who are self-represented, and may result in delays in the finalisation of cases.
The most common legislative mechanism used to address domestic and family violence at state and territory level is the protection order (referred to as a ‘family violence order’ under the Family Law Act 1975 (Cth)) – a civil law response to a victim’s immediate concerns of safety (and in some jurisdictions, police are also empowered to initiate proceedings).
Where domestic and family violence occurs in the context of families with children, and parents separate, parties may also apply to a court exercising jurisdiction under the Family Law Act 1975 (Cth) (primarily, the Federal Circuit and family court of Australia or family court of Western Australia) for parenting orders (under Part VII of the Family Law Act 1975 (Cth) (FLA) and Part 5 of the Family Court Act 1997 (WA) (FCA) – here called a ‘family court’). Proceedings for a parenting order can also be instituted in a state or territory court of summary jurisdiction subject to the limitations set out in Section 69N FLA and Section 43 FCA.
In all parenting proceedings the child’s best interests are the paramount consideration (Section 60CA FLA; Section 66A FCA). Pursuant to the Family Law Amendment Act 2023 (Cth), there is no longer any hierarchy in the factors utilised to determine what is in a child’s best interests (Section 60CC(2) FLA). Under Section 60CC(2), the family courts must take into consideration a series of factors, including what arrangements would promote the child’s safety, including safety from experiencing or being exposed to family violence, neglect or harm involving the child or a person caring for the child, and any family violence orders that apply (or have applied) to the child or a member of their family (Section 60CC(2A) FLA). This section is bolstered by the application of Section 60CG “Court to consider risk of family violence”.
Note: for approach in Western Australia see Section 66C FCA.
When allegations of child abuse or family violence are raised each party has an obligation to file and serve a Notice of Child Abuse, Family Violence or Risk of Family Violence (see Sections 67Z and 67ZBA FLA and Sections 159 and 162A FCA).
When an allegation of family violence or abuse is raised, a family court is required to take prompt action (Section 67ZBB FLA and Section 162B FCA). Such prompt action includes considering what interim or procedural orders (if any) should be made to enable appropriate evidence about the allegation to be obtained as expeditiously as possible and so as to protect the child or any of the parties to the proceedings. Prompt action also includes making such orders as the court considers appropriate (such as orders or injunctions for personal protection of the child or any other person) and dealing with the issues raised by the allegations as expeditiously as possible.
A family court has the power to gather evidence directly through:
•
Obtaining material from a child welfare authority, police or other prescribed government agency by order (Section 69ZW FLA; Section 202K FCA);
•
Requesting information as a “Prescribed Body” under state and territory child welfare laws;
•
Requesting material from other courts and tribunals, subject to any legislative limitations on such requests. This may be of particular assistance when seeking to obtain transcripts of evidence given in other courts or tribunals so that it may be received into evidence in child-related proceedings (Section 69ZX FLA; Section 202L FCA);
•
Ordering parties to attend one or more appointments with a Family Consultant who then prepares and provides a report to the Court (Sections 11F and 62G FLA; Sections 65 and 73 FCA);
•
Appointing an Independent Children’s Lawyer (Section 68L FLA; Section 164 FCA);
•
Requiring that a party or Independent Children’s Lawyer file and serve a subpoena.
When making a parenting order, a family court is no longer required to apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (Section 61DA and 65DAA FLA were repealed by Sections 22 and 24 respectively of the Family Law Amendment Act 2023 (Cth). The explanatory memorandum to the Family Law Amendment Bill 2023 explains that this presumption was repealed ‘in response to substantial evidence of community misconception about the law – that is, that parenting arrangements after separation are based on a parent’s entitlement to equal time, rather than an assessment of what arrangements serve the child’s best interests.’)
Parties are required to ensure that a copy of any existing protection order is filed with a family court when making an application for parenting orders (Section 60CF FLA; Section 66F FCA) (see also 10.5 Information sharing) and if a protection order is in force the court must consider any relevant inferences that can be drawn from the protection order by taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made in the protection order proceedings and any other relevant matter (Section 60CC(3)(k) FLA; Section 66C(3)(k) FCA). Where, however, a party withdraws their protection order application on the basis of undertakings given by the other party to the court; where a protection order is made by consent without admission; and where the responding party makes a cross application resulting in mutual orders, there may be no admission of fact capable of being relied upon by a family court in making a determination regarding the perpetration of domestic and family violence.
In considering a parenting order, a family 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 protection order and does not expose any person to an unacceptable risk of domestic and family violence (Section 60CG FLA; Section 66G FCA). While a family court has no jurisdiction to vary a protection order, it is permitted by Section 68P FLA and Section 174 FCA to make a parenting order (or make a recovery order or grant an injunction) that is inconsistent with the protection order. However the court must ensure the parties fully understand the nature and effect of the parenting order. This may occur in cases where information or evidence comes before a family court that was not available to the court of summary jurisdiction that made the protection order. In circumstances of ongoing violence, where a protected person is having difficulty with enforcement of a protection order as a result of the operation of a parenting order made by a family court, the protected person may need to return to the court of summary jurisdiction and make application under Section 68R FLA or Section 176 FCA to ensure the consistency and enforceability of orders.
In making or varying a protection order, a court of summary jurisdiction is empowered to resolve any inconsistencies with an existing parenting order (Section 68R FLA; Section 176 FCA). There is, however, an inherent tension between the focus of protection orders and parenting orders: on the one hand, the protection order may direct one parent to keep away from the other parent and their children; on the other hand, the parenting order is focused on the time (with possible conditions including supervision) that children are to spend with their parents and with whom the children shall live.
Intervention by a child protection authority may present additional challenges: a parent experiencing domestic and family violence by the other parent is expected to be protective of their children, or risk having them removed by the relevant child protection authority. When a protection order is in force it is possible that a family court determining a subsequent application for a parenting order may make an order that permits the respondent in the protection order application proceedings to spend time with the children, or requires the parent protected by the protection order to continue to have contact with the respondent (for example, at changeover times). Such determinations would be made by reference to the evidence in the particular case and an assessment of risk. For example, a Family Court may consider it necessary for changeovers to occur at a neutral venue and/or to be arranged in a way where the parties are not required to come into contact with one another.
When a child is subject to a state or territory child welfare order a family court cannot make a parenting order with respect to that child unless the order is expressed to come into effect at the expiration of the child welfare order or with the consent of the relevant child protection authority (Section 69ZK FLA; Section 202 FCA). The 2010 joint Australian Law Reform Commission and New South Wales Law Reform Commission Report, Family Violence—A National Legal Response noted that “…each state and territory has its own system of child protection laws and supporting agencies. These laws are invoked when parents are determined to be insufficiently protective of a child. In each jurisdiction there are thresholds for intervention by child protection authorities to protect children and to assist parents and families.”
As these thresholds vary considerably between jurisdictions, a family court considering a parenting order application may experience some difficulty in deciding the relevance of and weight to be given to information provided by a child protection authority. Child protection cases may potentially present themselves in multiple jurisdictions: a state or territory children’s court for care proceedings; a state or territory criminal court if the violence or abuse is subject to criminal charges; a state or territory magistrates’ court for a protection order application; and a family court for parenting orders. The need to go to multiple courts increases the possibility of inconsistent orders, and the possibility that parties will drop out of the system without the protections they need, thus putting them at risk of further violence abuse.
The families most likely to be involved with more than one of these jurisdictions are those with support needs associated with domestic and family violence at a time of high risk and vulnerability. For example, a party may be an applicant for a protection order, a prosecution witness for assault charges where they are the victim, a respondent in a child protection application, and simultaneously experiencing related legal issues concerning parenting issues and housing and debt. While the expectation of the courts is that in matters relating to domestic and family violence and child abuse the legal responses should be as seamless as possible, the fragmentation of legal systems and differing requirements and processes in each may be confusing to affected parties, in particular those who are self-represented, and may result in delays in the finalisation of cases.