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Section 4AB of the Family Law Act 1975 (FLA) (see also Section 9A Family Court Act 1997 (WA) (FCA)) describes family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or cause the family member to be fearful.
The definition of family violence in the Family Law Act was expanded in 2011 to incorporate notions of coercion and control and came into effect on 7 June 2012. At the same time, the definition of child abuse was amended to include serious psychological harm arising from the child being subjected to or exposed to family violence (section 4(1)) (FLA).
Many parenting matters determined by consent after proceedings are initiated, or by judicial determination, involve allegations of domestic and family violence and/or child abuse. Family violence can take many forms: it can be physical, emotional, psychological or sexual. Common forms of family violence include (but are not limited to the below):
1.
Spouse/partner abuse (violence among adult partners and ex partners);
2.
Child abuse/neglect (abuse/neglect of children by an adult);
3.
Parental abuse (violence perpetrated by a child against their parent); and
4.
Sibling abuse (violence between siblings).
Research conducted into family violence allegations indicates that it is more likely that victims of family violence will be reluctant to raise allegations for fear of having their motives questioned, as opposed to people raising false allegations of family violence. It also shows that the making of false allegations is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimisation of abuse by perpetrators. A parent who feels pressure to support the family violence perpetrator's parenting role may feel discouraged from raising allegations of domestic and family violence, or may attempt family dispute resolution despite being in circumstances where they are experiencing threats, fear or abuse. A parent may be even less likely to disclose domestic and family violence where they are self-represented and unfamiliar with the relevant provisions of the Family Law Act 1975 (Cth) (FLA) or the Family Court Act 1997 (WA) (FCA), or their legal representative has not made sufficient enquiries regarding allegations of violence.
The Federal Circuit and Family Court of Australia is screening for family violence risk in all fifteen primary family law registries through the Lighthouse Project, a family safety screening and specialised case management program.
Allegations that are accompanied by evidence of strong probative weight may influence the nature of court-based parenting outcomes, for example the court may decide to make an Order whereby the child spends no time with the parent who has inflicted family violence, or that the time spent with that parent be supervised or restricted to daytime only.
Under the FLA, the Court can seek information directly from State and Territory child protection, policing and firearms agencies in relation to the following matters:
•
any abuse, neglect, or family violence the child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed to
•
family violence to which a party to the proceeding has been exposed to, or has engaged, to the extent it may affect a child to whom the proceeding relates
•
any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect, or family violence
•
any risk or potential risk of a party to the proceedings being subjected to, or engaging in family violence, to extent to which this may affect a child to whom the proceedings relate.
The Commonwealth is also funding the co-location of State and Territory child protection and policing officials in registries across Australia, improving information flows from State and Territory child protection, policing and firearms agencies to the federal family law courts.
However, the FLA and FCA do not require independent verification or corroboration of allegations of domestic and family violence (such as police or medical reports) for the court to be satisfied that it has occurred. As the Full Court of the Family Court of Australia said in Amador & Amador ([2009] FAMCAFC 196 per May, Coleman and Le Poer Trench JJ:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. (at [79])
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. (at [81])
When corroboration evidence is available but is not called, adverse inferences might appropriately be drawn.
Section 4AB of the Family Law Act 1975 (FLA) (see also Section 9A Family Court Act 1997 (WA) (FCA)) describes family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or cause the family member to be fearful.
The definition of family violence in the Family Law Act was expanded in 2011 to incorporate notions of coercion and control and came into effect on 7 June 2012. At the same time, the definition of child abuse was amended to include serious psychological harm arising from the child being subjected to or exposed to family violence (section 4(1)) (FLA).
Many parenting matters determined by consent after proceedings are initiated, or by judicial determination, involve allegations of domestic and family violence and/or child abuse. Family violence can take many forms: it can be physical, emotional, psychological or sexual. Common forms of family violence include (but are not limited to the below):
1.
Spouse/partner abuse (violence among adult partners and ex partners);
2.
Child abuse/neglect (abuse/neglect of children by an adult);
3.
Parental abuse (violence perpetrated by a child against their parent); and
4.
Sibling abuse (violence between siblings).
Research conducted into family violence allegations indicates that it is more likely that victims of family violence will be reluctant to raise allegations for fear of having their motives questioned, as opposed to people raising false allegations of family violence. It also shows that the making of false allegations is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimisation of abuse by perpetrators. A parent who feels pressure to support the family violence perpetrator's parenting role may feel discouraged from raising allegations of domestic and family violence, or may attempt family dispute resolution despite being in circumstances where they are experiencing threats, fear or abuse. A parent may be even less likely to disclose domestic and family violence where they are self-represented and unfamiliar with the relevant provisions of the Family Law Act 1975 (Cth) (FLA) or the Family Court Act 1997 (WA) (FCA), or their legal representative has not made sufficient enquiries regarding allegations of violence.
The Federal Circuit and Family Court of Australia is screening for family violence risk in all fifteen primary family law registries through the Lighthouse Project, a family safety screening and specialised case management program.
Allegations that are accompanied by evidence of strong probative weight may influence the nature of court-based parenting outcomes, for example the court may decide to make an Order whereby the child spends no time with the parent who has inflicted family violence, or that the time spent with that parent be supervised or restricted to daytime only.
Under the FLA, the Court can seek information directly from State and Territory child protection, policing and firearms agencies in relation to the following matters:
•
any abuse, neglect, or family violence the child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed to
•
family violence to which a party to the proceeding has been exposed to, or has engaged, to the extent it may affect a child to whom the proceeding relates
•
any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect, or family violence
•
any risk or potential risk of a party to the proceedings being subjected to, or engaging in family violence, to extent to which this may affect a child to whom the proceedings relate.
The Commonwealth is also funding the co-location of State and Territory child protection and policing officials in registries across Australia, improving information flows from State and Territory child protection, policing and firearms agencies to the federal family law courts.
However, the FLA and FCA do not require independent verification or corroboration of allegations of domestic and family violence (such as police or medical reports) for the court to be satisfied that it has occurred. As the Full Court of the Family Court of Australia said in Amador & Amador ([2009] FAMCAFC 196 per May, Coleman and Le Poer Trench JJ:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. (at [79])
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. (at [81])
When corroboration evidence is available but is not called, adverse inferences might appropriately be drawn.