Australian Government: Attorney General’s Department, The National Principles to Address Coercive Control in Family and Domestic Violence. 2023.
The Standing Council of Attorneys-General released the National Principles to Address Coercive Control in Family and Domestic Violence on 22 September 2023. They set out a shared understanding of the common features and impacts of coercive control, as well as guiding considerations to inform responses to this issue. An Easy Read version of the National Principles is also available.
The 7 National Principles focus on:
1.
A shared understanding of the common features of coercive control.
2.
Understanding the traumatic and pervasive impacts of coercive control.
3.
Taking an intersectional approach to understanding features and impacts.
4.
Improving societal understanding of coercive control.
5.
Embedding lived experience.
6.
Coordinating and designing approaches across prevention, early intervention, response, and recovery and healing.
7.
Embedding the National Principles in legal responses to coercive control.
The National Principles are designed to be used by government and non-government organisations involved in addressing coercive control. The National Principles will also be a tool to support greater community awareness of coercive control. By improving awareness of coercive control, the National Principles will inform more effective responses to family and domestic violence and promote more consistent and safer outcomes for victim-survivors.
Australian Government: Attorney General’s Department, ’Consultation on Exposure Draft – Family Law Amendment Bill (No. 2) 2023’.
“The Government is committed to improving the family law system so that it is accessible, safer and delivers justice and fairness for all Australian families. The Government has considered the recommendations of the recent inquiries and the views of many individuals and groups. On 29 March 2023, the Family Law Amendment Bill 2023 was introduced into the Australian Parliament to progress important children and parenting related reforms to the family law system. The exposure draft Family Law Amendment Bill (No. 2) 2023 (the exposure draft) contains a second tranche of reforms focussed on improving the law for parties with family law property disputes, and in particular to expressly recognise family violence as part of a property settlement. The exposure draft also proposes a range of amendments to improve and enhance other areas of family law.”
Australian Government, Attorney-General’s Department website.
Australian Government: Attorney General’s Department, ‘Family Law Information Sharing’.
“Children, families and individuals affected by family violence, child abuse or neglect often interact with both the federal family law system and state and territory systems and agencies responsible for responding to family violence and child protection. It is important that decision makers across these systems have timely access to family safety information to support informed decision-making to protect and promote the best interests and safety of any children, their families and individuals impacted by family violence or child-abuse risk.
We are working in partnership with the Family Violence Working Group, a sub-committee of the Standing Council of Attorneys-General, on several projects to improve collaboration between these systems to streamline processes and practices.”
Australian Government, Attorney-General’s Department, Guide for applicants - Applying for the return of a child under the Hague Convention.
The guide helps applicants to understand what requirements must be satisfied to meet the terms of the convention.
Australian Government, Attorney-General’s Department, Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. The Australian Central Authority in the Attorney-General's Department is responsible for administering the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Australian Central Authority is only able to provide assistance in relation to children in a Hague Convention country, and the Hague Convention is in force between Australia and that country.
The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the countries listed on this website.
Australian Government, Attorney-General’s Department, International family law and children.
This page provides information on the Hague Convention and links to resources for people in Australia, including:
•
International parental child abduction—find out what you can do if your child has been, or may be, abducted to another country.
•
International child access—find out how to make an application for access to a child under the Hague Child Abduction Convention or Australia's bilateral agreements with Egypt and Lebanon.
•
Registration of overseas child orders—find out how to have overseas child court orders registered in Australia, or Australian orders registered in other countries.
•
Information for responding parents—information for parents who have brought their child to Australia and may need to respond to a Hague Convention application for the return of their child to another country. Also, information if you are required to return your child to Australia by a court order or if you are voluntarily returning your child to your home country (habitual residence), including information on emergency housing, financial assistance, counselling and support services.
•
International child protection—for information on the 1996 Hague Child Protection Convention.
•
Support and assistance—contact details and links to organisations that can provide support in Hague matters.
Australian Government, Attorney-General’s Department, International parental child abduction.
This site provides information on international parental child abduction including:
•
If your child has been abducted from Australia—what should you do?
•
Application process for the return of an abducted child to Australia
•
Bilateral agreements with Egypt and Lebanon
•
If your child is at risk of being abducted from Australia:
◦
Stopping your child leaving Australia
◦
Preventing the issuing of a passport to your child
◦
If you are thinking of taking your child overseas
•
Hague Convention application statistics
It also includes the following diagram of the application process for return of an abducted child to Australia:
Australian Government: Attorney General’s Department, National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (National Framework).
The National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (National Framework) is an agreement for nationally consistent, two-way information sharing between the federal family law courts and state and territory courts, child protection, policing and firearms agencies.
The National Framework was endorsed by Attorneys-General on 12 November 2021, at the then Meeting of Attorneys-General.
The primary objective of the National Framework is to promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect while supporting informed and appropriate decision-making in circumstances where there is, or may be, a risk of family violence, child abuse or neglect.
The National Framework responds to recent inquiries into the family law and family violence systems that identified the need for better information sharing between the family law system and state and territory family violence and child protection systems. The National Framework will build on the success of the Co-location Program to remove barriers to information sharing and eliminate gaps between these intersecting systems.
Department of Social Services: National Plan to Reduce Violence against Women and their Children – Co-location of State and Territory child protection and other officials in Family Law Court Registries. Open via website.
This initiative has funded the co-location of 16 child protection officials and 6 policing officials at family law court registries until 30 June 2025. It’s intended outcomes include:
The intended outcomes of this program include:
•
a more coordinated response to family safety issues (demonstrated in part by the sharing of data relating to information or intervention requests in matters where child abuse is suspected or alleged)
•
judicial officers being able to make decisions with full knowledge of prior involvement by child protection and law enforcement agencies
•
strengthened judicial decision-making, with family safety risks identified and addressed earlier in family law proceedings
•
improved inter-jurisdictional understanding and cooperation, leading to better information sharing practices.
Explanatory Memorandum to the Family Law Amendment Bill 2023.
Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles (4 ed, 2016).
The Family Violence Best Practice Principles was developed in 2016, prior to the commencement of the Federal Circuit and Family Court of Australia. The current issue does not reflect the recent structural changes to the Courts. A new version is currently being developed and will be available in 2022.
The Family Violence Best Practice Principles are applicable in all cases involving family violence or child abuse (or the risk of either) in proceedings before courts exercising jurisdiction under the Family Law Act 1975 (Cth) (FLA).
The latest edition reflects the extensive powers of the judiciary in regard to the cross-examination of vulnerable witnesses by alleged perpetrators of family violence. For example, in child-related proceedings, the power to make orders limiting, or not allowing, cross-examination of a particular witness (Section 69ZX(2)(i) FLA)* and/or to, with forewarning, refuse permission to continue cross-examination.
The Statement of Principle on pp. 4-5 provides inter alia that:
‘These Best Practice Principles have been developed by the [former] Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA). They contribute to furthering the courts’ commitment to protecting children and any person who has a parenting order from harm resulting from family violence and abuse.
The Best Practice Principles recognise:
•
the harmful effects of family violence and abuse on victims
•
the place accorded to the issue of family violence in the FLA and
•
the principles guiding the Magellan case management system for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children.
The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA (FCA and FCCA). They provide useful background information for decision makers, legal practitioners and individuals involved in these cases…
Ensuring the safety of a child is central to all determinations of what is in a child’s best interests.
The courts aim to protect children and family members from all forms of harm resulting from family violence and abuse.
All persons attending courts exercising family law jurisdiction are entitled to be safe and the courts will take all appropriate steps to ensure the safety of their users. This includes the creation of an individually tailored safety plan where appropriate.
A safety plan is a document that can be varied at any time and which includes a variety of options available to a person to ensure their safety at court. These include attendance by electronic medium, attendance with support persons, staggered attendances, use of security entrances and, where necessary, security personnel. All court staff are able to prepare a safety plan. Safety planning is one of the strategies that may be implemented to ensure that a person who fears for their safety remains protected from harm. A safety plan for attendances at court events is but one component of safety planning that needs to be incorporated into the individual’s overall plan for their safety.’
*This provision is mirrored in Section 202L Family Court Act 1997 (WA)
Family Court of Western Australia – Counselling and Consultancy Service. Open via website.
Includes information regarding:
•
Child-related proceedings
•
Family reports
•
Case assessment conferences
Family Court of Western Australia – Forms and resources.
This resource has links to Forms, Information Kits and Brochures and Legal Resources for use in the Family Court of Western Australia.
Family Court of Western Australia, Practice Direction (No. 1 of 2014).
This practice direction contains discussion of procedural issues relating to information sharing protocols between the Family Court of Western Australia and the Department for Child Protection and Family Support. These protocols, ‘provide an important mechanism for gathering evidence in child-related proceedings’.
To be read with Practice Direction (17 July 2014).
Family Court of Western Australia - Recovery orders. Open via Family Court of Western Australia website
Self Represented Litigants Handbooks (2019). Open via website.
These handbooks are published by the Family Court of Western Australia and include information about property and children’s cases.
These booklets are designed to help those people who do not have a lawyer to present their cases in the Family Court of Western Australia.
They are not a substitute for legal advice, but it is hoped the information provided will make it easier for people to navigate through the court system.
It is expected that each party who does not have a lawyer will have tried their best to become familiar with the booklets before coming to Court.
Both handbooks contain practical advice for self-represented litigants in the Family Court of Western Australia about matters including: information about the court; preparing for trial; trial processes; filing documents and the relevant law.
Family Relationships Online – Family Dispute Resolution.
Family Relationships Online, an Australian Government initiative, provides all families (whether together or separated) with access to information about family relationship issues, ranging from building better relationships to dispute resolution. It also allows families to find out about a range of services that can assist them to manage relationship issues, including agreeing on appropriate arrangements for children after parents separate.
Family Relationships Online maintains details in the FDR Register (the Register), for administrative purposes only, of those practitioners accredited under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. Courts that deal with family law matters, such as the Federal Circuit and Family Court of Australia and the Family Court of Western Australia will be authorised to access some information in the Register to verify that certificates are issued under section 60I of the Family Law Act by accredited FDR practitioners. The courts will have access to the names of practitioners included on the Register, the organisation for which they provide services (if any) and the registration number of the practitioner.
Family Violence Plan - Former Family Court of Australia and Federal Circuit Court of Australia – April 2019.
Open via Federal Circuit and Family Court of Australia website.
The Family Violence Plan was developed in 2019, prior to the commencement of the Federal Circuit and Family Court of Australia. The current issue does not reflect the recent structural changes to the Courts.
The Plan ‘builds on the important work undertaken by the courts under the 2014-16 Plan and reflects the ongoing commitment of the courts to addressing family violence in all areas of operation’. Along with including the measures contained in the joint Family Violence Best Practice Principles, the Plan ‘contains actions for the administration of the courts, and for decision makers, legal practitioners, service providers and others involved in the family law system.
The Plan sets out three priority areas, each of which has defined goals, identified actions and timelines: protection from family violence; safety at court; and information and communication.
The Plan reflects contemporary understandings of the aetiology, dynamics and effects of family violence, informed by social science research. It has been developed in the context of the ongoing commitment of the Government to address and eradicate family violence.’
See in particular at p 2, ‘The courts recognise the close connection between family breakdown and violence, and the detrimental impact on both adult victims and children living with family violence. Protecting family members, and particularly children, from the effects of family violence is central to all determinations of what is in a child’s best interest. Ensuring the safety of all people engaged in the family law system, including when attending court, is also a high priority for the courts.’
Federal Circuit and Family Court of Australia – About the Court. Open via the Federal Circuit and Family Court of Australia website.
This webpage outlines the anticipated benefits of the new Court structure.
The Court now “comprises two divisions:
•
Division 1 (a continuation of the Family Court of Australia) deals with family law matters. Division 1 has 35 specialist family law judges hearing both trials and appeals.
•
Division 2 (a continuation of the Federal Circuit Court of Australia) deals with family law, migration and general federal law matters. Division 2 has 76 judges; 55 of which are specialists in family law and the remainder experts in various areas of general federal law and migration.
The Court will operate under the leadership of one Chief Justice with the support of one Deputy Chief Justice, who each hold a dual commission to both Divisions of the Court. A second Deputy Chief Judge assists in the management of the general federal law and Fair Work jurisdictions of Division 2.”
Federal Circuit and Family Court of Australia, Annual Report of the Federal Circuit and Family Court of Australia (Division 1) & Annual Report of the Federal Circuit and Family Court of Australia (Division 2) (Annual Reports 2021-22).
This report covers the performance and activities of the FCFCA during the 2021-22 financial year. The report is divided into two sections, corresponding to Division 1 and Division 2 of the new Court.
•
Division 1 primarily handles family law matters, including divorce, parenting, and property disputes. The report overviews the Court's structure, key activities, case management improvements, and significant changes or innovations implemented during the year. It also includes performance metrics and statistical data on case outcomes and processing times.
•
Division 2 handles both family law and general federal law cases, including administrative and migration law, as well as bankruptcy. This section outlines the Court's achievements, initiatives to enhance accessibility and efficiency, and collaboration with other legal and community organisations.
Federal Circuit and Family Court of Australia, Application for Consent Orders (do it yourself kit).
Part H of this document deals with details for property or maintenance orders. It notes that ‘the Court may refuse to make the financial orders you seek if the proposed orders are not just and equitable’.
Federal Circuit and Family Court of Australia – Australian Standards of Practice for Family Assessments and Reporting – February 2015. Open via website.
The Australian Standards of Practice for Family Assessments and Reporting was developed in 2015, prior to the commencement of the Federal Circuit and Family Court of Australia. The current issue does not reflect the recent structural changes to the Courts.
Federal Circuit and Family Court of Australia (2021) - Children: Recovery orders.
Information on this page includes:
•
What is a recovery order?
•
Who can apply for a recovery order?
•
How do I apply for a recovery order?
•
How is a recovery order implemented?
•
What is a location order?
•
How do I apply for a location order (including a Commonwealth information order)?
•
What is a publication order?
•
My child has been taken overseas without my permission.
Federal Circuit Court and Family Court of Australia, Children: Relocation, travel and the Hague Convention.
This fact sheet contains links to the Commonwealth Attorney General’s Department information on the Hague Convention on the Civil Aspects of International Child Abduction and advises:
If a child you have parental responsibility for has left Australia without your permission, you should contact the Commonwealth Attorney-General’s Department on 1800 100 480 or go to International parental child abduction for more information.
For a list of applicable countries, and more information about the Hague Convention, see the Hague Convention page on the website of the Commonwealth Attorney-General’s Department.
If your child is in another country, you may want to seek private legal advice in that country about your options. The Department of Foreign Affairs and Trade may be able to assist left-behind parents in accessing an English-speaking lawyer in a non-Hague country.
Federal Circuit and Family Court of Australia – Children: Safety and Risk. Open via website
This webpage contains information about requirements to notify the Court about family violence and child abuse, family violence orders, risk assessment, Lighthouse, staying safe at court and getting help and support.
Federal Circuit and Family Court of Australia – Court-based dispute resolution in the Federal Circuit and Family Court of Australia (September 2021).
Open via website.
This factsheet outlines the practical measures the Court will take to fulfil the Court’s overarching purpose ‘to facilitate the just resolution of disputes a) according to law and b) as quickly, inexpensively and efficiently as possible’.”
“The Court’s new case management pathway, and particularly the events which are conducted by judicial registrars in court lists and in dispute resolution, is designed to focus parties on potential areas of agreement, and move towards a final resolution of all issues as safely as possible, and without the impact, stress and expense of protracted family law litigation.”
“Not all matters are appropriate for dispute resolution including those where there are significant allegations of risk of harm including as a result of domestic and family violence, drug and alcohol abuse and/or coercive control. In all cases, very careful consideration will be given to whether or not a dispute resolution conference is appropriate.”
Federal Circuit and Family Court of Australia – Court Children’s Service. Open via website.
Federal Circuit and Family Court of Australia – Family Consultants FAQs. Open via website.
Federal Circuit and Family Court of Australia – Family DOORS Triage. Open via website.
Federal Circuit and Family Court of Australia – Family Reports FAQs. Open via website.
Family violence and children (2021).
Open via Federal Circuit and Family Court of Australia website.
This webpage provides information about the effects of family violence on children and parenting behaviours, the protective factors for children, and risks to children on separation. It also provides contact details for help and advice organisations.
It states – “Examples of situations that may constitute a child being exposed to family violence include (but are not limited to):
•
overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family, or
•
seeing or hearing an assault of a member of the child’s family by another member of the child’s family, or
•
comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family, or
•
cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family, or
•
being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”
The long-term impact of family violence on children is also discussed, and examples of the impacts of family violence on babies and toddlers, school-aged children and adolescents are listed.
Federal Circuit and Family Court of Australia – Family Violence Information Sheet (September 2021). Open via website.
This information sheet contains important information for litigants who allege they have experienced, or are alleged to have perpetrated, family violence, including safety at court, legal and support services at court, and cross-examination.
Federal Circuit and Family Court of Australia – Family Violence: Overview. Open via website
This webpage outlines the principles which guide the FCFCA’s response to family violence, behaviours which may constitute family violence, coercive and controlling behaviours which may amount to family violence and common forms of family violence.
It also contains links to information on:
•
Help and support;
•
Frequently asked questions; and
Federal Circuit and Family Court of Australia – Federal Circuit and Family Court of Australia, Finances and property: Overview.
This webpage published by the Family Court provides general information on property and finances after separation.
Federal Circuit and Family Court of Australia – Lighthouse. Open via website.
This document explains the role of Lighthouse in the Court’s response to cases which may involve family violence.
“The Courts are leading the way in helping families that have experienced family violence and other safety risks to navigate the family law system. Lighthouse plays a central role in the Court’s response to cases which may involve risk relating to family violence, mental health, drug and alcohol misuse and child abuse and neglect, by shaping the allocation of resources and urgency given to such cases.”
The three parts of Lighthouse are:
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Screening (using the Family DOORS Triage risk screening process);
•
Triage and case pathways; and
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Case management (including referral to the specialist Evatt List in certain registries).
Lighthouse operates in the family law registries in Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong.
Federal Circuit and Family Court of Australia – – Media Release: New Court Initiatives Help Uncover Higher Prevalence of Family Violence and Other Risks’, (Media Release, 10 November 2021) 2.
T“The Federal Circuit and Family Court of Australia (the Court) is undertaking world-leading initiatives that have helped uncover concerning data about the widespread prevalence of family violence and other risk factors in family law cases.
In addition to court data showing approximately 80% of family law cases allege at least one major risk factor (including family violence), we now know that around 50% of high risk matters screened as part of the Court’s Lighthouse Project, contain four or more major risk factors. This is significantly higher than previously reported.
Initial court data at the point of filing reveals that:
•
54% of parties allege a child has been abused or is at risk of abuse
•
64% of parties allege they have experienced family violence
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57% of parties allege a child has experienced family violence
•
39% of parties allege that drug, alcohol or substance misuse has caused harm or poses a risk of harm to a child
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40% of parties allege that the mental ill-health of a party has caused harm or poses a risk of harm to a child.”
Federal Circuit and Family Court of Australia – Parental conflict and its effect on Children (September 2021). Open via website.
This fact sheet provides information for parents about the ways family conflict affects children, both in families who live together and in families who have separated.
In families where there is a high level of conflict and animosity between parents, children are at a greater risk of developing emotional, social and behavioural problems, as well as difficulties with concentration and educational achievement.
Frequent and intense conflict or fighting between parents also has a negative impact on children’s sense of safety and security which affects their relationships with their parents and with others. Parental conflict that focuses on children is also linked to adjustment problems, particularly when children blame themselves for their parents’ problems.
‘Good quality parenting’, that is parenting that provides structure, warmth, emotional support and positive reinforcement, has been found to reduce the impact of conflict.
[Former] Federal Circuit Court of Australia - Reconciliation Action Plan 2019-2021.
Open via Federal Circuit and Family Court of Australia website.
This document explains the jurisdiction of the Court, including its family law jurisdiction, and the Court’s aspirations for engagement with Aboriginal and Torres Strait Islander people. The Plan ‘provides a platform to introduce measures to promote reconciliation and addresses some of the barriers faces by Aboriginal and Torres Strait Islander peoples in interacting with the Court. In doing this, the Plan provides four focus areas for the Court: relationships; respect; opportunities; and tracking progress.
Federal Circuit and Family Court of Australia, The Impact of Family Violence on Children. Open via Federal Circuit and Family Court of Australia website.
The fact sheet outlines how children experience family violence, how family violence effects parenting, other ways children can be impacted by family violence and factors which can help protect children from the impacts of family violence.
The fact sheet notes – ‘Growing up in an environment where family violence is perpetrated can have a profound impact on a child’s life. In addition to risks of physical harm, family violence can impact a child’s wellbeing in a number of areas:
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Behavioural
•
Emotional
•
Social
•
Developmental
•
Educational’
Further ‘The risks to children do not necessarily stop following the separation of the parents. Family violence can continue to b perpetrated after parents separate, and for many families separation is a time at which family violence can escalate. In some families, separation is the time at which family violence can commence.’
Guidelines for Independent Children’s Lawyer (2021).
This document is intended to provide guidance to the Independent Children's Lawyer (ICL) in fulfilling his/her role. The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the family law courts, with information about the courts' general expectations of ICLs. The Guidelines set out these expectations as they relate to children in circumstances where allegations of child abuse and/or family violence are made, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Strait Islander children, and where applications arise for the authorisation of special medical procedures and other orders relating to the welfare of children.
See in particular at section 6.4 (p 6) –
‘The ICL is to remain independent, objective and focused upon promoting the child's best interests in all dealings throughout the proceedings. The parties and their legal representatives should be encouraged to be non-adversarial where possible and to maintain a focus on the child's best interests. The ICL should promote this approach whenever appropriate.’
Legal Aid Western Australia – Independent Children’s Lawyer information sheet. Accessible via website.
Legal Aid Western Australia – Independent Children’s Lawyers, About.
Includes information about the role of Independent Children’s Lawyers and links to information brochures for children, parents and potential supervisors.
National Strategic Framework for Information Sharing between the Family Law and Family Violence Child Protection Systems. (webpage).
This Framework supports the appropriate and timely two-way information exchange between the Federal Circuit and Family Court of Australia and the Family Court of Western Australia (the family law courts) on the one hand, and state and territory courts, child protection, policing, and firearms agencies on the other.
Section 60I Certificates Fact Sheet – website.
This Fact Sheet outlines general information about certificates issued under Section 60I of the Family Law Act 1975 (Cth) and the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. It includes information about the:
1.
Certificate template
2.
Purpose of 60I certificates
3.
Types of certificates
4.
Issuing of certificates
5.
Time frame for issuing certificates
6.
Revocation of certificates.
What is an Independent Children’s Lawyer?
A brochure accessible via:
Why am I going to see a family consultant ?
It is common for victims of domestic violence to seek to move away from the geographical location where the abusive partner resides in an attempt to ensure their safety and their children’s safety and escape the coercive controlling behaviours of their abuser. In addition, a perpetrator of family violence may seek to, or threaten to, relocate the residence of the children to exert control over or “punish” the abused partner. Such relocation may be proposed or unilaterally undertaken, and may involve relocation to intrastate, interstate or international locations.
Where parents are unable to reach agreement as to whether one party may change the place of residence of their child or children to another town, state or country, they may apply under the Family Law Act 1975 (Cth) (FLA) or the Family Court Act 1997 (WA) (FCA) to have the matter determined by the Federal Circuit and Family Court of Australia or the Family Court of Western Australia (collectively called here “the family courts”).
In Western Australia where relocation is allowed the presumption of shared parental responsibility is rebutted. (Note: the Family Law Amendment Act 2023 (Cth) removed the presumption of equal shared parental responsibility from the FLA – see discussion in Court-based parenting outcomes).
Orders enjoining a parent, as opposed to a child, from relocating or to relocate are rare and should only be made to the extent “necessary to secure the best interests of the child” (Sampson & Hartnett (No. 10)[2007] FamCA 1365 (22 November 2007) per Bryant CJ and Warnick J at 58). (See also AMS v AIF[1999] HCA 26; 199 CLR 160; 163 ALR 501; 73 ALJR 927 (17 June 1999) at [145], [191], [47] and U v U[2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002) at [144]-[145]).
If parties cannot agree, they can ask the Court to make parenting orders, including:
•
an order which allows the party to relocate with the child/ren or
•
an order prohibiting the other party from relocating the child’s residence outside of a certain area (for example, that the child’s residence is not to be further than 30 kilometres from the child’s current school, or that the child’s residence is to be within a specific metropolitan area).
The Court may also make a recovery order where a party has unilaterally changed the place of residence of a child or children, requiring the return of the child.
Where allegations of domestic or family violence or child abuse are made, applications for orders allowing or prohibiting relocation are decided in the same manner as other parenting applications where there are allegations of family violence or child abuse; there is not a specific subcategory of application related to relocation (see Cowley & Mendoza[2010] FamCA 597 (16 July 2010)).
The best interests of the child are always the paramount consideration (section 60CA FLA; section 66A FCA).
In determining a child’s best interests the Family Court of Western Australia must consider the need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence (which is given greater weight than the benefit to the child of a meaningful relationship with both parents - section 66C FCA. The Family Court of Western Australia is also required to consider the risk of family violence (section 66G FCA).
The Federal Circuit and Family Court of Australia is no longer required to consider “meaningful relationships with both parents” as a primary factor. The Court must consider all the factors set out in section 60CC(2) and (2A) FLA including:
(2)
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)
the child; and
(ii)
each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)
any views expressed by the child;
(c)
the developmental, psychological, emotional and cultural needs of the child;
(d)
the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)
the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)
anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)
any family violence order that applies or has applied to the child or a member of the child’s family.
The considerations are the same whether the application is to relocate intrastate, interstate or internationally.
Relocation cases can be ‘amongst the most difficult decisions for family court judges’ due to their highly sensitive nature. There is a high incidence of family violence in relocation applications. A 2012 study of litigated relocation disputes characterised 80% of relationships as ‘high conflict or abusive’.
In some cases, family violence is a driving factor behind relocation. For example, in Stringer & Nissen (No 2) , the mother unilaterally relocated to another town to escape family violence by the father without consent to remove the child from the risk of exposure to family violence. The Full Court of the Family Court of Australia overturned interim orders that the parties have equal shared parental responsibility and that if the mother did not return to their prior town and live with the child, the child live with the father). The Full Court found that the interim hearing judge did not appropriately weigh the mother’s allegations of family violence, concerns for the father’s alcohol abuse and an existing protection order when determining the child’s best interests. Furthermore, if family violence was appropriately found, the presumption for equal shared parental responsibility would not have applied, resulting in an alternative parenting outcome in favour of the relocated mother. Ainslie-Wallace J noted that the conclusion that the child’s best interests were to live in the first town was effectively a coercive order which required the mother to return to the father’s place of residence.
In Russell & Russell Young J allowed a mother who alleged a history of violence perpetrated by the father to return with the child to India, despite the father’s stated intention to remain in Australia regardless of the Court’s decision. The mother had limited English skills, poor work prospects and no family support in Australia and there was a high level of conflict between the parties exacerbated by cultural issues. Both parties’ extended families remained in India. Young J found the presumption of shared parental responsibility was rebutted due to the conflict between the parties, their lack of communication and cultural issues. (Note: the presumption of equal shared parental responsibility has since been removed from the FLA but not the FCA – see Court-based parenting outcomes).
A 2016 English study reported that unsuccessful applicants to relocation disputes often felt like courts had “put [their] abuser right back in control” when deciding to increase other-parent contact, rather than allow relocation. In its 2010 report, the Australian Law Reform Commission also noted that victims may not feel safe from violence if they remain proximate to their abuser, or isolated from support systems located elsewhere.
It is common for victims of domestic violence to seek to move away from the geographical location where the abusive partner resides in an attempt to ensure their safety and their children’s safety and escape the coercive controlling behaviours of their abuser. In addition, a perpetrator of family violence may seek to, or threaten to, relocate the residence of the children to exert control over or “punish” the abused partner. Such relocation may be proposed or unilaterally undertaken, and may involve relocation to intrastate, interstate or international locations.
Where parents are unable to reach agreement as to whether one party may change the place of residence of their child or children to another town, state or country, they may apply under the Family Law Act 1975 (Cth) (FLA) or the Family Court Act 1997 (WA) (FCA) to have the matter determined by the Federal Circuit and Family Court of Australia or the Family Court of Western Australia (collectively called here “the family courts”).
In Western Australia where relocation is allowed the presumption of shared parental responsibility is rebutted. (Note: the Family Law Amendment Act 2023 (Cth) removed the presumption of equal shared parental responsibility from the FLA – see discussion in Court-based parenting outcomes).
Orders enjoining a parent, as opposed to a child, from relocating or to relocate are rare and should only be made to the extent “necessary to secure the best interests of the child” (Sampson & Hartnett (No. 10)[2007] FamCA 1365 (22 November 2007) per Bryant CJ and Warnick J at 58). (See also AMS v AIF[1999] HCA 26; 199 CLR 160; 163 ALR 501; 73 ALJR 927 (17 June 1999) at [145], [191], [47] and U v U[2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002) at [144]-[145]).
If parties cannot agree, they can ask the Court to make parenting orders, including:
•
an order which allows the party to relocate with the child/ren or
•
an order prohibiting the other party from relocating the child’s residence outside of a certain area (for example, that the child’s residence is not to be further than 30 kilometres from the child’s current school, or that the child’s residence is to be within a specific metropolitan area).
The Court may also make a recovery order where a party has unilaterally changed the place of residence of a child or children, requiring the return of the child.
Where allegations of domestic or family violence or child abuse are made, applications for orders allowing or prohibiting relocation are decided in the same manner as other parenting applications where there are allegations of family violence or child abuse; there is not a specific subcategory of application related to relocation (see Cowley & Mendoza[2010] FamCA 597 (16 July 2010)).
The best interests of the child are always the paramount consideration (section 60CA FLA; section 66A FCA).
In determining a child’s best interests the Family Court of Western Australia must consider the need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence (which is given greater weight than the benefit to the child of a meaningful relationship with both parents - section 66C FCA. The Family Court of Western Australia is also required to consider the risk of family violence (section 66G FCA).
The Federal Circuit and Family Court of Australia is no longer required to consider “meaningful relationships with both parents” as a primary factor. The Court must consider all the factors set out in section 60CC(2) and (2A) FLA including:
(2)
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)
the child; and
(ii)
each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)
any views expressed by the child;
(c)
the developmental, psychological, emotional and cultural needs of the child;
(d)
the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)
the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)
anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)
any family violence order that applies or has applied to the child or a member of the child’s family.
The considerations are the same whether the application is to relocate intrastate, interstate or internationally.
Relocation cases can be ‘amongst the most difficult decisions for family court judges’ due to their highly sensitive nature. There is a high incidence of family violence in relocation applications. A 2012 study of litigated relocation disputes characterised 80% of relationships as ‘high conflict or abusive’.
In some cases, family violence is a driving factor behind relocation. For example, in Stringer & Nissen (No 2) , the mother unilaterally relocated to another town to escape family violence by the father without consent to remove the child from the risk of exposure to family violence. The Full Court of the Family Court of Australia overturned interim orders that the parties have equal shared parental responsibility and that if the mother did not return to their prior town and live with the child, the child live with the father). The Full Court found that the interim hearing judge did not appropriately weigh the mother’s allegations of family violence, concerns for the father’s alcohol abuse and an existing protection order when determining the child’s best interests. Furthermore, if family violence was appropriately found, the presumption for equal shared parental responsibility would not have applied, resulting in an alternative parenting outcome in favour of the relocated mother. Ainslie-Wallace J noted that the conclusion that the child’s best interests were to live in the first town was effectively a coercive order which required the mother to return to the father’s place of residence.
In Russell & Russell Young J allowed a mother who alleged a history of violence perpetrated by the father to return with the child to India, despite the father’s stated intention to remain in Australia regardless of the Court’s decision. The mother had limited English skills, poor work prospects and no family support in Australia and there was a high level of conflict between the parties exacerbated by cultural issues. Both parties’ extended families remained in India. Young J found the presumption of shared parental responsibility was rebutted due to the conflict between the parties, their lack of communication and cultural issues. (Note: the presumption of equal shared parental responsibility has since been removed from the FLA but not the FCA – see Court-based parenting outcomes).
A 2016 English study reported that unsuccessful applicants to relocation disputes often felt like courts had “put [their] abuser right back in control” when deciding to increase other-parent contact, rather than allow relocation. In its 2010 report, the Australian Law Reform Commission also noted that victims may not feel safe from violence if they remain proximate to their abuser, or isolated from support systems located elsewhere.