Family Violence
What is family violence?
The Family Law Act 1975 (Section 4) defines family violence as:
'conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.'
A note to the definition (Section 4 of the Act) states: ‘A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.’
The Courts (through the Family Court’s Family Violence Strategy) have adopted this description of the elements of violence:
Family violence covers a broad range of controlling behaviours. They are commonly of a physical, sexual, and/or psychological nature, and typically involve fear, harm, intimidation and emotional deprivation. This may include verbal abuse, threats, harassment, intimidation and controlling behaviours, such as limiting access to friends, relatives, finances etc. It occurs within a variety of close interpersonal relationships, such as between spouses, partners, parents and children, siblings, and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family.
Common forms of violence in families include:
 | spouse/partner abuse (violence among adult partners and ex-partners) |
| child abuse/neglect (abuse/neglect of children by an adult) |
| parental abuse (violence perpetrated by a child against their parent), and |
| sibling abuse (violence between siblings). |
Family violence can affect not only a person’s safety, but also:
| their readiness to take action in a family law matter |
| their willingness to come to the Courts |
| their ability to participate in court events, and/or |
| their ability to achieve settlement of their dispute through negotiation. |
For further information see ‘Family violence important safety information’ located under Related Links.
The Family Law Act and family violence
Many sections of the Family Law Act refer to aspects of family violence, including to how courts must protect children from its consequences.
The Family Law Act 1975 (Section 4) defines family violence as:
'conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.'
At a more general level, Section 43(ca) requires a court to have regard to the need to protect individuals from family violence in circumstances of family violence.
Sections 60CC and 60CG refer to factors to be considered by a court when determining what is in the child's best interest. These include:
| family violence involving the child or a member of the child's family, and |
| any family violence order that applies to the child or a member of the child's family. |
A court also must ensure that any orders made:
| have regard to any family violence order, and |
| do not expose a person to an unacceptable risk of family violence. |
Section 60CF deals with informing a court of relevant family violence orders.
Other relevant parts of the Act include:
| Division 11, which concerns: resolving inconsistencies between orders for spending time with children and state family violence orders; ensuring orders for spending time with children do not expose people to family violence; and respecting a child's right to spend time with a parent or other person. |
| Sections 68P and 68Q, which concern court orders for children to spend time with a parent or other person that are inconsistent with an existing family violence order. |
The effects of family violence on children
Extensive research confirms the devastating impact family violence can have on children's lives and their physical and emotional development.
Violence affects children in many ways, whether it is directed at the children or directed at other members of their family and witnessed by the children.
Courts consider family violence when making orders about children. See sections 60CC, 60CF and 60CG of the Family Law Act 1975. Other sections of the Family Law Act that relate to family violence can be found here:
| 43 |
| 60B |
| 60C |
| 60I |
| 60J |
| 60K |
| 61DA |
| 64D |
| 65F |
| 68N |
| 68P |
| 68Q |
| 68R |
| 68S |
| 68T |
| 69ZN |
| 69ZW |
Child abuse allegations
People involved in disputes about the future arrangements for their children after relationship breakdown are required to make a genuine effort to resolve the matter by family dispute resolution.
Section 60J of the Family Law Act sets out circumstances when families do not have to attend family dispute resolution services before applying to a court. The grounds relate to:
| there being a risk of child abuse if there was a delay in applying for an order, or |
| a risk of family violence by one of the parties. |
Section 60K of the Family Law Act requires a court to take ‘prompt action’ in cases where a person applies for parenting orders and files a Form 4 (Notice of Child Abuse or Family Violence) alleging ‘as a consideration that is relevant to whether the court should grant or refuse the application’ that there has been abuse of the child by one of the parties or risk of such abuse if there were to be delay in applying for the order or that there has been or is a risk of family violence by one of the parties. For a copy of Form 4 see Related Links.
In considering the application, a court must consider what interim or procedural orders (if any) should be made:
| to have evidence provided about the allegations, and |
| to protect the child or any of the parties to the proceedings and make orders as the Court considers appropriate. |
Changes to the Family Law Act 1975 phase in requirements for parties to attend family dispute resolution before they apply for parenting orders (except as outlined above), as follows:
Phase one - 30 June 2006 to 30 June 2007: Parties intending to apply for parenting orders must follow pre-action procedures, which include attending dispute resolution, before applying to a court.
Phase two - 30 June 2007 to 30 June 2008: Parties intending to apply for parenting orders must attend family dispute resolution and make a genuine effort to resolve the issue in dispute before applying to a court. A court will not be able to hear an application for a parenting order unless a certificate from an accredited family dispute resolution practitioner is filed with the application.
Phase three – 30 June 2008 and onwards: The phase two requirements will apply to all new and existing applications for parenting orders.
Magellan case management in the Family Court
You can read
more about Magellan case management by going to the page titled
'Family Court of
Australia pathways' in the About Going to Court section
.
Family violence orders
A family violence order (including an interim order) is generally made under a prescribed law of a state or territory to protect a person from family violence.
Family violence orders are called different things in different states such as:
| Protection Orders (QLD & ACT) |
| Apprehended Domestic Violence Order (NSW) |
| Intervention Orders (VIC) |
| Restraining Orders (NT, SA & WA), |
| Restraint Orders (TAS). |
Under the Family Law Act, all state and territory orders are described as family violence orders. Such orders may forbid one parent from coming within a set distance of another parent or stalking or harassing them.
Sometimes the Family Court or Federal Magistrates Court makes an order or an injunction that is inconsistent with the state or territory order (see Sections 68P and 68Q of the Family Law Act). Under the Family Law Act, family violence orders can allow parties to come into contact with each other only for:
| delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or |
| enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings. |
Child protection orders are different to family violence orders. They are made by a state Children's Court when it is believed that a child is in need of protection. However, children can sometimes be included on family violence orders made for a parent.
For information on state legislation and a comprehensive guide to protection orders select Protection Orders in the Website Links menu.
Personal safety
Family violence is a serious social issue that affects everyone in a family - children, parents and other members of the extended family.
The Family Court and Federal Magistrates Court take family violence very seriously. The Courts are guided by the following principles in responding to family violence concerns:
| safety is a right and a priority for all who attend and work at the Courts |
| family violence affects everyone in a family, including children |
| family violence can occur before, during and after separation and it may affect the ability of people to make choices about their family law matter and to take part in court events |
| the Courts have a particular concern about the immediate and possible longer term adverse impacts on children who experience or witness family violence, and |
| even if children do not directly witness the violence, they are often very aware of it. |
In providing help, court staff do not make a judgment about whether family violence has occurred or not. Their aim is to ensure that all clients feel safe when coming to court.
Do you have fears for your safety?
If you have fears for your safety or that of your children, regardless of whether you are attending the Family Court or Federal Magistrates Court, you should contact the police.
If your fears are immediate, ask for urgent help and tell the police if there are guns or other weapons involved. The police are equipped to respond quickly and appropriately.
Most police departments have trained family violence officers who can put your case into a state or territory court and get a family violence order (also called protection, domestic violence or apprehended violence orders) for you. Once such an order is made, the police will respond to and deal with breaches of it.
Do you have fears about attending a court appointment?
If you have any fears about attending a court appointment at the same time or in the same room as your former partner, please tell the Court you are attending as soon as possible. There are safe rooms available in many registries and provision can sometimes be made for separate entry and exit points. You may be able to attend by phone or by video.
Safety measures vary in registries. For full details of what is available, either call the Courts on 1300 352 000 or (if you have been given their number) the person directly managing your case. Do this before attending so arrangements can be made.
Support person or friend
At a conference or other court appointment
If you are not legally represented, you may have a friend or support person attend a Court conference or other court appointment with you. The extent of a support person's involvement in the conference/appointment will be at the discretion of the registrar or family consultant conducting the conference/appointment.
At a hearing
If you have a friend or support person with you, they may sit at the back of the courtroom. Children and young people under 18 are not permitted in the courtroom.
During a hearing, parties who are not legally represented will normally be allowed to have a support person sit with them. The extent of the support person's involvement in the hearing will be at the discretion of the judicial officer.
You must tell the Courts about family violence
You must tell the Courts of any relevant family violence orders as they may affect the court orders, particularly orders about a child spending time with a parent or other person. The Courts must make sure that orders do not expose people to family violence.
If you do not tell a court about a family violence order, it may unknowingly make a parenting order that may put the person who has been granted the family violence order at risk of violence.
When a court knows about a family violence order, it can make parenting orders that take the order into account. For example, it can arrange for an independent person to be present during hand-over times or order that the time the child spends with a parent or other person takes place at a children's contact centre.
Information on the Family Violence Strategy
The brochure ‘Family Violence – Important safety information’ summarises safety policies at the Courts. To view the brochure go to the Publications section of the family law website, call 1300 352 000 or visit a family law registry near you. Translations (in 10 languages) are also available in the Publications section.
Indigenous family violence
The Family Court employs six Indigenous family liaison officers to promote access to justice for Aboriginal and Torres Strait Islander people in the jurisdiction of family law. The Indigenous family liaison officers aim to achieve this by helping Indigenous people access and use the child dispute services provided by the Courts. They also seek to assist the Courts to adapt their processes and operations to better meet the specific needs of Indigenous families in conflict on issues of children, family breakdown and separation.
The role of the Indigenous family liaison officers is to:
| provide Indigenous clients with helpful information about the Courts |
| assist Indigenous clients to tell their story when dealing with other Court staff |
| educate Court staff about Indigenous culture and the needs of Indigenous families |
| assist staff in responding to the needs of Indigenous clients |
| provide support, assistance and advice to Indigenous clients when appropriate, and |
| provide information about local resources and refer people to other agencies as appropriate. |
