Concerned about your children’s safety and the danger of harm
If there is a parenting order and you believe your children are in danger of abuse, such as physical violence or sexual abuse or that their health and safety is threatened, then you can temporarily refuse to allow the children to see the other parent. Seek legal advice immediately, preferably before you suspend the time that your children are spending with the other parent.
For orders to be varied or suspended the court must be satisfied that there is a risk to children. Clear and tangible evidence or the risk must be provided to the court. Evidence of risk of harm is essential. It is not sufficient for a parent to seek to vary or suspend a child’s time iwth the other parent on the basis of a ‘concern’ or ‘worry’ that a thing could happen.
If you believe your children have been or are being abused you could contact the Child Protection Services or the police, although it is very important to seek advice before taking this step so that you are informed of your rights and the processes that may begin as a result of reporting abuse. The Child Protection authorities should investigate the allegations of abuse. They may involve the police and/or a doctor in the investigation.
Information provided by Brisbane Women’s Legal Centre ‘Separation: A Guide for women’ Separation book
Standard of proof
The decision of a judge or federal magistrate in family litigation must be evidence based. The more serious the allegation or more improbable the supposed event, the stronger the evidence has to be before a court concludes that the alleged event occurred. Except for more serious contraventions or contempt, a party must prove the allegations or facts relied on to the court’s satisfaction on what is called ‘the balance of probabilities’. The alleged fact must be more than merely possible; it must be more likely to exist than not. Thus, where the allegation is that one party has not complied with a court order, the alleging party (the applicant in a contravention case) must establish that it is more likely than not that the alleged breach occurred.
In the most serious contraventions, including contempt, a court will not find the case proved unless it is satisfied that all the essential facts have been established ‘beyond reasonable doubt’. This is the same standard required in criminal matters. In general terms it, means that the truth of the allegation must be the only reasonable explanation for what has occurred.
What form do I use?
The Family Law Courts comprise the Federal Circuit Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include, for example if the children’s issues in your case involve a child welfare agency and/or allegations of serious sexual abuse (Magellan cases), severe family violence or mental health issues with other complexities, multiple parties, complex cases where orders sought have the effect of preventing a parent from communicating with or spending time with a child, multiple expert witnesses, complex questions of law and/or special jurisdictional issues , international child abduction under the Hague Convention, international relocation or special medical procedures.
All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly. The forms you must use and the processes you must follow depend on which Court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the ‘Forms’ section of the Family Law website, call 1300 352 000 or visit a family law registry near you.
You may prefer to seek legal advice before choosing the court in which to file your application. Before filing any documents at a family law registry, make sure you complete the documents correctly. The accuracy of documents is your responsibility.
Attendance at court
If you are the person alleged to have contravened a parenting order and do not attend the court hearing, orders may be made in your absence, including an order for your arrest.
You can attend in person or ask a lawyer to represent you. If you cannot attend the court hearing in person, you can request to appear by telephone or videolink. You will need to make this request well before the court hearing and explain why you cannot attend in person. For more information about this, speak to staff by calling 1300 352 000 or visiting a family law registry near you.
Definitions of child abuse
Physical Abuse: All non-accidental physical injuries including; shaking, slapping, bruising, biting, punching, scalding, burning, biting, poisoning, near drowning, throwing a child and strangulation. Inflicting physical harm by beating, hitting, punching, kicking, biting, burning, or any other act that causes physical pain. This type of abuse can be caused by over-discipline or punishment that is inappropriate for the child’s age and size.
Sexual Abuse: Sexual abuse is probably the most underreported form of child abuse. This includes fondling, penetration, intercourse, exploitation, pornography, exhibitionism, child prostitution, group sex, oral sex, or forced observation of sexual acts (for more information view the sexual abuse page)
Child Neglect: Failure to provide for a child’s basic needs, love and affection stimulation, safety, nourishment, clothing, personal hygiene, warmth and medical care, Physical, educational, or emotional. These can include refusal of or delay in seeking health care, poor nutrition, abandonment, expulsion from home or not providing shelter, and inadequate supervision.
Emotional or Mental Abuse: Includes depriving a child of love, warmth and attention. Rejecting, excessive teasing, ignoring a child. Inattention to a special educational need, permission of drug or alcohol use by minors, and failure to provide needed or prescribed psychological treatment. This form of abuse can cause serious disorders and ranges from extreme forms of punishment to making fun of a child’s appearance, medical conditions, or handicaps. Belittling, scapegoating, mind games, threatening, ignoring, shaming, and name-calling name, negative comparisons to others, telling them they are “bad, no good, worthless” or “a mistake”, not saying “I love you” are all types of emotional abuse.
Domestic violence is a serious form of emotional abuse.