The Australian Government’s announcement of a Joint Parliamentary Committee to conduct a wide-ranging inquiry into the family law system has caused much controversy. Senator Hanson, co-chair of the inquiry, has already made the news over comments implying women who report domestic violence (known as family violence in the family law system) in the context of family law cases are often lying.
The enquiry and controversy doesn’t help those in the midst of separating—whether it’s a de facto relationship separation or a divorce – while dealing with family violence.
In this blog, our family law lawyers share how allegations of family violence are treated by courts in family law disputes.
How does family violence affect parenting orders?
When making parenting orders, the best interests of the child is always the overarching consideration for the Federal Circuit and Family Court of Australia (FCFCOA).
The FCFCOA takes family violence very seriously and where an allegation of family violence is made or there is an existing domestic violence order, the court is guided in its approach by the following principles:
- domestic violence affects everyone in a family, including children;
- the courts are particularly concerned with the immediate and possible long term adverse impacts on a child’s physical and mental wellbeing; and
- even if children do not directly witness the violence, they can still be aware of it and be impacted by it.
In the process of making parenting orders, the court must consider the specific factors set out in s 60CC(2) of the Family Law Act. The court’s primary focus is on the best interests of the child and in making that assessment the court must have regard to each of the factors specified in s 60CC(2), including what arrangement would promote the safety of the child (and each person who has the care of the child) including safety from being subjected to, or exposed to, family violence, abuse or neglect.; The court also considers the benefit to the child of having a relationship with their parents, where it is safe to do so. Other relevant matters include the child’s views, the developmental, psychological, emotional and cultural needs of the child, and any other factor that is relevant to the particular circumstances of a child.
It is important to note that, as of May 2024, the law no longer includes a presumption that both parents should have equal shared parental responsibility. The Family Law Act now focuses solely on the best interests of the child without starting from a presumption that parents should share responsibility or time spent with the child equally.
If the court finds there has been family violence or there is an unacceptable risk of exposure to family violence, it will make orders to protect the child. Often, the court may make interim orders to protect the child, whist more detailed investigations and evidence are obtained in the form of a report from a court child expert or an independent expert who provided a more detailed family report. Such measures could include only permitting a parent to spend supervised time with a child or preventing the parenting spending any time with the child at all in order to protect the child from an unacceptable risk of harm.
Time arrangements are now determined solely by reference to the child’s best interests and safety, without any starting point or requirement to consider equal or substantial and significant time. The court will make orders that it considers best promote the child’s welfare and safety.
Often, the court will appoint an independent children’s lawyer (ICL) to act as the child’s independent lawyer. The ICL’s role is to investigate and make a recommendation to the court about the child’s best interests and the parent’s competing claims.
Is there anything else the court can do?
Courts recognise that family violence can continue to occur 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.
Generally, if you’re involved in a dispute about parenting arrangements, you’ll be required to try to resolve the matter by family dispute resolution. However, if a party has experienced family violence or fears for their safety, a party may be exempt from attending family dispute resolution services before applying to a court for parenting orders.
If you hold a genuine fear about attending a court appointment at the same time or in the same room as your former partner, the court also can make provisions to assist you, such as allowing you to use available safe rooms and provision can sometimes be made for separate entry and exit points.
Parties are obligated to disclose to the Court any family violence orders that apply to a child or a party to the proceedings (including interim and provisional orders). In considering what order to make, the 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 family violence order and does not expose a person to an unacceptable risk of family violence.
In New South Wales, if there is an Apprehended Domestic Violence Order (ADVO) in place, it is important to be aware that, where a parenting order under the Family Law Act is made and it is inconsistent with the ADVO, the parenting order will prevail to the extent of any inconsistency. For example, if a FCFCOA order says a parent is to collect a child from the other parent’s home at changeover, but the ADVO says that parent cannot attend the parent’s home, the FCFCOA order will prevail to allow the parent to attend the home and collect the child without breaching the ADVO.
Section 67ZBB of the Family Law Act requires the Court to take ‘prompt action’ in cases where a person applies for parenting orders and files a Notice of Child Abuse, Family Violence, or Risk of Family Violence. Consistent with recent reforms, the safety of children and parties is now considered paramount at every stage of parenting proceedings.
What happens if someone makes false allegation of family violence?
When asked about the basis of her statements about women making false allegations of violence, Senator Hanson pointed to anecdotal evidence. While the extent of the problem is difficult to gauge, there have been cases that involve a person taking advantage of the family violence protections for their own gain. In the case of Kapicic & Bakal, the mother gave evidence about her child showing disturbing and sexualised behaviour on return from the father’s house.
In this case, the court found the mother’s allegations to be without merit and made with malicious intent. The judge granted the father sole parental responsibility.
However, in a very recent Western Australian case of P v A, a mother admitted at the final hearing that she had made false allegations of family violence and coercive control against the father and apologised. The father submitted that the child should live with him instead of the mother as otherwise the mother would be rewarded for her admitted lies. The Court of Appeal rejected the father’s submission on the basis that the child’s best interests are the paramount consideration in determining whether to make a particular parenting order and whilst the mother’s improper actions were material so far as they impacted on the best interests of child – the suggestion that the court should take the mother’s actions into account to avoid rewarding her was inconsistent with the purpose of the Act regarding parenting orders. The Court stated that ‘punishment’ or ‘enforcement’ are inappropriate in that context.
The court also has the discretion to award costs against a party in family law proceedings pursuant to s 114UB of the Act. Although the usual role is that parties pay their own costs, a party may be ordered to pay the other party’s costs in various circumstances, including based on a party’s conduct in the proceedings. This conduct could include making false allegations of family violence.
False allegations of domestic violence are always going to be a controversial subject. There is no doubt that false allegations of family violence are sometimes made in the family law system. However, it’s a sad reality that the majority of allegations of family violence are true. The courts already have a wide range of powers to make orders dealing with claims of family violence, whether valid or invalid.
Would you like to speak to one of our experienced family law lawyers or a specialist divorce lawyer about your situation? Contact Lawpoint today.
If you’re experiencing domestic violence and need help, call 000 in an emergency or Lifeline (13 11 14) or Australia’s National Counselling service (1800RESPECT).
