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.
Issues of family violence and child abuse have a prominent place in the Family Law Act 1975 (Cth) and, in particular, in Part VII which concerns children.
In 2011, the definition of family violence in the Family Law Act was expanded to incorporate notions of coercion and control (which are not always accompanied by physical violence or threats). 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. The Family Law Act contains a range of provisions designed to protect parties and children from family violence.
Section 4(1) of the Family Law Act states as follows:
Abuse, in relation to a child, means:
- an assault, including a sexual assault, of the child; or
- a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is an unequal power in the relationship between the child and the first person; or
- causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
- serious neglect of the child.
A family violence order is an order (including an interim order) made under a prescribed law of a state or territory to protect a person from family violence.
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful; and
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (Section 4AB).
The courts have adopted this description of the elements of violence:
Examples of behaviour that may constitute family violence include (but are not limited to):
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
- 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.
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.