Last updated 27 August 2018
There is often a need to resolve parenting issues at the same time as there is an application for a domestic violence order.
Orders about parenting arrangements after separation are made in the Federal Circuit Court or the Family Court of Australia pursuant to the Family Law Act 1975 (Cth) (Family Law Act).
Domestic violence orders are made in state-based magistrates courts pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act).
How the Domestic and Family Violence Protection Act interacts with the Family Law Act
Both pieces of legislation recognise the interrelationship of domestic and family violence and associated parenting issues. The DFVP Act acknowledges this interrelationship and the courts must have regard to a family law order and consider whether to revive, vary, discharge or suspend the order when making or varying a domestic violence order (s 78). The DFVP Act makes clear that the court must not diminish the protection given by the domestic violence order to facilitate the family law order. The Family Law Act recognises the state domestic violence jurisdiction by giving them power to review family law orders.
Parenting orders that are made under the Family Law Act will override any inconsistent conditions in a domestic violence order because federal laws override state laws. To remedy this situation, s 68R of the Family Law Act provides state courts, including Queensland magistrates courts, with the power to amend parenting orders to remove inconsistencies between the family law order and the domestic violence order to ensure that an aggrieved and their children are protected from violence. The DFVP Act specifically refers to s 68R of the Family Law Act and directs the court to consider making, suspending or varying parenting orders to ensure that they are consistent with the relevant protection order (s 78).
Domestic violence and the Family Law Act
The Family Law Act acknowledges domestic and family violence (referred to as family violence) and its relationship with parenting orders by:
- providing a broad definition of family violence and abuse
- directing a court to give the greatest consideration or weight to the need to protect a child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A))
- requiring advisors (including lawyers) to advise their clients that the best interests of the child is the paramount consideration when deciding how to resolve a parenting dispute. Where the child is at risk of harm, the advisor has to instruct parents that this should be given greater weight over the benefit of a meaningful relationship with both parents (s 60D)
- requiring parties to parenting disputes to file a Notice of Abuse in every case where family violence is alleged outlining any allegations about the existence of family violence or child abuse (s 67ZBA)
- improving the ability of child protection services to participate in family law proceedings
- referring to the United Nations Convention on the Rights of the Child as an object of Part VII.
The definition of family violence in s 4AB of the Family Law Act is broad and refers to ‘… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful …’.
Examples of violent behaviour in the Family Law Act include:
- assault, sexual assault or sexually abusive behaviour
- intentional damage or destruction of property
- intentional cause of death or injury to an animal
- derogatory taunts
- socially, culturally and financially controlling behaviour.
The requirement that the behaviour of the perpetrator must be coercive or controlling is not an element of the definition of domestic violence in the DFVP Act.
The Family Law Act also provides that a child is exposed to family violence if they see or hear family violence or otherwise experience the effects of family violence. Examples include:
- seeing or hearing an assault on the family member
- cleaning up a site after a member of the child’s family has intentionally damaged property
- being present when police or ambulance officers attend an incident
- overhearing threats of death or personal injury to a family member.
The Family Law Act definition of ‘abuse’ also includes reference to family violence. It states that abuse means causing a child to suffer serious psychological harm including being subjected or exposed to family violence (s 4(1)).
In addition to the existing provision that the court is required to consider whether a domestic violence order has been made when determining what is in the best interests of the child, a family court is now required to look at the nature of the order, the circumstances in which the order was made, any findings by the court and anything that has been admitted in proceedings for the order, any findings made by the court and any other relevant matter (s 60CC(3)(k) Family Law Act).