Last updated 1 April 2022
The parties to proceedings (and anyone else who is aware) must inform the court of the existence of a family violence order relating to the child or a member of the child’s family (s 60CF(1) Family Law Act 1975 (Cth) (Family Law Act)).
When seeking parenting orders including by consent, you must file a Notice of Child Abuse, Family Violence or risk (r 2.04 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and s 67ZBA Family Law Act).
Family violence and the court
Part VII of the Family Law Act ensures the safety of children is prioritised in parenting matters.
The definition of ‘family violence’ includes socially or financially controlling behaviour and the exposure of a child to family violence, while the definition of ‘abuse’ includes serious neglect and causing a child serious psychological harm including the child being subjected to or exposed to family violence.
When considering applications for parenting orders, courts are directed to enquire about past or future risk or previous experience of abuse or family violence (s 67ZBB Family Law Act).
When advice is provided on parenting agreements, the adviser’s obligations have been amended and new obligations have been imposed to encourage parents to prioritise a child’s safety.
Parties are required to notify the court of allegations of family violence or abuse as well as disclose any involvement of child welfare agencies.
If there has been or is a risk of family violence or abuse, the court is prohibited from hearing an application unless the applicant has indicated in writing that they have received information from a family counsellor or family dispute resolution practitioner about the services and options available to them in the circumstances (s 60J(1) Family Law Act). However, the proceedings or any order made are not affected by failure to comply with that requirement (s 60J(3) Family Law Act). Accordingly, in cases where allegations of family violence and/or abuse are made, the applicant should include in their affidavit a statement of the information regarding the services and options provided to them.
Division 4 of pt XI of the Family Law Act provides that unrepresented parties will not be able to cross-examine the other party at an interim or final hearing if there are allegations of family violence and:
- either party has been charged or convicted with an offence involving violence or threat of violence involving the other party
- a final Family Violence Order applies to both parties
- the court makes an order that personal cross-examination should not be permitted (s 102NA(1)(c)(iv) Family Law Act).
Part VII div 11 of the Family Law Act deals with the relationship between parenting orders and family violence orders. Section 68P sets out the requirements for the court when making an order or granting an injunction that is inconsistent with an existing family violence order. In particular, it must identify the inconsistency and give an explanation of the order, its purpose, the parties’ obligations and how the contact provided for by the order is to take place. The court must also give a copy of the order or injunction to all persons bound by it within 14 days (s 68P(3) Family Law Act). To the extent of any inconsistency with orders made under the Family Law Act, the family violence order is invalid (s 68Q Family Law Act).
The Lighthouse Project
The FCFCOA is trialing a screening approach for risk of harm in three court registries including the Brisbane Registry. The Lighthouse Project is a three-part process that involves screening, triage and case pathways, and case management.
When an application or response for parenting orders only is filed at one of the pilot registries, parties will be asked to complete a questionnaire via a confidential online platform known as Family DOORS Triage. A specialised team will triage matters and identify parties who may require additional support and safety measures as well as direct the matter into the most appropriate case-management pathway based on the level of risk. The team is made up of highly skilled judicial registrars and court child experts acting in the role of family counsellors.
Matters will then be directed into one of three case-management streams being the Evatt List, other case management or family dispute resolution. The Evatt List is designed to assist families who have been identified as being at high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention, through a judge-led support team with specialised training and experience in working with high-risk families. Low to moderate-risk matters will be directed into the usual case-management pathways with a focus on completing dispute resolution to resolve or narrow the issues in dispute, where appropriate.