Domestic and family violence is, sadly, an increasing issue in today’s society. As lawyers, we often see parents withholding children to either:-

  • Ensure a child’s safety from a perpetrator of violence; or
  • Use the children as a ‘pawn’ to further their violence against the other parent and children.

A child may not be the direct subject of domestic violence, however children can be associated or exposed to domestic violence which is harmful to children and their safety. Some (but certainly not all) examples are:-

  • Seeing or overhearing abuse;
  • Cleaning up property that has been damaged; or
  • Experiencing financial stress from financial abuse.

We often see domestic violence situations within families of our clients and they often ask: How will this affect parenting arrangements?

The interaction between domestic violence laws and family law allows lawyers and the Courts to look at the issues of each case to ensure the safety of both the individual and the children.

  1. The Law – Domestic Violence Orders

Both the Domestic Violence Protection Act (Qld) and the Family Law Act recognise the interrelationship between domestic violence and parenting issues. This interrelationship allows the Magistrates Court dealing with a domestic violence order, the power to take into consideration parenting matters when making or varying an order.

For example, when making a domestic violence order, a magistrate will take into consideration if there are children and the need to communicate to facilitate time with the children and will make conditions, if safe to do so, that are specific to communications between parties for the benefit of the child.  Generally, domestic violence orders will have what is called the “family law provisions” which allows the order to be subject to any family law orders that are made.

The Order is likely to list the children on the order as well. This means that the children are protected under the domestic violence order.

  1. Parenting Orders – Family Law

Under the Family Law Act, the issues that a court takes into consideration when making parenting orders are, as a whole, what is in the best interests of the children. [1] When seeing a lawyer or going before a judge in court, family violence is one of the key factors that is taken into consideration when determining what is in a child’s best interest and the time spent with parents.

It is also a requirement under the Family Law Act to inform the court of any family violence orders.[2]

Another primary consideration under the Family Law Act is for a child to have a meaningful relationship with both parents. As there is this consideration, courts will determine how to best approach a situation involving domestic violence.

The Court considers if domestic and family violence will jeopardise the safety of children and whether certain precautions should be implemented to minimise risk. For example, if supervised visits would help elevate the risks of being subjected to or exposed to domestic and family violence, as well as how much time is spent with a parent or if a parent should complete a parenting course.

  1. Mediation for parenting disputes

Family or child abuse is also a consideration for not attending family dispute resolution (more commonly known as mediation) to resolve family law issues as well as whether urgent applications to the family law courts are necessary.[3] For example, if there would be a risk of abuse or family violence to the child or one of the parties if there is a delay in applying for parenting orders.

If you are experiencing family and domestic violence, please reach out to friends or family, and, help centres.

And get some legal help and advice.  Have a chat to our smart lawyers – we can help.

[1] Ibid, s60CA

[2] Family Law Act 1974, s60CF.

[3] Ibid, s60J.

By Taylor Wilson