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What is family violence?

Family violence is a serious social issue that affects everyone in a family – children, parents and other members of the extended family.

The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) take family violence very seriously.

The Courts are guided by the following principles in responding to family violence concerns:

  • Safety is a right and a priority for all who attend and work at the Courts.
  • Family violence affects everyone in a family, including children.
  • Family violence can occur before, during and 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.
  • The Courts have a particular concern about the immediate and possible longer term adverse impacts on children who experience or witness family violence.
  • Even if children do not directly witness the violence, they are often very aware of it.

The family violence section of this website outlines what constitutes family violence, the Family Law Act 1975  as it relates to family violence, the effect of family violence on children, notifying the Courts about family violence, and a range of other information you may need if you or someone you know is experiencing family violence.

The Family Law Act 1975

Section 4AB of the Family Law Act 1975  (Cth) describes family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or cause the family member to be fearful.

Examples of behaviours that may constitute family violence include (but are not limited to):

  • assault (including 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
  • unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty

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). The new definition of family violence came into effect on 7 June 2012.

A person may commit family violence if they engage in behaviour that constitute coercion and control. Examples of this include:

  • 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.

At the same time the Family Law Act was expanded, the definition of child abuse was amended to include serious psychological harm arising from the child being subjected to or exposed to family violence.

Family violence can take many forms: it can be physical, emotional, psychological or sexual.

Common forms of violence in families can include (but are not limited to):

  • 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).

Studies show the impact of living with family violence can cause short or long term physical and emotional trauma to children, young people and adults. Not only does family violence, or the threat of family violence, affect a person’s safety, create fear and disrupt family units, it can also affect a person’s:

  • readiness to take action in a family law matter
  • willingness to come to the Courts
  • ability to participate in court events, and/or
  • ability to achieve settlement of their dispute through negotiation.

Related information

The Family Law Act 1975  contains a range of provisions designed to protect parties and children from family violence. Section 4(1) of the Act states that 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.

Family violence between parents is traumatic for children and can have long lasting effects. 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).

Examples of situations that may constitute a child being exposed to family violence include (but are not limited to):

  • 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.

Related information

Extensive research confirms the devastating impact family violence can have on children's lives and their physical and emotional development. Family violence can affect children in many ways.

Babies and toddlers

  • Unsettled, including excessive crying, sleep issues, feeding concerns), and difficulty soothing.
  • Very clingy, easily startled and anxious behaviours.
  • Withdrawn, for example disinterested in familiar people, toys and activities.
  • Signs of aggressive tendencies when playing.
  • Delays in developmental milestones.

School-aged children

  • Behavioural issues including aggression, emotional outbursts and disobedience.
  • Difficulties socially interacting with others, including playing with other children.
  • Emotional withdrawal.
  • Reduced appetite/eating disorders.
  • Sleep disruptions, including difficulty sleeping, bedwetting and nightmares.
  • Mood disorders.
  • Learning difficulties.

Adolescents

  • Reduced school attendance.
  • Issues at school, including bullying, or difficulty making and maintaining friends.
  • Depression or anxiety.
  • Eating disorders, self-harm behaviours, suicidal thoughts.
  • Risk taking behaviours.

Related information

The Notice of child abuse, family violence or risk is a mandatory form for any person who files an Initiating Application or Response in the Family Court or Federal Circuit Court seeking parenting orders from 31 October 2020.

It is also the prescribed notice when allegations for the purposes of subsections 67Z(2) or 67ZBA(2) of the Family Law Act 1975  are raised.

Under section 67ZBB of the Family Law Act 1975 , the Courts are required to take prompt action in relation to allegations of child abuse or family violence. Considerations must be made to:

  • determine what interim or procedural orders (if any) should be made to protect the child or any of the parties to the proceedings, and
  • obtain evidence about the allegation as expeditiously as possible.

The Courts must take action as soon as practicable after the notice is filed, and within eight weeks if appropriate to the circumstances (67ZAB (3)).

If an interested party to the proceeding answered 'yes' to question 6 and/or 13e of the Notice of child abuse, family violence or risk, the prescribed child welfare authority must be provided a copy of the form by the Registry Manager who may provide such other court documents and information as is required to enable investigation of the contents of the Notice (67Z(2)).

If there are allegations of family violence, child abuse or risk of family violence, the Court may make orders to obtain documents or information from state and territory agencies in relation to the allegations (69ZW). This could include documents pertaining to notifications made to child protection/state or territory agencies regarding suspected child abuse or family violence affecting the child, or other investigations made by the agency following the notification.

Under section 68B of the Family Law Act 1975 , the Court can make orders or grant injunctions as it considers appropriate for the welfare of the child.

Section 60CF of the Family Law Act 1975  states that if a party to the proceedings, or a person who is not a party to the proceeding, is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the Court of the family violence order.

Related information

A family violence order (including an interim order) is generally made under a prescribed law of a state or territory to protect a person from family violence.

If you have a family violence order, you must tell the Courts about the order.

Family violence orders are called different things in different states, for example:

Although the names of family violence orders differ in each state and territory, the processes in each state are similar and family violence orders made in any state and territory can be registered for enforcement in any other state or territory if needed.

Individuals who are experiencing violence in a domestic or family relationship can apply for a family violence order. Depending on the state or territory the order is being applied in, the relationships can include:

  • an intimate partner or intimate personal relationship
  • a family relationship, or
  • an informal care relationship.

Related information

The Family Court of Australia and the Federal Circuit Court of Australia have federal jurisdiction and are responsible for making parenting orders, whereas family violence orders are general made by the prescribed law of a state or territory.

All decisions of the Commonwealth override decisions made by states or territories , therefore parenting orders that have been administered by the Family Court or the Federal Circuit Court will supersede inconsistent obligations of a state or territory based family violence order.

Under the Family Law Act 1975 , all state and territory orders are described as family violence orders. Such orders may forbid one parent from coming within a set distance of another parent or stalking or harassing them.

Sometimes the Courts will make an order or an injunction that is inconsistent with the state or territory order (see Sections 68P and 68Q of the Family Law Act 1975 ).

Family violence orders can allow parties to come into contact with each other only for:

  • delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or
  • enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings.

If a parenting order states a child is to be collected from the protected person of a family violence order, and the family violence order states the person who the order applies to is to not be within 100 metres of the residence, there will not be a breach of the family violence order as the purpose of attending the residence is to comply with the parenting order.

However, if the person who the order applies to attends the residence of the protected person for reasons other than are not in compliance of the parenting order, they will be in breach of the family violence order. The same principle applies with making contact or communicating with the other party for purposes other than the child(ren) the parenting order applies to.

Related information

Child protection is prescribed in child welfare law of a state or territory, where authorities may intervene in in family settings and make orders in relation to the care and protection of a child or young person due to an allegation of harm or significant risk of harm to a child. Child protection orders are different to family violence orders. They are made by a state or territory Children's Court when it is believed that a child is in need of protection. However, children can also be included on family violence orders made for a parent if appropriate.

Further information on children’s courts can be found at the Australian Law Reform Commission .

Related information

Child abuse is defined by the World Health Organisation  as:

All types of physical and/or emotional ill-treatment, sexual abuse, neglect, negligence and commercial or other exploitation, which results in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power.

There are five main sub-types of child abuse and neglect, these include:

  • physical abuse
  • emotional abuse
  • neglect
  • sexual abuse, and
  • exposure to family violence.

For details and examples of the five main sub-types visit the Australian Institute of Family Studies  website.

Under section 67Z of the Family Law Act 1975 , the Court must be notified if a parenting matter involves allegations of family violence or child abuse. An interested person to the proceedings must notify the Courts if one of the parties to the proceedings has already committed family violence, or if there is a risk of family violence being committed by one of the parties by filing the Notice of child abuse, family violence or risk form (subsection 67Z(2)).

Under section 67ZBA of the Family Law Act 1975 , an interested person in a proceeding is a party to the proceeding, an Independent Children’s Lawyer who represents the interest of the child in the proceeding, or a person who is not a party to the proceeding.

Related information

People involved in disputes about the future arrangements for their children after relationship breakdown are required to make a genuine effort to resolve the matter by family dispute resolution.

Section 60I of the Family Law Act 1975  requires parties to make a genuine effort to resolve their dispute by attending mandatory family dispute resolution mediation prior to making an application for a parenting order.

If the exemption is sought because of FV or child abuse, Section 60I(9) of the Family Law Act 1975  sets out circumstances when an applicant does not have to attend family dispute resolution services before applying to a court. The grounds are extensive and relate to:

  • if family violence has been committed or there is a risk of family violence being committed by one of the parties to the proceedings, or
  • there being abuse or a risk of child abuse if there was a delay in applying for an order.

In the instance of an exemption to attending family dispute resolution mediation due to the above circumstances, the applicant must still receive information regarding services and options (including alternatives to court action) that are available.

The Court cannot hear the 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 in circumstances of abuse or violence. This may not apply if the Court is satisfied that there are reasonable grounds to believe there would be a risk one of the parties to the proceeding may commit family violence or child abuse (Section 60J).

Related information

Amendments to the Family Law Act 1975  in 2019 provide protection to victims of family violence who are cross-examined as part of family law proceedings. Since 10 September 2019, personal cross-examination is banned in family law proceedings in certain circumstances where allegations of family violence have been raised.

Personal cross-examination is where a party asks questions of another party or witness directly, rather than having the questions asked by a lawyer.

Under the scheme, cross-examination is now conducted by legal representatives.

For more information, read the Court’s fact sheet.

Court-ordered protection in other cases

Where there are allegations of family violence, but section 102NA does not apply, meaning an automatic ban does not apply, or the Court does not apply its discretionary ban on the cross-examination of a party where there is allegations of family violence, the Court must ensure that during the cross-examination, there are appropriate protections to ensure the safety of the party who is the alleged victim of the family violence. For example, the Court may consider it appropriate to give a direction under subsection 102C(1) of the Family Law Act 1975  that the cross-examination be conducted by video link or audio link.

Related information

You must tell the Courts about any relevant family violence orders and file a copy of any family violence orders as they may affect court orders, particularly orders about a child spending time with a parent or other person.

When the Court knows about a family violence order, it can make parenting orders that take the order into account. For example, it can arrange for an independent person to be present during hand-over times or order that the time the child spends with a parent or other person takes place at a children's contact centre.

If you have fears for your safety or that of your children, regardless of whether you are attending the Family Court or the Federal Circuit Court, you should contact the police.

If your fears are immediate, ask for urgent help and tell the police if there any weapons involved. The police are equipped to respond quickly and appropriately.

Most police departments have trained family violence officers who can put your case into a state or territory court and get a family violence order (also called protection, domestic violence or apprehended violence orders) for you. Once such an order is made, the police will respond to and deal with breaches of it.

If you have any fears about attending a court appointment at the same time or in the same room as your former partner, please tell the Court as soon as possible. There are safe rooms available in many registries and provision can sometimes be made for separate entry and exit points. You may be able to attend by phone or by video.

Safety measures vary in registries. For full details of what is available, call or Live Chat the Courts on 1300 352 000 or (if you have been given their number) the person directly managing your case. Do this before attending so arrangements can be made.

If you have fears about attending a court event in person and are unable to bring a support person or friend with you, you can apply to attend your court event via telephone or video link.

In your request you will need to set out the reasons why you are requesting to attend via telephone or video link. The approval of the request will be at the discretion of the docketed judge or the registrar the matter is listed before.

For further information see: Telephone/video link attendance request form.

If you are not legally represented, you may have a friend or support person attend a court conference or other court appointment with you. The extent of a support person's involvement in the conference/appointment will be at the discretion of the registrar or family consultant conducting the conference/appointment.

If you have a friend or support person with you, they may sit at the back of the courtroom. Children and young people under 18 are not permitted in the courtroom.

During a hearing, parties who are not legally represented may be allowed to have a support person sit with them. The extent of the support person's involvement in the hearing will be at the discretion of the judicial officer.

Related information

 

The Family Violence Plan represents a major commitment by the Courts to the early identification and management of matters where violence, or the risk of violence, is alleged.

The overarching purpose of the plan is to protect the most vulnerable members of our community—children—and their families from the harm associated with experiencing or being exposed to family violence.

The plan builds on the work undertaken from 2004 onwards under the Family Court’s Family Violence Strategy, and the ongoing work of the Federal Circuit Court in this important area. It reinforces the commitment both courts have made to addressing family violence, including the measures contained in the joint Family Violence Best Practice Principles.

The plan contains actions for the administration of the courts, and for decision makers, legal practitioners, service providers and others involved in the family law system. It contains six priority areas, each of which has a defined goal and identified actions, responsibilities and timelines. The Plan complements the courts’ other plans that form part of the broad access and inclusion framework.

The plan was developed following extensive internal and external consultation.

Further information on the Australian Government’s broader commitment to taking action to prevent family violence can be found on the Attorney-General’s Department website .

The Family Violence Best Practice Principles contribute to furthering the courts’ commitment to protecting litigants and children from harm resulting from family violence and abuse.

The Best Practice Principles recognise:

  • the harmful effects of family violence and abuse on victims
  • the prominence given to the issue of family violence in the Family Law Act, and
  • the principles guiding the case management system for the disposition of cases involving allegations of abuse of children.

The Best Practice Principles apply in all cases involving family violence or child abuse (or the risk of either) in proceedings before courts exercising jurisdiction under the Family Law Act 1975 , and provide useful background information for decision makers, legal practitioners and individuals involved in these cases.

While primarily focused on adjudication rather than administration, the principles have informed the administrative strategies of the Courts and underpin the Courts’ Family Violence Plan.