Words in bold are explained in ‘What do these words mean?’ at the front of this booklet.
If there is family violence or child abuse you may need to go to court. The court is very concerned about the impact that family violence has on a child – whether the child saw or heard the violence or if they were hurt themself. Any violence in your past or present relationship is very important to the court. It is important to get legal advice about this.
If you need to go to court, you may be able to use a safe room there and use separate entry and exit points in the building. You may be able to attend court by phone or video. Contact the person managing your case or call the courts to find out what is available. For more information go to www.familylawcourts.gov.au.
How the Family Law Act defines family violence and child abuse
Family violence is defined in the Act as 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.
The Act provides a list of sample behaviours that may constitute family violence. These include:
assault, sexual assault, or other sexually abusive behaviour, stalking, repeated derogatory taunts
intentionally damaging or destroying property or pets
unreasonably denying you financial autonomy, or if you are a financial dependent, unreasonably
withholding from you financial support for your reasonable living expenses
depriving you of your family, friends or culture
unlawfully depriving you or a family member of your liberty.
See s.4AB of the Act.
Child abuse is defined in the Act to include assault, including sexual assault, of a child; causing serious psychological harm to a child and serious child neglect. See s.4 of the Act. Exposing or subjecting a child to family violence is included as psychological harm. See s.4AB.
Rules regarding family violence and child abuse in the Act include ss.60CF, 60J, 67Z, 67ZBA, 67ZBB and 69ZW.
Any behaviour that causes you to fear for your safety or wellbeing is included whether this is actual threats, physical violence or controlling behaviours. The court will look at the behaviour and assess whether your reaction is justified.
If you or the children are at immediate risk of harm, do not wait, call the police on 000. There are specialist family violence services that can help you.
See ‘Where to get help’.
How to tell the court
To tell the court about family violence or child abuse, you need to file a ‘Notice of child abuse or family violence’ form. You also need to file an affidavit to support what you have written in the Notice.
See ‘Chapter seven – Affidavits’, and Division 2.3.1 of the Act to read about filing a ‘Notice of child abuse or family violence’.
There are penalties for making false statements in court cases. If the court finds that a person has knowingly made a false statement during a court case, that person must pay some or all of the other person’s costs. This could include, for example, saying that family violence or child abuse happened or denying to the court that family violence or child abuse happened. This applies to all false statements in court, about any subject.
What the court must do
The court must take quick action if there are allegations of family violence or child abuse or the risk that these might happen. The court, family dispute resolution practitioners and counsellors must tell the Department of Human Services about the allegations.
The court is able to order the Department of Human Services or any other agency or organisation to provide documents and information about the people involved. Any person who told the court about violence, abuse or the risk of these will have their identities kept secret. The court must admit into evidence (use and make available) any documents it gets if it intends to use these when making a decision.
Part VII (seven) Division II (two) of the Act covers existing local family violence intervention orders and how they work with family law court orders. Both parties must notify the family law court and file copies of the order if there are family violence intervention orders and they were:
final (not opposed by the other party), or
contested orders (where the parties may have given evidence in court and the magistrate made the decision to make an order).
You need to file a copy of the order when your court case starts or as soon as you can after the order is made. This applies to family violence intervention orders that were made to protect a child or a member of the child’s family. A person who is not a party to the court case but is aware that such a family violence intervention order exists can also tell the court.
If you and your partner were married, you can also apply for an injunction as part of your family law case. An injunction works in a similar way to a family violence order. Get legal advice.
The Act requires the court place greater weight on protecting a child from family violence over that child’s relationship with a violent parent.
Family violence and parenting orders
A major consideration for the court when making a parenting order is the need to protect children from harm or the risk of harm. Sections 60CC and 60CG of the Act must be considered by the court when working out the child’s best interests. These include:
family violence involving a child or a member of the child’s family
any family violence order that applies to the child or a member of the child’s family.
If the court thinks that any later parenting plans may be made using threats, intimidation or coercion, it can order that a parenting order not be changed by a parenting plan made later. To find out more about family violence, family violence intervention orders and family law court orders, go to Victoria Legal Aid’s website: www.legalaid.vic.gov.au to see the family violence fact sheets. You can also call 9269 0223 to order publications on intervention orders and family law.
See ‘Family dispute resolution and parenting orders’ in ‘Chapter one – Alternatives to going to court’.