Family violence and the Family Law Act
The definition of ‘family violence’ under the Family Law Act was changed in 2011. See Changes to law on family violence and child abuse in 2011.
Family violence is often alleged in the course of cases before family law courts. Under the Commonwealth’s Family Law Act, the courts have powers to grant ‘protection orders’. They are also able to take a history of family violence into account in deciding what parenting orders should be made in the best interests of the child/children. Family violence can also have an impact as a ‘negative contribution’ to family life and be factored in the court’s reckoning about the proper distribution of property at the end of a relationship (Re Kennon and Kennon  FamCA 27).
A court exercising authority under the Family Law Act may grant an order for the personal protection of a child and their parent or carer, and also for a married person, with or without children (section 68B and section 114 Family Law Act 1975). The order may prevent another named person from entering or remaining in the place of residence, education or employment of the protected person. The order is enforceable by the police. A person who breaches a personal protection order may be arrested and incur penalties, which may include a fine or a term of imprisonment.
All court officers, counsellors and family dispute resolution practitioners working with people involved in family disputes are required to notify the Family Court of any suspicions of child abuse, as well as suspicions of bad treatment, neglect or psychological harm. Changes to the Family Law Act in 2011 also require that parties to family law cases declare any allegations of child abuse. Any other person with reasonable grounds can also make a notification of child abuse to the Family Court.
If a family law court is advised of child abuse allegations, it must consider making immediate temporary orders to protect the child and/or change living or care arrangements, advise the necessary state protection authorities (in NSW, the Department of Family and Community Services), and generally, act as quickly as possible to resolve the case. The court will appoint an ‘independent children’s lawyer’ and the case may be moved to a special program of cases called the Magellan Program. Magellan cases involve serious allegations of physical and sexual child abuse. They receive special case management, early attention to protection for the child, and the expert attentions of a specialised team of judges, registrars and family consultants.
The Family Court cannot make any parenting orders for a child once state or territory agencies have made a care and protection order for the child.
Family violence under NSW law
Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) a ‘domestic violence offence’ is a personal violence offence committed by a person:
- who is or has been a spouse or de facto partner of the victim;
- who has had an intimate personal relationship (sexual or otherwise) with the victim;
- who is living or has lived in the same household or residential facility as the victim;
- who has or has had a relationship of dependence with the victim;
- who is or has been a relative of the victim; or
- who is or has been part of the extended family or kin of the victim other person according to the Indigenous kinship.
A personal violence offence includes a range of offences such as murder, manslaughter, malicious wounding or damage, assault, and sexual assault, and also the breach of an apprehended domestic violence order.
Under NSW law, a ‘mandatory reporter’ is any person who delivers health care, welfare, education, children’s services, residential services or law enforcement to children aged under 16 as part of their work. A mandatory reporter with concerns that a child aged under 16 is at ‘risk of significant harm’ is legally obliged to make a report to the NSW Department of Family and Community Services (FaCS).
Under section 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the court can make an Apprehended Domestic Violence Order (ADVO). An ADVO can be very detailed, containing provisions banning a person from making contact with certain people, being in certain places and doing certain other things. An ADVO is designed to protect a person from violence, abuse, threats, harassment, stalking or contact with another person. An ADVO may be issued if the court is satisfied that a person ‘has reasonable grounds to fear and in fact fears’ a personal violence offence, or intimidation, or stalking (though the fear requirement is not necessary if the person is a child or of below-average intelligence.) See section 19 of the Act.
Breach of an ADVO is a criminal offence. Offenders are liable for a range of penalties including community service orders, fines and imprisonment.