The Impact of Family Violence Upon Children
How is Parenting Order made?
Under Section 64B of the Family Law Act 1975 (Cth) (“the Act”), the Court gains the power to make parenting orders that are binding on all parties involved. In making such an order, under Section 61DA(1) of the Act, the starting point is a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (ESPR). When considering this issue, under Section 65DAA of the Act, the Court must consider whether equal time is reasonably practicable, and if not, whether substantial or significant time is reasonably practicable. If neither equal time nor substantial or significant time are reasonably practicable, the Court must ultimately decide what parenting order is in the ‘’best interests of the child’’.
How are the “best interests of the child” determined?
In order to ascertain the “best interests of the child”, the Court considers the following primary considerations as given under Section 60CC of the Act:
- Benefit of the child having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm and from being subjected to abuse, neglect or family violence.
The Court may also considers the following additional considerations as given under Section 60CC of the Act:
- Views of the child; and
- Nature of the relationship of the child; and
- Extent to which parent has taken opportunity to spend time and communicate with child; and
- Extent to which parents have fulfilled obligations; and
- Effect of any changes in the child’s circumstances; and
- Practical difficulty; and
- Capacity of parents and other persons; and
- Child’s maturity, sex and lifestyle; and
- Indigenous background; and
- Attitudes of the child; and
- Any family violence involving the child; and
- Any family violence orders; and
- Institution of further proceedings; and
- Any other fact or circumstance that the Court thinks is relevant.
What is the impact of family violence on a parenting order?
Under Section 61DA of the Act, the presumption of ESPR is rebutted in the instance that there is family violence or child abuse, or it is otherwise not in the best interests of the child. The Court will then consider what parenting order is in the “best interests of the child’’, wherein family violence and related orders may have a significant impact.
In considering the presence of family violence, either party or an independent childrens’ lawyer (ICL) may enlist evidence from a number of experts, including – teachers, doctors, treating specialists, counsellors, family consultants, psychologists, psychiatrists, paediatricians, family violence experts and child protection officers. Ordinarily and under Section 62G(2) of the Act, the Court will also enlist a Family Consultant to compile and tender a Family Report canvassing the child/parent relationship, the effect of any change in the child’s circumstances, the attributes of the child, the capacity of each parent to provide for the child and other matters deemed relevant.
The Next Step
If you would like to advice about parenting matters, contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.