Domestic Violence and Child Custody Australia

How does domestic violence affect child custody?

Domestic violence and child custody often overlap, but it is two different pieces of legislation: the Domestic and Family Violence Protection Act, which is state-based and the Family Law Act, which is federal. It is important to weigh them against each other carefully and ensure any court orders made are consistent with each other and in respect to these laws.

When it comes to family law, domestic abuse can affect child custody in these primary ways:

Primary Consideration of Child Safety:

• • The Courts are guided by the following principles in responding to family violence concerns: Safety is a right and a priority for everyone. Family violence affects everyone in a family. The Courts have a particular concern about both the immediate and longer-term impacts of family violence on children. Most separated parents display family violence can occur before, during and after separation.

• • Courts prioritise the safety and well-being of the child when determining child custody arrangements. The benefit of children having a meaningful relationship with both parents is the need to protect children from physical and psychological harm, emotional abuse, and sexually abusive behaviour. Evidence of domestic violence can significantly impact the court’s decision, often leading to limited or supervised visitation for the abusive parent.

Impact on Custody and Visitation Rights:

• • A parent with a history of domestic violence may face restrictions or even lose custody rights. The court may order supervised visitation or, in severe cases, terminate visitation rights to protect children.

Legal Presumptions and Protective Orders:

• • Many jurisdictions have legal presumptions against awarding custody to a parent with a history of domestic violence. Protective orders can also be issued to prevent the abusive parent from having contact with the child or the other parent.

Requirement for Intervention Programs:

• • Courts may require the abusive parent to complete intervention programs, such as anger management or domestic violence counselling, before considering any changes to custody rights for mothers and fathers or visitation parenting arrangements.

Consideration of the Child’s Emotional and Psychological Health:

• • Domestic violence can have lasting emotional and psychological effects on children. Courts take these factors into account when making custody decisions to ensure the child’s mental health is safeguarded.

Evidence and Documentation:

• Documentation of domestic violence, such as police reports, medical records, and testimonies from witnesses, plays a critical role in custody hearings. This evidence helps the court understand the extent of the abuse and make informed decisions on how equal shared parental responsibility should look like moving forward.

If a parent has a history of domestic violence, will they get custody or time with a child?

If there is family domestic violence, it depends on numerous factors as to whether a mother or a father will get custody or time with a child. These factors rely on one question: Is it in the child’s best interest to allow custody or visitation to the parent who committed the act of domestic violence? If it is in the child’s best interests, then that parent will be allowed custody when the court sees fit. However, more often than not, if the domestic violence is severe or towards the child, it won’t be in their best interest to have unsupervised time with the perpetrator parent.

Examples of behaviours that may constitute family violence include (but are not limited to): assault (including sexual assault or other sexually abusive behaviour) stalking repeated derogatory taunts intentionally damaging or destroying property intentionally causing death or injury to an animal unlawfully depriving the family member.

In deciding on child custody, a court must consider the paramount consideration of the child’s best interests. In a case where family violence is an issue, the objects that are usually evaluated are:

• • S60B(1)a – Ensuring children have the benefit of both parents having a meaningful involvement in their lives that is consistent with their best interests; and

• • S60B(1)b – Protecting children from physical and psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

The need to protect the children from harm is a paramount consideration in determining their best interest

It’s important to note that the Family Law Act is not trying to promote an optimal relationship with the parent but rather a meaningful one in the child’s best interest. A meaningful relationship is generally defined as something significant and valuable to the child. A meaningful relationship might include no contact, phone contact, supervised contact, or anything the court determines is in the child’s best interests. In family violence cases, a court must weigh these two objects (among others) carefully against additional considerations.

Additional Child Custody Considerations

S60CC sets out further considerations that a court must take into account; these include but are not limited to:

• • Views of the child;

• • Nature of the relationship with the child;

• • The willingness and ability for the parents to facilitate a connection between the child and the other parent;

• • Difficulties and expenses of the child spending time with a parent;

• • The capacity of the child’s parents to care for the children;

• • The attitude of the child; and

• • Family violence involving the child or a member of the child’s family.

These considerations are not weighted the same as protecting the child from harm. However, they can sway a court into allowing a certain amount of time with the family violence offender in some cases.

Parental responsibility

The presumption of equal shared parental responsibility — which assumes both parents have an equal say over decisions affecting their child — will also be abolished. The court will presume it’s in the children’s best interests for parents to have equal shared parental responsibility unless there has been child abuse or family violence. Equal shared parental responsibility is not the same as equal parenting time. If your children are in someone else’s care and you think they may be in danger, contact the police. It is a matter for the police whether they take action.

Sole parental responsibility and Joint parental responsibility

 If the court finds both parents have joint parental responsibility, then the parents must consult each other about the major long-term decision and make a genuine joint decision. A court can make an order for joint or sole parental responsibility depending on what is in the children’s best interests.

Joint parental responsibility includes making joint decisions about children’s medical matters, religious matters, cultural matters, child’s education and living arrangements. Day-to-day decisions, such as what the children eat or wear, are not included. If the court finds both parents have joint parental responsibility, then the parents must consult each other about the major long-term decision and make a genuine joint decision. A court can make an order for joint or sole parental responsibility depending on what is in the children’s best interests.

What type of visitation or time is appropriate in cases of domestic violence?

In child custody cases with domestic violence factors, a court may order supervised time. Supervised time can be at a family members house or, in some cases, at a contact centre.

Mediation and family violence

For a couple to seek court orders for parenting, they must attend compulsory mediation. If family violence is an issue, a parent can ask the court to waive this requirement.

What parenting orders can a court make in cases with a domestic violence order?

Firstly, the parties must inform the family court of any domestic violence orders. Any parenting orders made by the family court must be consistent with the state order s60cG. Additionally, the court must not expose parties to an unacceptable risk of family violence.

If the domestic violence is towards the children, it is wise to get them named on the domestic violence order.

Urgent Hearings

If violence is being alleged as an issue. In that case, a parent can ask for an urgent hearing date, and they may also dispense with any need to obtain an S60I certificate.

Final notes

If you are under threat, you should contact your local law enforcement authority or ring a domestic violence hotline such as 1800Respect (1800 737 732). If you believe you are under immediate threat, please call 000.

In summary, it depends on each individual’s situation. There is no cookie-cutter answer as to how family violence will affect child custody. The specific details of the violence, the factors in the Family Law Act, and previous cases will all form part of the judge’s decisions as to how much or how little custody they should award to a parent