Parenting orders include orders about where your child lives
('living with orders'), who they spend time with
('spending time with' orders), how parents must communicate
between themselves about the child, the communication the child is
to have with the parents and the allocation of parental
Orders mean that even if your relationship with the other parent
ends, you're likely to continue to remain in contact to discuss
issues about your children. Often family violence perpetrated
during the relationship won't stop after separation and in some
instances separation may trigger family violence between parties.
After separation, it's common for violence to occur when
parents are organising spending time arrangements for a child, or
when parents are dropping off or picking up a child from visits. In
situations where there are allegations of family violence or child
abuse, this may affect how family law matters are managed.
Prior to filing parenting proceedings, parties are usually
required to participate in Family Dispute Resolution or FDR which
is mediation between the parties in an attempt for parties to
resolve disputes without the need for litigation. However, there
are exceptions to this requirement including if there are
reasonable grounds to believe there has been or is a risk of abuse
or family violence. Sometimes a Family Dispute Resolution
Practitioner will determine that FDR is inappropriate, on other
occasions you may need to apply to the Court to dispense with the
need to engage in FDR.
When determining parenting matters, the Court takes into account
two primary factors to decide what is in your child's best
interests - the benefit to your child of having a meaningful
relationship with both parents and your child's right to be
protected from physical or psychological harm.
In July 2012 the Family Law Act 1975 was amended to reflect an
increasing number of reports of family violence by parties. The
amendments now require the Courts to give greater weight to the
need to protect your child from physical or psychological harm over
the benefit of them of having a meaningful relationship with both
In matters where allegations of family violence and child abuse
are made, a Court may not immediately make a parenting Order,
rather the Court may invite the Department of Family and Community
Services to intervene in the proceedings. The Court may make
'interim' Orders to protect children and family members,
including, if the Court is sufficiently concerned about the safety
of the children, orders for one parent to have supervised time with
the children. An independent children's lawyer may also be
appointed to investigate further and make a report.
Often in parenting matters where there are allegations of
violence, an Apprehended Violence Order may have been applied for
and/or made for the protection of the other parent and the
children. Generally, parenting orders override an AVO where there
is inconsistency. For example, while an AVO may prevent one parent
(the defendant) from approaching the protected person's home,
if Family Court Orders stipulate the defendant collect the child
from the home each Sunday at 5:00pm, then the defendant can
approach the home on Sunday at 5:00pm and not be in breach of the
AVO, as the AVO is invalid to the extent of the inconsistency.
However, if the defendant assaulted the protected person while he
was at the home, or approached home on other days of the week, then
the defendant could be charged with breaching the AVO.
It is sometimes suggested that parents routinely make
applications for AVOs to gain an advantage in family law cases
about children. If one parent in a family law matter claims that
domestic violence has occurred, they must still prove it to a
family law court. Although an AVO may be presented to a family law
court as evidence of family violence, other sources of evidence
will also be considered including affidavits or expert reports.
Despite the aim of the amendments to assist victims of domestic
violence to properly disclose relevant acts of violence and better
understand what actually constitutes family violence, there are
occasions (unfortunately) that allegations of domestic violence
raised in a family law matter are false. If a person is found to
have knowingly made false allegations of domestic violence, the
family law courts will continue to have the power to make costs
orders against the accuser and it remains a criminal offence to
knowingly make a false statement in court proceedings.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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