The topic of child custody is both delicate and significant, with the child's best interests always at the forefront.

One aspect that has gained increased attention in recent legal discussions is the impact of emotional abuse on custody decisions.

While physical harm is tangible and often more straightforward in legal settings, emotional abuse presents challenges and considerations.

What is Emotional Abuse According to Australian Family Law?

Definition and Examples of Emotional Abuse

In Australian family law, emotional abuse is persistent behaviour that adversely affects a child's emotional or psychological well-being. Examples include:

  • Name-calling, putdowns, and insults
  • Threats of harm or abandonment
  • Isolating the child from friends and family
  • Controlling the child's every move
  • Denying the child's emotional needs

However, it's important to note that not all negative behaviours or interactions fall under the purview of emotional abuse.

Distinguishing Between Emotional Abuse and Normal Parenting Stress

Emotional Abuse Normal Parenting Stress
Intentionally or repeatedly causing emotional harm to a child A temporary loss of temper or a single instance of yelling
Aims to control, manipulate, or intimidate the child Does not aim to harm the child
Can have lasting negative effects on the child's emotional development Does not have lasting negative effects on the child's emotional development
Examples: name-calling, putdowns, threats, humiliation, isolation Examples: yelling at a child for making a mistake, getting frustrated with a child's behavior

Can a Parent Lose Custody for Emotional Abuse?

Yes, emotional abuse can lead to a loss of custody in Australian law. The Family Law Act 1975 states that the child's best interests are paramount in all matters relating to children.

This means the court will consider all the case's circumstances, including the child's emotional well-being, when making custody decisions.

Emotional abuse can significantly negatively impact a child's emotional well-being. It can cause them to feel insecure, worthless, and afraid. It can also damage their self-esteem and their ability to form healthy relationships.

If the court finds that a parent has emotionally abused their child, it may decide to award custody to the other parent or a third party. The court may also order supervised visitation or restrictions on the abusive parent's contact with the child.

How is Emotional Abuse Proven in Court?

Proving emotional abuse in Australian courts can be challenging because emotional abuse, unlike physical abuse, often doesn't leave visible marks or scars. Nevertheless, the Australian legal system recognizes emotional or psychological abuse, especially in family law or domestic violence.

If someone believes they have been a victim of emotional abuse and they wish to prove it in court, they might consider the following steps:

  • Document Everything: Keeping a detailed record of each incident, including date, time, what was said, any witnesses, and any immediate emotional or physical reactions. Keeping texts, emails, voicemails, or other digital or written communications can be helpful.
  • Gather Witnesses: While many incidents of emotional abuse may occur in private, sometimes some witnesses can testify. This could include friends, family members, co-workers, counselors, or therapists.
  • Seek Professional Opinions: A mental health professional can assess the emotional and psychological impacts of abuse and may provide a professional opinion or testimony that can be used in court.
  • Evidence of Impact: Show proof of how the abuse has affected daily life. This can include evidence of seeking therapy, medical records for stress-related illnesses, evidence of changes in work performance, or testimonies from close acquaintances about changes in behavior or mood.
  • Restraining and Protection Orders: If there's an immediate threat, consider applying for a protection order. These orders can provide some level of protection and serve as a legal acknowledgment that abuse has been alleged.
  • Support Services: Engage with domestic violence or family violence support services. They can offer guidance, support, and sometimes even assistance documenting abuse.
  • Avoid Retaliation: It's crucial not to retaliate or engage in any behavior that could be perceived as abusive. This could undermine the claim and potentially lead to legal consequences.

It's important to remember that the burden of proof in civil cases, like family law disputes, is on the "balance of probabilities," meaning that something is more likely than not to have occurred.

This is a lesser standard than the "beyond a reasonable doubt" standard used in criminal cases.

The Role of Family Reports in Assessing Emotional Abuse

A Family Report, often crafted by a court-appointed expert, provides an independent assessment of the family's circumstances and can be instrumental in highlighting instances of emotional abuse.

These reports delve deep into family dynamics and are particularly valuable in cases of family violence in parenting proceedings.

Can Allegations of Emotional Abuse Be Made Falsely?

Yes, allegations of emotional abuse, like any other form of abuse or misconduct, can be made falsely.

False allegations can arise for various reasons, including but not limited to misunderstandings, manipulation, revenge, or the desire to gain an upper hand in legal disputes (e.g., child custody battles).

Legal Consequences of Making False Claims in Court

Making false claims in court is a serious offense in many jurisdictions worldwide, including Australia.

The legal consequences can vary depending on the nature of the false claim, the legal system of the jurisdiction, and the context in which the claim is made.

Here are some potential consequences of making false claims in court:

  • Perjury
  • Obstruction of Justice
  • Contempt of Court
  • Civil Liability
  • Loss of Credibility
  • Professional Consequences
  • Impact on Future Proceedings
  • Reversal of Decisions
  • Costs and Restitution

What Role Do Child Welfare Services Play in Emotional Abuse Cases?

If there's a suspicion of emotional abuse, it may be reported to Child Welfare Services, leading to an investigation. Click this link for more detailed insights about mandatory child abuse and neglect reporting in Australia.

Upon a report of abuse, agencies play a critical role in assessing the child's environment. They collaborate closely with courts to ensure a child's safety and well-being.

Throughout this process, seeking expert advice is crucial. For instance, if you believe emotional abuse is ongoing, obtaining an AVO for Emotional Abuse might be an appropriate step, and consulting with AVO Lawyers can provide guidance tailored to individual situations.

Corwin & Corwin [2018] FamCAFC 83


In 2018, the Federal Circuit Court in Brisbane heard the complex case of Corwin & Corwin, centered on allegations of domestic and emotional abuse. The Corwins, who started their relationship in 1996 and separated in 2016, have nine children.

Their relationship was fraught with conflict, compounded by substance abuse. After their separation, concerns arose about Ms. Corwin's care for the three youngest children, resulting in their relocation to their father's custody.

Parenting orders finalised in November 2017 granted the father sole responsibility for the five youngest children. Both parents had a history of domestic violence, with the father having made positive behavioural changes post-2016, while the mother had not acknowledged her issues.

Expert Testimony:

Based on her interviews with six older children, Ms. S, an expert family report writer, detailed the children's experiences.

They recounted the mother's physical and emotional abuse, including intoxication, verbal derogation, and violence. In contrast, while the children acknowledged their father's past behaviour, they noted his recent improvements.

Ms S's report found the children's distress genuine, attributing the emotional harm to their mother. She recommended keeping the siblings together, citing their strong bond.

Appeal and Verdict:

In 2018, the mother contested the 2017 parenting orders, alleging the trial judge's over-reliance on Ms S's report and accusing the father of coaching the children against her. She sought custody of the three youngest children.

However, her claims conflicted with the evidence. The appeal judge upheld the trial judge's reliance on Ms. S's expert testimony, noting its consistency with other evidence. The mother's appeal was dismissed, establishing the court's stance on safeguarding children from maternal domestic violence.

A Final Thought on Emotional Well-being and Custody

Protecting the emotional well-being of children is paramount in Australian Family Law. While navigating the complexities of custody disputes, always remember the core principle: the child's best interests come first. Seek advice, understand your rights, and strive for the best outcome for your child.

Concerned about the Complexities of Custody Battles Involving Emotional Abuse?

Ensure your rights and your child's well-being are prioritised. Reach out to Justice Family Lawyers, experts in navigating the intricacies of family law. Let us guide you with dedication, knowledge, and compassion. Secure a brighter future for your child today.

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.