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 responsibility.
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 parents.
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.
