Family violence is a significant factor in children’s matters. The Family Law Act provides a provision whereby ‘the best interests of children are met by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence’.
The law often focus on children’s rights to be protected from harm, than to focus on children’s rights to a meaningful relationship with their parents.
Although the term domestic violence may be used, the term ‘family violence’ is normally associated with cases where there are allegations of child abuse.
How is Family Violence defined?
The term ‘family violence’ can refer to either actual or threatened conduct which causes a reasonable fear for a person’s wellbeing or safety. It may not necessarily include violence which is directed at a child but can include such conduct towards a child.
The existence of family violence between spouses could be an indication that the family violence could affect children, as well as influencing the parental capacity of those spouses.
The following conduct could be deemed as family violence:
- Sexual assault or other sexually abusive behaviour;
- General assault;
- Derogatory taunts in a repeated and/or continuous fashion;
- Damaging or destroying property;
- Causing death or injury to an animal;
- Denying a family member financial autonomy that that family member would otherwise have had;
- Withholding or denying a family member financial support to meet reasonable living expenses;
- Preventing or stopping a family member from making or keeping connections with other family members, friends and/or culture; and/or
- Depriving that family member of his or her liberty.
The above list is only indicative and other instances not listed above may also be deemed as family violence.
Furthermore, an exposure of a child to family violence may also be deemed as child abuse.
Instances of exposures of a child to family violence may include:
- The child overhearing threats made by a family member to another family member threatening with death or personal injury;
- The child seeing or observing or hearing an assault taking place by one family member against another family member;
- The child providing comfort or assistance to another family member who has been subjected to family violence;
- The child is requested, or is, cleaning and/or organising a site where damage to a property was caused by family violence; and/or
- The child is present at the time a police petrol or an ambulance is called upon with respect to an assault or damage caused by a family member.
The Family Law Act defines abuse as follows:
An abuse, in relation to a child, can include sexual abuse, physical abuse, psychological abuse as well as neglect of a child.
Allegation of child abuse or family violence to be commenced in Court
A person may make an allegation that a child abuse of family violence has occurred or may occur, such allegation must be lodged with the Family Court by filing a Notice of Risk. Such person must consider the severity of that risk and must consider whether it would be prudent to inform the police of an imminent risk that a child requires immediate or prompt attention.
Such allegation does not have to be filed against the parents. It may include perpetrators who live either the child or spend regular time with the child (who may not necessarily be related to the child).
The Court then is required to make an assessment as to whether that child is placed in an ‘unacceptable risk’ of abuse of violence occurring. If such unacceptable risk is found, the Court may issue an order forcing the child to live with one parent, a relative or in a foster home.
Filing with the court a Notice of Risk is critical as the Court may then inform the relevant child welfare agencies to investigate into the matter and take precautionary actions.
Our Expert Lawyers
Contact us today to find out how we can help you with your matter.