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Abuse, Children and the Courts

By December 1, 2015November 7th, 2019No Comments

By Sharla Stevens

We are increasingly faced with clients  opening up about current or past domestic violence perpetrated against them by their current or ex-partner. There is often a lot of concern from these parents about what will happen with the children once they separate.

The Family Court has a very difficult task when making decisions in parenting matters where there have been allegations of domestic violence or abuse or risk of abuse to the children. Unfortunately parents who seek “no-contact” orders are often viewed as a hostile parent and they risk losing care of their children. There have been a number of cases over the last few years where a Judge has removed the children from the parent who has alleged domestic violence or abuse and placed them in the sole care of the other parent, who is the alleged abuser.

Under section 60CC(2) of the Family Law Act the Court’s primary considerations are whether the children would benefit from having a meaningful relationship with both of their parents and the need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. The Court must also consider the following:

  • the attitudes of both parents to time spent with the other parent
  • the denigration of either parent
  • the relationship between one spouse and their former spouse’s new partner
  • abuse at changeovers
  • denial of time with the other parent
  • physical abuse
  • inappropriate discipline
  • neglect.

Matters where one parent is alleging family violence, abuse or risk of abuse are difficult as the only evidence is usually that of the child, who often feel uncomfortable making disclosures to outside authorities, such as the police or child safety.

In the case of Goode and Goode (2006) the Court laid down a pathway for the conduct of interim proceedings:

  • identify the competing proposals of the parties;
  • identify the issues in dispute and any agreed relevant facts;
  • consider the matters in section 60CC that are relevant;
  • decide whether the presumption that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
  • if the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
  • if the presumption does apply whether it’s in the child’s best interests to make an order for equal time with each parent;
  • if it’s decided that equal time is not in the child’s best interests consider making an order that the child spend substantial and significant time with the other parent.

If you are concerned about family violence, psychological or physical harm to your children, or false allegations have been made against you, you should seek legal advice as these cases can have many competing and complex issues that need to be determined. Please contact our experienced team of lawyers here at Alliance Family Law on (02) 6223 2400 to book a free initial conference to discuss your matter further.


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