Domestic Violence and Family Law

The Commonwealth Attorney General released revised Family Violence Best Practice Principles on 19 July 2011 as part of the Family Courts ongoing Family Violence Strategy.

Protecting families and in particular children who are caught up in the family law system is a priority for the Family Court and the Federal Magistrates Court.

Ensuring the safety of a child is central to all determinations of what is in a child’s best interests which is the paramount principle in determining what Order should be made in relation to a particular child.

Family violence is given an extended definition by the Family Law Act and covers a wide range of behaviours over and above a physical assault.

In determining the arrangements which will promote the best interests of a particular child the Court is required to have regard to two primary and thirteen additional considerations. The first primary consideration is the benefit of the child having a meaningful relationship with both of the child’s parents. The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.

There is quite often tension between these two primary considerations. The BPP’s are not binding on a Court but are a useful tool for the Court, Practitioners and parties to work through the relevant issues where there is an allegation of domestic violence. The guidelines differentiate between different types of family violence and assist by providing a check list of relevant factors to be considered.

Family Law is a complex area of Law. As well as determining whether a particular incident occurred the Court is also often required to asses the risk of something happening in the future. This assessment of risk is not only the risk of a future event occurring but also an assessment of what risk there is to a particular child or party if that event did occur.

Further change in this area is likely to occur in the near future as the Family Law Legislation Amendment (Family Violence and other Measures) Bill 2011 is presently before Parliament. This Bill, if passed, is likely to wind back some of the 2006 amendments which were brought in by the Howard government.

For more information and advice on family law contact Grant Hodgson.

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