Family violence is defined within the Family Law Act 1975 (FLA) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. The FLA also provides some examples of behavior that the Court may consider to be family violence including, an assault, a sexual assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property or unreasonably denying financial autonomy that a person would otherwise enjoy.
Abuse is defined in the FLA, in relation to a child to mean an assault, including a sexual assault, the child being used directly or indirectly as a sexual object, causing the child to suffer serious psychological harm, including exposure to family violence and serious neglect of the child.
In parenting matters, the Court is required to consider the benefit to the children of having a meaningful relationship with both parents, however, the Court is also required to protect children from harm and in the event of any inconsistency in the assessment of these considerations, the safety and wellbeing of the child takes priority.
On 12 January 2015, the Federal Circuit Court of Australia introduced the Notice of Risk, a mandatory form that must be filed with each parenting application. This form requires parties to identify whether in their view, a child has been abused or is at risk of being abused, or there has been family violence, or there is a risk of family violence. This form also requires parties to indicate whether they have reported these allegations to an external authority such as the police, child welfare or a medical practitioner. Each allegation raised must be supported by evidence.
If at any time a party to the proceedings becomes aware of new facts or circumstance, then the FLA allows a party to file an amended notice of risk. Again, each allegation raised must be supported by evidence.
Section 67ZBA(3)(b) of the FLA provides that the Registry Manager of the Court must notify a prescribed child welfare authority if a notice of risk alleges that a child has been abused or is at risk of being abused.
The court must also consider the risk of family violence or family violence in property settlement matters. These allegations must be supported by evidence and if accepted by the Court then the Court may consider it appropriate to award one party an adjustment for the family violence they have endured. The assessment of family violence or the risk of family violence is also relevant to applications such as exclusive occupation of a former matrimonial home or an application for family violence orders protecting one party from another.
If you or your family are at risk of abuse or family violence or suffering from abuse or family violence, please contact the police.
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