Family Violence and Parenting Orders in Australia: How the Court Responds

Family violence changes how an Australian parenting case is decided and processed: the Family Law Act 1975 folds any history of family violence into the safety factor a court must weigh, can excuse a parent from trying family dispute resolution first, and triggers court obligations, risk screening and cross examination protections that sit alongside, not instead of, a state or territory family violence order.

This page covers the Commonwealth Family Law Act 1975 provisions that engage once family violence is raised in a parenting case, plus the Federal Circuit and Family Court of Australia's related screening program and cross examination protections. State and territory family violence order law is covered in AVO and family violence order laws in Australia. This page also assumes the reader already knows the general section 60CC best interests framework, covered in parenting orders in Australia, and how a contested parenting application proceeds through the FCFCOA, covered in the family court process in Australia.

How family violence is defined under the Family Law Act

Section 4AB(1) of the Family Law Act 1975 sets a deliberately broad definition, built around coercion, control and fear rather than a list of specific acts. It reads: "family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful." That wording covers a pattern of controlling conduct, not only a discrete violent incident, and it applies to any member of the person's family, not only a spouse or former partner.

Section 4AB(2) gives examples of conduct that may constitute family violence, introduced as non exhaustive: "Examples of behaviour that may constitute family violence include (but are not limited to)" a list that covers, among other items, an assault, a sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, and economic or financial abuse. Because the introductory words say the list is illustrative rather than complete, a court is not limited to the examples printed in the subsection when deciding whether particular conduct amounts to family violence.

How family violence factors into a parenting order: sections 60CC(2A) and 60CG

The section 60CC best interests factors themselves are covered in full in parenting orders in Australia; this section focuses only on how family violence enters that test. Section 60CC(2)(a) makes safety, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm, the first general consideration a court weighs for the child and for each person who has care of the child. Section 60CC(2A) then specifically directs the court, in weighing that safety consideration, to include: "any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child's family." The bracketed qualifier matters in practice: the safety consideration reaches violence, abuse or neglect involving anyone who cares for the child, not only a legal parent or a person who holds parental responsibility.

A separate, shorter provision, section 60CG, requires the court making a parenting order to keep it consistent with an existing family violence order and free of unacceptable risk. It reads: the court must, so far as possible consistently with the child's best interests being paramount, ensure the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, and the court may include in the order any safeguards it considers necessary for the safety of those affected by it. In other words, section 60CC(2A) governs how family violence history is weighed when the court works out what order to make, while section 60CG is a check the court applies to the order it is about to make.

Skipping family dispute resolution because of family violence: section 60I(9)(b)

Family dispute resolution, and the section 60I certificate confirming it was attempted, is generally required before a parenting application can be filed. That requirement can be relaxed where the court grants an exemption. The chain runs through three linked provisions: section 60I(7) blocks filing without either a section 60I(8) certificate or a court exemption under section 60I(8A); section 60I(8B) allows that exemption only if the court is satisfied one of the section 60I(9) grounds exists; and section 60I(9)(b) is the family violence and child abuse ground, satisfied where the court is satisfied there are reasonable grounds to believe there has been abuse of the child by a party, a risk of abuse of the child if the application were delayed, family violence by a party, or a risk of family violence by a party. Any one of those four limbs is enough; a party need not establish all four. A related provision, section 60J, sets out what the court must do procedurally once such an exemption is granted.

The Notice of Child Abuse, Family Violence or Risk

Any Initiating Application, Response to an Initiating Application, or Application for Consent Orders that seeks parenting orders must be filed together with a form the Court calls the Notice of child abuse, family violence or risk. It is not required for financial or property only proceedings. The form exists to satisfy the Court's mandatory reporting obligations for allegations of child abuse under section 67Z and for family violence allegations amounting to child abuse under section 67ZBA, and the Court's related obligation under section 69ZQ(1)(aa) to ask each party whether they or the child have been subjected to, or are at risk of, abuse, neglect or family violence. If an allegation is made on the Notice, an affidavit setting out the detail must also be filed, under rule 2.04 of the FCFCOA (Family Law) Rules 2021.

State family violence orders and federal parenting orders: which one applies

This is where this page hands off to state and territory law. How to apply for a family violence order or apprehended violence order, what conduct amounts to a breach, and what penalties a breach carries are all set by state and territory legislation and courts, and are covered in AVO and family violence order laws in Australia, not here. What the Family Law Act does address, in Part VII Division 11 (sections 68N to 68T), is what happens when a federal parenting order or injunction and a state or territory family violence order point in different directions.

Section 68N states the Division's purposes: resolving inconsistencies between family violence orders and time-with or contact-with orders made under the Family Law Act, and ensuring those orders do not expose people to family violence. Section 68P is a procedural obligation on the court, not an offence: where a federal court makes a parenting order, recovery order or injunction that is inconsistent with an existing family violence order, the court must specify that inconsistency in its own order, explain how the arrangement is meant to work, and explain the order to the parties and to the people the family violence order protects. There is no offence provision anywhere in Division 11; breaching a family violence order is a criminal matter created and prosecuted under state or territory law, which again sits with AVO and family violence order laws in Australia.

Section 68Q resolves the underlying conflict of orders. To the extent that a parenting order, recovery order or injunction of the kind described above is inconsistent with an existing family violence order, the family violence order is invalid to that extent, meaning the federal order prevails over the inconsistent part of the state order. Section 68R is the mirror image power: a state or territory court making or varying a family violence order can revive, vary, discharge or suspend a parenting order, recovery order or injunction, to the extent that it provides for a child to spend time with a person. Both directions can matter in the same family; which order wins on the facts is a question the FCFCOA or the state family violence order court answers, not a fixed rule that favours one system over the other.

Screening for risk: the FCFCOA's Lighthouse program

The FCFCOA runs a program called Lighthouse to shape how it allocates resources and urgency in matters that may involve risk from family violence, mental health issues, drug or alcohol misuse, or child abuse and neglect. Parties in a Lighthouse matter complete Family DOORS Triage, an online risk screening questionnaire, early in the case. Matters identified as higher risk are then case managed through the Evatt List, a dedicated pathway with its own practice direction and guides for parties, practitioners and independent children's lawyers. For how the court hears the child's own views in a parenting case, including through an Independent Children's Lawyer, see a child's views and the Independent Children's Lawyer in Australia. Lighthouse and Family DOORS Triage were rolled out across FCFCOA registries in stages, so check current availability at your own registry rather than assume nationwide coverage.

Protections against personal cross examination

Where family violence is part of the case, the Family Law Act limits whether a party can personally question the other party as a witness. Section 102NA sets a mandatory bar, applying where a party intends to cross examine another party, there is an allegation of family violence between them, and at least one further condition is met, such as a conviction or charge for an offence involving violence against the other party, a family violence order (other than an interim order) applying to both parties, or a personal protection injunction under section 68B or 114 directed against the other party. Where it applies, the examining party must not personally cross examine the witness party; a legal practitioner acting for them must do it instead. Section 102NB is the discretionary fallback for allegations that fall outside section 102NA's conditions: the court must still ensure appropriate protections, such as directing that cross examination happen by video or audio link.

An unrepresented party barred from personal cross examination can apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme for legal representation. Per the FCFCOA's information sheet on the Scheme, it is not means or merits tested, though an applicant may be required to contribute to the cost, and applications go through the relevant state or territory Legal Aid Commission, at least twelve weeks before the final hearing. The same information sheet warns that a litigant with no representation, private or through the Scheme, will be unable to cross examine the other party at the final hearing.

Getting help

A reader dealing with family violence during a parenting matter does not have to navigate the court system alone. 1800RESPECT, on 1800 737 732, provides free and confidential support and counselling, available every day. The Family Relationship Advice Line, on 1800 050 321, can explain family dispute resolution exemptions, parenting arrangements and where to find local services. In an emergency, contact the police on 000. Information about family violence orders, including how to apply for one, sits with each state and territory and is covered in AVO and family violence order laws in Australia.

For the general best interests framework, see parenting orders in Australia; for how a contested application proceeds, see the family court process in Australia; for grandparents and other third parties applying for orders, see grandparents' rights in Australia. For the full picture, return to the Australian family law hub.