IMPORTANT

As of 7 June 2012 changes have been made to the Family Law Act 1975 (Cth) in relation to family violence.  The definitions of the terms “abuse” and “family violence” have been changed as has the considerations of what the Family Court takes into account when determining the best interests of children.

Please note that these changes currently only apply in Western Australia to people who are (or were) legally married. The changes do not apply to people who are (or were) in a de facto or same sex relationship or to people who had a short relationship or were not in a relationship.

It is expected that the same changes will be made to the law in relation to all families in the near future.  This is subject to the law being passed through State Parliament. 

 

If the law is currently different depending on whether the parents were married or not married, this will be clearly indicated.

 

What is family violence?

If you commence Court proceedings after 7 June 2012 and you were married then the following will apply:

Family violence in family law is defined as violent, threatening or other behaviour that coerces or controls another family member, or causes them to be fearful. Some examples of behaviour that may constitute family violence are:

• an assault
• a sexual assault or other sexually abusive behaviour
• stalking
• repeated derogatory taunts
• intentionally damaging or destroying property
• intentionally killing or injuring an animal
• unreasonably controlling or denying a family member access to finances or financial support
• preventing a family member from having connections with their family, friends or culture, and/or
• depriving a family member of their liberty.

This is not an exhaustive list and there may be other types of behaviour that could also constitute family violence.

A child is exposed to family violence if they see or hear family violence or experience the effects of family violence. Some examples of a situation that might mean the child is exposed to, or is considered to have been exposed to family violence are:

• overhearing threats of violence from one family member to another family member
• seeing or hearing an assault by one family member on another family member
• comforting or assisting a family member who has been assaulted by another family member
• cleaning up a location that was affected by an assault by one family member on another family member, and/or
• being present when police or ambulance officers attend to a family member who has been assaulted by another family member.

This is not an exhaustive list and there may be other types of behaviour that could also be considered to expose a child to family violence.

For more information on what family violence is and what you can do about family violence, see Violence restraining orders. See also Legal Aid WA's pamphlet - Family and domestic violence.

The following will apply to you if:

• you have current Family Court proceedings started before 7 June 2012 and you were married OR

• you were not married:

Family violence in family law is defined as:

• A family member doing something or threatening to do something to another member of their family, or
• A family member doing or threatening to do something to the other family member's property that makes the other family member (or someone else in the family) worried or fearful for their safety.

Family violence can include physical and sexual violence, threats of violence, stalking, emotional abuse and damage to property.

For more information on what family violence is and what you can do about family violence, see Violence restraining orders. See also Legal Aid WA's pamphlet - Family and domestic violence. 

What can I do if I experience family or domestic violence?

There are many support services available if you are experiencing family and domestic violence.  For more information see Family and domestic violence support services. 

I have separated from my partner. Will I have to go to family dispute resolution before I start a case for parenting orders if there has been family violence?

No, generally if you have experienced family violence or there is a risk of family violence, then you would fall into one of the exceptions and would not need to go to Family dispute resolution and get a certificate before you can start a case in the Family Court for parenting orders. You should, however, seek legal advice about your particular circumstances.

Please note that some family dispute resolution providers can still provide assistance even where there has been family violence, while at the same time making sure you are safe. For more information, see Family dispute resolution.

I have brought a violence restraining order (domestic and family violence), against my former partner. Do I need to tell the Family Court?

If you commence Court proceedings after 7 June 2012 and you were married then the following will apply:

Yes, you should tell the Family Court if you have a violence restraining order (domestic and family violence), against your former partner, or which involves your children or any other person who is part of your Family Court case. If you have a violence restraining order (domestic and family violence) against your former partner that involves your children then you must inform the Family Court. 

The Court will look at any family violence involving a child or a member of the child’s family. If there is a family violence order that currently applies or has applied in the past to your family, the Court will look at:

• the nature and circumstances of that order
• any evidence that was put forward in the proceedings leading to the order
• any findings that the Court made during the proceedings, and
• anything else that the Court sees as relevant.

The Court must consider any family violence order, past or present whether it protects a family member and your children or just a family member. See Best interests of the child for more information.

The following will apply to you if:

• you have current Family Court proceedings started before 7 June 2012 and you were married OR

• you were not married:

Yes, you should tell the Family Court if you have a violence restraining order (domestic and family violence), against your former partner.  If you have a violence restraining order (domestic and family violence) against your former partner that involves your children then you must inform the Family Court. You should give a copy of the violence restraining order (domestic and family violence), which affects you, your ex-partner or your children to the Court when you file your papers to start a case or as soon as possible afterwards.

If you want to know more about violence restraining orders (domestic and family violence), please see Violence restraining orders and Police orders- information.

Will the Family Court take family violence into account when making parenting orders about my children?

Yes. The Family Court is concerned about family violence and wants to make sure it protects children from harm. If you or your former partner alleges:

• that there has been family violence
• there is a risk of family violence
• that there has been child abuse or
• there is a risk of child abuse.

then a Form 4 'Notice of child abuse or family violence' must be filed and served on the person who is alleged to have carried out the family violence or child abuse (as well as any other person who is party to the case).

The Court is required to take prompt action in relation to allegations of child abuse or family violence and may consider appointing an Independent Children’s Lawyer or a single expert witness to assess the allegations of family violence or child abuse made in the Form 4.

Acts of family violence or child abuse are taken very seriously by the Family Court and may prolong the court process in order for investigations into the allegations to be carried out.

What parenting orders might the Family Court make if there has been allegations of family or domestic violence?

If the Family Court determines that there is a risk or there are safety concerns in relation to children when they are considering what parenting orders to make, they will look at what arrangements will be most appropriate in the circumstances, whilst always considering what is in the best interests of the child.

Some of the options that the Court may order are:

• The child spends no time with the parent or party who has allegedly engaged in family or domestic violence or abuse.
• There is supervised time set up between the child and the parent or party who has allegedly engaged in family or domestic violence or abuse. The order can require that another family member or a professional supervises the time the child spends time with the parent or a professional children’s contact service such as Anglicare.
• The child spends very limited time with the other parent or party, for example only a few hours during the day, with no overnight stays.
• The child only spends time with the other parent or party in a public environment, for example a shopping centre or park/playground.
• The parent or party who has allegedly engaged in family or domestic violence or abuse must undergo counselling or partake in a parenting course such as Mum’s and Dad’s Forever Program.

If the Family Court orders any of the above options, it is likely that the orders will be for a limited or set period of time to allow further assessment of the situation and to determine that the child is safe and not at risk.  

What happens if I have a violence restraining order (domestic and family violence) and parenting orders made by the Family Court?

Where you have a violence restraining order (VRO) as well as Family Court orders about your children, the Family Court orders will usually override the VRO to the extent of any inconsistency. An application can be made to make the terms of the VRO consistent with the Family Court orders.

For example, if you have a VRO that states one person cannot go to the other person’s house, but you also have parenting orders that say handover is to take place at that house, the person can go to the house to pick the children up as per the parenting orders, but still cannot attend the house at any other time.

If you already have parenting orders from the Family Court and then you get a violence restraining order (domestic and family violence), the Magistrates Court that grants the violence restraining order (domestic and family violence) can in some circumstances change or cancel any parenting orders but only for a limited time (maximum of 21 days).

You should obtain legal advice about your particular situation.

What can I do if I have to go to the Family Court and I am worried about my safety?

If you have to go to the Family Court and you are worried about your safety, the Court has a number of processes in place to ensure client safety. It is possible to arrange for separate interviews and waiting areas can be requested and arranged as well as telephone or video conferencing.

In cases involving your children, you and your ex partner can be separated at the beginning of a conference for a risk assessment. Separate entry and exit points can also be organised for when you arrive and leave the Family Court building and it may be a good idea to travel with friends or family.

It is important that you notify the staff at the Court if you have concerns about your safety, which you can do so by calling your Case Coordinator or the Court’s Call Centre on (08) 9224 8222 or 1800 199 228.

Is there anything the Family Court can do to protect me and my children from family violence or harassment?

You can ask the Family Court for an injunction to protect yourself or your children from family violence or from other types of behaviour that are intended to harass you or your family. The Family Court can make injunctions on a range of issues including to:

• protect you and/or your children physically, emotionally or mentally
• allow you and/or your children to live your lives without being disturbed by others
• stop your ex-partner from harassing, molesting, abusing or interfering with you and/or your children
• stop your ex-partner going near the children or their home/school/workplace
• stop your ex-partner (or another person) removing your children from the state, country or another person's care
• prevent the children from being brought into contact with a particular person (eg a relative or friend) if this contact would not be safe for your children.

You can seek an injunction on an "ex parte" basis (without the other person being present in Court or knowing about the application) if something is urgent or if there would be a risk to you or your children if the other person were to find out about your application.

The Court can also make injunctions against other people (known as "third parties"), for example grandparents, other relatives or new partners.

It is not a criminal offence to breach (break) an injunction. In most cases the police will not act on an injunction unless it specifically directs them to do so or gives them clear power to do something. However, if a person breaches an injunction, the Court has various powers including to charge the person with contempt of court, make the person pay a fine or send the person to prison.

Wherever possible, you should get legal advice about your particular situation before making an application for an injunction.

What if the Department for Child Protection (DCP) is involved or I have a case in the Children's Court?

If the Department for Child Protection (DCP) is involved or you have a case about your children in the Children's Court, see Protection and care matters.

Where can I go for assistance?

If you or someone else is at immediate risk of harm, call the police on 000.

If you have experienced family violence or you are at risk of family violence, you can call the Legal Aid InfoLine on
1300 579 650 or Legal Aid WA's specialist Domestic Violence Legal Unit on (08) 9261 6254, for assistance and appropriate referrals.

If the Department for Child Protection is involved with your family because of family violence and you have a case in the Children's Court, for more information please see Children's Court (Protection) Services and Protection and care matters.
 

Last reviewed: 22/11/2012