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Family law and children at risk of harm

Family law and children at risk of harm

 IMPORTANT

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

 

On 5 October 2013 parallel changes were made to the Family Court Act 1997 (WA) to ensure that the definitions of the terms "abuse" and "family violence" were included as considerations when determining best interest for children for West Australian children born from de facto relationships, same sex relationships or from people who had a short relationship or were never married. 

 

The Family Court places significant importance on protecting children from abuse , sometimes over and above the need to have a meaningful relationship with parents. 

 

While legislative changes are now the same for married and unmarried couples in Western Australia, parties that commenced proceedings before the changes came into force will still have their matters determined by the old definitions and law.  Where the law is different due to when proceedings commenced is indicated below.  


What sort of harm does family law aim to protect children from?

What sort of harm does family law aim to protect children from?

Family law aims to protect children from:

  • physical or psychological (including emotional) harm
  • abuse
  • neglect
  • family violence.

Family law is clear that children can be harmed by abuse, neglect and family violence both from these things being directed at them, and through the children seeing and hearing these things being directed at someone else, such as a family member.

Abuse against children includes assaults, including sexual assaults and involving children in sexual activity and making them sexual objects. Abuse can also involve serious psychological harm including subjecting or exposing a child to family violence. Emotional abuse can include name-calling and putting a child down. Neglect can include not looking after a child's needs or providing a safe home for them to live in.

Family violence can have other significant impacts on children. No violence is acceptable. For more information, see Family violence and family law.

What is abuse?

The following definition will apply to you if:

  • You are or were married and started your Family Court proceedings after 7 June 2012 , or 
  • You were in a de facto, same sex, short relationship or never in a relationship with the other party and started your Family Court proceedings after 5 October 2013.  

Family law defines abuse in relation to children as:

  • an assault (including sexual assault)
  • a person involving a child in sexual activity where that child is used as a sexual object and where there is an unequal power in the relationship between the child and people involved
  • causing a child to suffer serious psychological harm (this includes exposing that child to family violence), or
  • serious neglect.

When making Family Court orders in relation to children, the Court is required to put your children’s safety first before anything else. If an allegation of child abuse has been raised with the Family Court you should seek legal advice.
 
The following will apply to you if:

  • You are or were married  and started your Family Court proceeding before 7 June 2012, or
  • You were in a de facto, same sex, short relationship or never in a relationship with the other party and started your Family Court proceedings before 5 October 2013. 

Family law defines abuse in relation to children as:

Family law defines abuse in relation to children as:
  • an assault (including sexual assault) of a child which is an offence under law, or
  • a person involving a child in sexual activity where that child is used as a sexual object and where there is an unequal power in the relationship between the child and people involved.

If an allegation of child abuse has been raised with the Family Court you should seek legal advice.

What is family violence?

For information on family violence, see Family violence and family law.

What should I do if I am concerned that my child is being abused or is at risk of being abused?

You need to seek legal advice if you have these concerns. If you have started or are thinking about starting a case in the Family Court, you will need to file a Form 4 Notice of child abuse or family violence and an appropriate affidavit to let the Court know about your concerns. It is best to have legal assistance in filling out these documents.

You also need to seek legal advice about whether you need to attend family dispute resolution (FDR) before starting a case in Court. One of the exceptions to going to FDR is that there has been child abuse or family violence or that there is a risk of child abuse or family violence if there is any delay. For further information, see Family dispute resolution and Family violence and family law.

What does the Family Court do if there are allegations of child abuse or family violence?

The Family Court is concerned about family violence and wants to make sure it protects children. Where there is an allegation of child abuse or family violence, the Court must take prompt action. The Court must consider:

  • making any temporary orders to gather evidence about the allegation of abuse or family violence
  • making any temporary orders to protect the child or family member as quickly as possible
  • making an order to obtain documents or information from other agencies such as the Police, and
  • the option of granting an injunction.

The Court may also order that an independent children's lawyer (ICL) be appointed to represent the child's best interests in proceedings. For further information, see Independent children's lawyer (ICL) in the Family Court.

How do we work out arrangements if there are allegations of abuse or family violence?

The most important thing to consider when making arrangements for children is always what is in their best interests. For further information, see Best interests of the child. Legal advice can assist you to understand how this might apply to your particular situation.

If there has been family violence or child abuse or you think there is a risk of violence or abuse, then seek legal advice about your children spending time with the other parent.

As a parent, you need to act protectively. You should make sure that your children are not put in harm’s way. This means ensuring they are not harmed by family violence, abuse or neglect, including by being exposed to those things.

You also need to be mindful of your own safety. Discussing issues directly with the other parent may not be a safe option for you or your children.

If the other parent has brought up allegations of child abuse or family violence against you, you should seek legal advice.

What can I do if CPFS starts a protection and care case?

Legal Aid WA provides a legal service for parents of children in protection and care cases at the Children's Court. For more information, see Children's Court (Protection) Services.

In the Children's Court of WA a child representative might be appointed for your child. This is a lawyer for the child. For more information, see Child representatives in the Children's Court and Protection and care matters.

Where can I get more information?

  • Contact the Legal Aid WA InfoLine on 1300 650 579.
  • Legal Aid WA has a duty lawyer service at the Family Court in Perth which can assist in specific circumstances. For more information about this service, see Family Court Services (Duty Lawyer) or call the Legal Aid WA InfoLine.
  • Contact the Family Relationship Advice Line on 1800 050 321.
  • Contact the Department for Child Protection and Family Support  (08) 9222 2555 or 1800 622 258 (freecall STD).
  • Contact Kids Helpline on 1800 551 800 for some useful resources for teens and children wanting to know more about abuse.
  • Go to Bursting the Bubble which is aimed at kids who may be affected by abuse.
  • Go to the When Separating website. Here you will find short films about family law and other helpful information and links for families experiencing separation.


Last reviewed: 15/10/2013

Last modified: 18/09/2015 12:12 PM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.