Children & Domestic Violence Matters: How the Court Prioritises Safety

When family relationships break down due to domestic violence, understanding how NSW courts protect children in parenting arrangements is crucial for ensuring their safety and wellbeing. The Court takes this into consideration, instances of domestic violence, when determining parenting arrangements. The Court has a primary concern about the immediate and long-term effects that domestic violence can have on the child, especially as the protection of a child from harm is paramount. 

How do courts weigh domestic violence allegations in parenting cases? 

It is important that the Court prioritises the safety and wellbeing of children at all times. There are two legal principles that the Court considers when determining parenting arrangements, especially when there has been evidence of domestic violence. They are: 

1. Ensuring that children develop a meaningful relationship with both parents, consistent with the child’s best interests (s 60B(1)(a) of the Family Law Act); and 
2. Ensuring that children are protected from physical and psychological harm, abuse, neglect and domestic violence (s 60B(1)(b) of the Family Law Act). 

It is important to note that the Court considers what a meaningful parental relationship looks like, by having consideration to the child’s best interests. If the parent has exposed the child to domestic violence, then a meaningful relationship could mean the child has no contact, supervised contact, or phone contact with the parent. 

Domestic violence also abolishes a presumption of equal shared parental responsibility. This presumption does not mean that parents will necessarily spend equal time with the child. This is important in domestic violence cases to ensure the child is protected from harm. 

For expert guidance on child custody matters involving domestic violence, experienced family lawyers can help navigate these complex proceedings whilst prioritising your children's safety.

What decisions can the court make about parenting arrangements?

Domestic violence impacts the protective orders and decisions the court can make in regard to parenting arrangements. The arrangements will become more serious if the acts of domestic violence toward the child are severe. Below are some examples: 

• The Court may decide for the child to have limited or supervised visitation with the abusive parent. This means the child will spend time with the parent under the supervision of a third party. 
• The abusive parent may lose custody or visitation rights. 
• The Court may require the abusive parent to complete intervention programs like anger management or domestic violence counselling, before considering changes to custody rights or visitation arrangements. 

When the Court is looking to make parenting orders, it is important the parties inform the court of any domestic violence orders, like an Apprehended Domestic Violence Order (ADVO). This helps the Court ensure they do not expose parties to an unacceptable risk of domestic violence. 

How do ADVOs impact parenting orders? 

An ADVO is a legal instrument that is issued by NSW Courts to protect individuals who have experienced or are experiencing domestic violence. They impose restrictions on the perpetrator such as the prohibition of harming or threatening the other person. This is an important document that you can seek if you are experiencing domestic violence. 

Uncertainty can be created if an ADVO is sought when there are already parenting orders in place. This is because ADVOs operate under state law and are issued by the Local Court, whereas parenting orders operate under Federal law. Thus, parenting orders override conditions imposed by an ADVO.

In cases where domestic violence triggers the breakdown of a relationship, an ADVO may be sought before parenting orders are made. It is important that if domestic violence is directed at a child, that their name be placed on the ADVO. When children are involved, the ADVO may impose restrictions on contact and include specific provisions. This can also allow for parents to communicate only through their legal representatives. Whilst court orders may conflict with an ADVO, the Court will highlight this inconsistency before finalising a parenting order. 

If you need further advice on taking out an ADVO, it is always best to speak to the Police or your legal representative. 

What evidence is required in domestic violence cases?

When parenting cases involve domestic violence, it is important to ensure you understand the evidence and documentation you should provide. Evidence supplementing domestic violence is significantly important to help the Court provide adequate protection and support for yourself, your children and any other parties involved.

The types of evidence that can be used in Domestic violence cases include:

• 
  Police reports: these will contain details of the abuse like important dates, times and descriptions. These can be obtained if you have reported the incident to the police.
• Medical records: these can be obtained if you have physical injuries from the abuse. This includes hospital records, doctor’s notes or even photos of your injuries.
• Witness statements: from anyone including family, friends, neighbours or colleagues who have witnessed the abuse.
• Text messages, emails and social media posts: that contain threats, harassment or abusive language towards you or your children.
• Audio and visual recordings: that showcase the abuse. It is important that these recordings comply with Australian privacy laws.
• Photographs of injuries, property damage or other evidence: Ensure these images are dated and documented so your evidence is credible. 
• Previous protection orders: these are helpful for the Court to see that there is an ongoing risk of harm and allows them to recognise that you or your children need to be protected. 

It is important to ensure you screenshot or save this evidence as it comes through. Obtain police reports, witness statements and medical records as early as you can. If you have any concerns about the collection of evidence, it is best to seek legal advice. 

 If you are seeking parenting orders to be made in Court, it is compulsory that you have a notice of child abuse, family violence or risk, filed by your solicitor. This is in addition to your initiating application, application for consent orders or response. 

Conclusion

It is always important to report domestic violence, seek protection from harm and document evidence as soon as possible. This will ensure you and your children are safeguarded from violence, without loss to your parental rights. It is important that you speak to a lawyer in these scenarios. 

If you're facing domestic violence in a family law context, don't navigate these challenges alone. Contact our experienced family law team who understand the complexities of domestic violence cases and can provide the expert guidance you need during this difficult time. For personalised legal advice on your specific situation, our specialist family lawyers provide compassionate support whilst fighting for your family's safety and security.