How does family violence impact parental responsibility?

Domestic violence is a significant issue in Australia, with a high prevalence rate affecting individuals and families across the country. 

By Jessica Koot, Practice Leader at Australian Family Lawyers Wollongong.

As such, family law and family and domestic violence legislation in Australia plays an essential role in ensuring the safety and well-being of those affected.

In some cases, the victims of the violence can extend to children of the relationship. Then, how does Australian family law apply to domestic or family violence in situations with children?

In this article, we examine how parental responsibility is legislated and affected by family and domestic violence in family law.

Before anything, if you feel unsafe or if you and/or your children are in immediate danger, you should contact the Police on Triple Zero (000) for assistance.

How does family violence affect parental responsibility?

Firstly, below we’ll look at the definitions of:

• equal shared parental responsibility
• parental responsibility
• the effect of parenting orders that provide for shared parental responsibility. 

What is the presumption of equal shared parental responsibility?

Section 61DA of the Family Law Act 1975 creates a presumption of equal shared parental responsibility. This means that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

This means that both parents will have the same level of responsibility for making decisions about the child, such as their education and health care. However, it’s important to note that this doesn’t mean equal time with each parent. That’s a common misconception that many parents have.

The presumption of equal shared parental responsibility was introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The reasoning behind it is to ensure that both parents are involved in their child’s life and that important decisions are made jointly.

Similarly, according to Section 61B of the Family Law Act, “parental responsibility” refers to all the duties, powers, responsibilities, and authority that parents have in relation to their children. Section 65DAC of the Family Law Act further defines the effect of parenting orders that provide for shared parental responsibility. 

• This section applies if, under a parenting order, two or more persons are to share parental responsibility for a child; and the exercise of that parental responsibility involves making decisions about major long-term issues in relation to the child. 
• Subsection 2 provides that the order is taken to require the decision to be made jointly by those persons. 
• Subsection 3 confirms that the order is taken to require each of those persons to consult the other in relation to the decision to be made about that issue; and to make a genuine effort to come to a joint decision about that issue.

What is the difference between major long-term issues and day-to-day issues?

The definition of major long-term issues is defined in Section 4 of the Family Law Act as follows “Major long-term issues, in relation to a child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and 

(c) the child’s health; and 

(d) the child’s name; and 

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

The Act also confirms: “To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

However, subject to any parenting order being made to the contrary, decisions about day-to-day issues can be made by the parent who has care of the child on that day. 

Section 65DAE of the Family Law Act confirms that there is no need for parents to consult each other on issues that are not major long-term issues for children. The Act notes that “this will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.” 

When does the presumption of equal shared parental responsibility not apply?

The Family Law Act recognises that children should be protected from harm, abuse, or family violence, and the safety of the child and parent is always the court’s primary concern.

As such, Subsection 2 of Section 61DA of the Family Law Act confirms that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

1. Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
2. Family violence.

Subsection 3 provides that when the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. 

Under Section 61DA(4), the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Doherty & Doherty [2016] FamCAFC 182

In the case of Doherty & Doherty [2016] FamCAFC 182, the Full Court of the then Family Court of Australia found that there was no error in an order granting sole parental responsibility as to some matters but equal shared parental responsibility as to others.

In that case, the court found that the presumption of equal shared parental responsibility was rebutted as the father had perpetrated family violence on the mother during the relationship and it was not in the best interests of the child for the parents to share parental responsibility.

The court also found that the parents, in this case, did not exhibit the capacity to communicate with each other usefully about matters of significance to the child. 

What constitutes family violence under the Family Law Act? 

Section 4AB of the Family Law Act defines family violence as “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.” 

The court recognises that family violence is not just physical. Subsection 2 sets out some examples of behaviour that may constitute family violence, noting that the list is not inclusive. These examples include:

• 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; 
• unreasonably denying the family member the financial autonomy that they would otherwise have had; 
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when the family member is entirely or predominantly dependent on the person for financial support; 
• preventing the family member from making or keeping connections with their family, friends or culture; or
• unlawfully depriving the family member, or any member of the family member’s family, of their liberty. 

Subsection 3 confirms that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Subsection 4 confirms that examples of situations that may constitute a child being exposed to family violence include:

• overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; 
• seeing or hearing an assault of a member of the child’s family towards another member of the child’s family; 
• comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; 
• cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or 
• being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family. 

If you feel unsafe or if you and/or your children are in immediate danger, you should contact the Police on Triple Zero (000) for assistance.

For further information, you can also read our guide to safely exiting a relationship with domestic violence here.

The Family Law Amendment Bill 2023

The Family Law Amendment Bill 2023 has been introduced to the parliament. The Bill proposes extensive amendments to the Family Law Act. The Bill was introduced to address recommendations of the Australian Law Reform Commission’s final report No 135: Family Law for the Future – an inquiry into the family law system, as well as elements of the government’s response to the Joint Select Committee on Australia’s family law system. 

One of the proposed amendments is to repeal Section 61DA and the presumption of equal shared parental responsibility. The decision to repeal this presumption recognises that there are often family violence, health and substance abuse concerns in family law matters that are brought before the court. Requiring the court to consider presumptions about parental responsibility can detract from the focus of the court on the best interests of the child. 

The Bill proposes a new subsection 61D(3) that will provide that with the removal of the presumption of equal shared parental responsibility, the court may still make orders providing for joint decision-making about major long-term issues, and parties can continue to agree to such matters between themselves. The court will still be required to consider the allocation of parental responsibility and responsibility for decision-making about major long-term issues whenever this is raised by one of the parties or on its own motion.

Next steps?

If you need a skilled and sensitive family law expert, our lawyers are experts in domestic, family, and sexual violence in the realm of family law. We understand the impacts of family violence on our clients and their children and that it can have substantial long-term impacts on victim-survivors, including children who have witnessed family violence.

• If you feel unsafe or if you and/or your children are in immediate danger, you should contact the Police on Triple Zero (000) for assistance.

• Free and confidential legal advice is also available from national services such as Women’s Legal Service Australia and Legal Aid. For referrals to services in your local area, contact 1800RESPECT.

• Read our guide to exiting an abusive relationship safely here.

• If you need family violence law advice regarding domestic violence and parental responsibility, contact us directly or request a callback via the form below.