When we talk about domestic and family violence, the focus often falls on the adult relationship, but children are frequently the silent victims. For the parent trying to shield their child from abuse, knowing what legal protections exist can be overwhelming. Family Law Associate, Breanna Farrell, explains the options available to concerned parents trying to keep their children safe.
Domestic and family violence continues to be a serious issue in Australia, with alarmingly high rates of abuse and violence being recorded year after year.
According to the Australian Institute of Health and Welfare, nearly 25 per cent of all women have experienced violence by a current or former cohabiting partner. While men are also affected, they are three times less likely to experience this type of abuse.
Several high-profile domestic and family violence cases in recent years have shaken the nation and brought these issues to the forefront.
In 2020, Hannah Clarke and her three children were killed by her former partner, the children’s father. The tragedy sparked national outrage and a push for change.
One year later, and 30km from where Hannah and her children were killed, the murder of a woman in another domestic and family violence situation horrified the nation. Doreen Langham was killed by her former partner, Gary Hely, a man with a history of domestic violence. He murdered Doreen after the culmination of more than a year of coercive control, stalking and violence. This appeared to be the straw that broke the proverbial camel’s back in the court of public opinion.
Hannah and Doreen’s murders provoked enough public backlash and front-page headlines to ensure that the Albanese government would commit $4.7 billion in national funding to address family and sexual violence.
Yet, the abuse children experience within violent households is still often overlooked in public discourse. In Hannah Clarke’s case, while the devastating loss of her children was widely mourned, there was little focus on any abuse the children may have suffered before their deaths, and what options would have been open to Hannah or any other parent wanting to protect their child from abuse in their home.
More recently, a Queensland social media influencer was charged with poisoning her child to elicit donations from her followers. While media coverage was widespread, little was said about the role or awareness of the child’s other parent, or how to spot signs of abuse before it’s too late.
In November 2023, the Australian Bureau of Statistics released the details of its investigation into childhood physical and sexual abuse, and the witnessing of parental violence, including prevalence of relationship to perpetrator and disclosure.
Alarmingly, the ABS found an estimated 22 per cent of adults experienced childhood abuse or witnessed parental violence before the age of 15, including:
- 7.5 per cent who experienced sexual abuse
- 9.1 per cent who experienced physical abuse
- 13 per cent who witnessed violence towards a parent by a partner
The Australian Institute of Family Studies (AIFS) researched children’s exposure to domestic and family violence and found that primary prevention of domestic and family violence with children and young people is crucial.
AIFS found that domestic and family violence affects children’s physical and mental wellbeing, development and schooling, and is the leading cause of children’s homelessness in Australia, often co-occurring with child abuse, including sexual abuse.
What must a parent demonstrate to claim their child is at risk?
Section 4AB of the Family Law Act states that family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. For clarity, child abuse includes causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence.
Examples provided in the Family Law Act 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,
- Experiencing firsthand, seeing, or hearing an assault of a member of the child’s family by another member of the child’s family,
- Comforting or helping 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, and
- 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.
Depending on the severity of the concern, you may consider speaking with a lawyer who has experience dealing with high-risk parenting and child protection matters, your child’s treating medical practitioner (if you suspect physical, medical, or sexual abuse), a Child Safety Officer, or the Domestic and Family Violence Service, or the police.
Ensuring that your concerns have been adequately and accurately documented and investigated is crucial in demonstrating to the Federal Circuit and Family Court of Australia that you are taking the safety of your children seriously and that you are the parent willing and able to protect them.
Legal options available to a parent to protect their children from abuse at home
It may be necessary to bring an application to the Federal Circuit and Family Court of Australia.
Some of the Federal Circuit and Family Court’s powers include:
- Taking prompt action in respect of allegations of child abuse or family violence,
- Appointing a separate legal representative to act for the children, known as an Independent Children’s Lawyer,
- Ordering a Family Report or Child Impact Report to ascertain whether the children have suffered significant harm or are at risk of suffering significant harm in the care of a parent,
- Forcing a parent to undergo drug testing or psychological assessment in situations where substance misuse or psychiatric issue afflicts one parent, and
- Preventing contact or preventing a person from approaching a residence or school of the child.
What a court considers when making a parenting order
It is fundamental to remember that parents don’t have rights; they have responsibilities. In Australian Family Law, the children have rights, and it’s their ‘best interests’ that are the paramount consideration for courts when deciding what orders should be in place.
How a court determines the child’s best interests is outlined in section 60CC of the Family Law Act, which includes:
- A consideration of what orders would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child),
- Any views expressed by the child,
- The developmental, psychological, emotional and cultural needs of the child,
- The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs,
- The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so, and
- Anything else that is relevant to the particular circumstances of the child.
Additionally, the court must include consideration of whether there is 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 current family violence order that applies or has applied to the child or a member of the child’s family.
Attwood Marshall Lawyers – specialists in family law matters
Attwood Marshall Lawyers has a dedicated team of family lawyers experienced in helping people through domestic and family violence situations.
If you are experiencing domestic and family violence, there are organisations that can support you.
If you are in immediate danger, please call 000. The police can issue paperwork on the spot to protect you, such as a temporary protection order.
Other support services available include:
- 1800RESPECT (1800 737 732): confidential information, counselling, and support service.
- DV Connect (1800 811 811): a state-wide hotline offering free, professional assistance such as counselling, intervention, transport and emergency accommodation.
- DV Connect Mensline (1800 600 636)
- No to Violence Men’s Referral Service (1300 766 491)
- Lifeline (13 11 14) for crisis support
- Be There app is a bystander empowerment tool that provides information and resources.
If you need help with making an application for a DVO or other issues related to a violent situation, we can help.
Please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call our 24/7 hotline on 1800 621 071.
