A common question we are asked by our clients is how domestic violence affects parental responsibility (decision making) in relation to their children.
Read on to learn more about the effect of domestic violence on the Court’s decision-making process.
Presumption of equal shared parental responsibility
When two parties separate and are in dispute with respect to the care and welfare of their children, the Family Law Courts operate under a presumption (as set out in s61DA of the Family Law Act) that it is in the children’s best interests for both parents to have equal shared parental responsibility in relation to the making of long-term decisions for their children.
Long term decisions include decisions concerning things such as where the children will go to school, whether they will have medical treatment and what religion in which they will be raised.
Idealistically, parents should consult with each other and reach an agreement in relation to these long-term issues and any other decisions of significance affecting their children’s wellbeing.
Presumption does not apply where there has been domestic violence
The presumption of equal shared parental responsibility does not apply in circumstances where there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child):
- Has abused a child or any child in his/her family or in the family of the other parent;
- Has engaged in family violence by directing violent/threatening behaviour towards a member of his/her family.
The presumption of equal shared parental responsibility is also rebutted in circumstances where the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility in relation to long term decisions concerning the children.
The question must then be asked: Do the courts always form the view that that the perpetrator of domestic violence should not make decisions in relation to the long-term issues of their child?
The simple answer is no.
Cases – how domestic violence affects parental responsibility
Bookhurst – Court ordered equal shared parental responsibility despite presumption being rebutted; Ordered Split parental responsibility
In Bookhurst [2019] FamCA 6, the Court made findings in relation to family violence by the father which adversely affected the children. Those findings were sufficient to give the court ‘reasonable grounds to believe’ that there had been family violence, so as to rebut the presumption of equal shared parental responsibility.
Notwithstanding that the Court determined that the presumption of equal shared parental responsibility had been rebutted, the Court said it was still open to make a parenting order which in its terms provides for equal shared parental responsibility as a parenting order must be made in accordance with section 60CA of the Family Law Act, which provides that the child’s best interests is the paramount consideration when making a parenting order.
The Court concluded that it was in the children’s best interests for the Mother to have sole parental responsibility for issues concerning health, religion, cultural upbringing and for the parties to have equal shared parental responsibility in relation to the remainder of the long term issues (including education). The Court’s reasoning for making these orders splitting parental responsibility was that the communication between the parties was poor, and the father had a history of abusive outbursts. However, education was not a controversial issue for the parties and the Court did not anticipate disagreement between the parties in relation to the issue of how the child was educated.
Pilcher & Schneider – Presumption applied and was in the children’s best interests
In Pilcher & Schneider [2007] FMCAfam 1163, there were allegations of family violence. The Court said on the evidence before it, there were not reasonable grounds to believe that there had been family violence by the Father towards the Mother. It was said to be significant that the allegations were ‘broad brush’ allegations made by the Mother in relation to family violence during the relationship (isolation and coercive control), and that she was not alleging any domestic violence post separation or in the last 12 months. The Presumption of equal shared parental responsibility applied, was not rebutted, and equal shared parental responsibility was ordered.
Goode (No. 2) – Presumption did not apply but Equal Shared Parental Responsibility Ordered
In Goode (No. 2) [2007] FamCA 315, the presumption of equal shared parental responsibility did not apply due to allegations by the mother of family violence during the relationship. The Father was heavily involved in decisions in relation to the children. Teh Mother’s submission was based on the parties inability to communicate. Despite the presumption not applying, the court made an order for the parents to have equal shared parental responsibility as it was determined to be in the children’s best interests.
Marrow & Periwinkle – Presumption did not apply and was not in the children’s best interests
In Marrow & Periwinkle [2018] FamCA 637, the Father assaulted his current partner and left her with two black eyes and a split lip while on a family holiday. The Father was later convicted of assault. Whilst the children were not present they were exposed to family violence by hearing the assault, comforting the Mother after the assault and they were present when the police and ambulance arrived. The Father had also pushed the Mother off a boat when the children were present. The presumption of equal shared parental responsibility did not apply due to family violence by the Father towards the Mother. The Father had a history of mental health issues including depression and anxiety. An expert report revealed that the Father showed no insight into his previous violent behaviour.
The Court held having regard to the family violence perpetrated by the Father, including to which the children were exposed, the lack of insight shown by the Father, the Father’s feelings that some of the family violence had been justified, the Father’s ‘unhealthy attitude’ towards the Mother and the lack of co-parenting between the parents, that the Mother have sole parental responsibility in relation to the children. Further orders were made for the children to live with the Mother and spend no time with the Father and that the children not communicate with the Father, unless they requested to do so.
Further Orders were made by His Honour in the form of injunctions protecting the Mother and children from the Father by restraining him doing the following:
-
- “Assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship,
- Engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship,
- Stalking the protected person or a person with whom the protected person has a domestic relationship.
- The father must not enter the premises at which the protected person(s) may from time to time reside or work and from the childrens’ [sic] school.
- The father must not approach or contact the protected person(s) at any place they may be, including specifically [Suburb B], by any means whatsoever, except through the defendant’s [sic] legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.”
How domestic Violence affects Parental Responsibility at Interim Hearings
But what about at an Interim Hearing when the court can’t make determinations about the evidence and what is true and false?
At an interim hearing, the Court is not in a position to make decisions (findings) about the facts of the case (i.e. what is true and what is not true).
This means that a Court cannot except in very unusual circumstances make a decision as to whether party A or party B is telling the truth where the parties disagree as to the truth of a fact/facts in the case. This means, for example, the Court can’t determine whether Party A committed acts of family violence against Party B, where this is a disputed fact between the parties.
For more information about the Court’s approach to Interim Hearings click the following links:
In circumstances where there are allegations of family violence however, the Court’s priority, as in all parenting cases, is the children’s best interests and accordingly, despite the disputes of fact, the Court will act conservatively in the orders it makes, until there is an opportunity to hear the evidence and determine the facts.
Under section 61DA(3) of the Family Law Act, when the court is making an interim order, the presumption of equal shared parental responsibility does not apply if it would not be appropriate in the circumstances for the presumption to be applied when making interim orders.
This section allows the court, in appropriate circumstances, including where there have been serious allegations of family violence, to make orders for one parent to have sole parental responsibility for making decisions in relation to their children, even where the Court is unable to determine whether in fact a parent committed family violence towards the other.
Importantly, just because the court makes a parental responsibility order at an interim stage does not mean that the Court will make the same order at a Final Hearing. At the final hearing, the Court will consider the evidence and must disregard the order for parental responsibility made at the interim hearing: Marvel & Marvel [2010] FamCAFC 101.
How domestic violence affects parental responsibility – what have we learnt?
- Just because there has been family violence does not mean that the court will automatically make an order that one parent have equal shared parental responsibility for making long term decisions for a child;
- Where there has been a finding of family violence, the Court’s paramount consideration is the children’s best interests in determining what orders it is to make;
- The Court can where appropriate split parental responsibility such that the parents make joint decisions in relation to some issues, but not others, where that is in the children’s best interests;
- The orders made by a court for parental responsibility at an interim hearing may be changed and should be disregarded at a final hearing.
Contact Us
It is important to understand how domestic violence affects parental responsibility as it may have an impact on the decisions a Court makes in your case.
Have you recently separated and are you in dispute with the other party about the parenting arrangements for your children? Get in contact with us today to book a reduced rate confidential consultation with one of our experienced Brisbane Family Lawyers to discuss your rights and a plan of attack to help you achieve the best possible outcome for you and your family.
Article drafted by Courtney Barton & Hannah Raddunz
