How Family Violence Affects Parenting Orders

The two primary considerations

When making parenting orders, the court's paramount consideration is the best interests of the child. This principle is given specific content through Section 60CC of the Family Law Act 1975, which sets out the matters courts must consider.

Under Section 60CC(2), there are two primary considerations courts must treat as most important:

• Section 60CC(2)(a) — Meaningful relationship: the benefit to the child of having a meaningful relationship with both parents.
• Section 60CC(2)(b) — Protection from harm: the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

While both considerations are primary, Section 60CC(2A) provides that in determining how to weigh them, courts must give greater weight to Section 60CC(2)(b) — protection from harm. Where there is genuine tension between maintaining a relationship with a parent and protecting a child from violence, safety takes priority.

The equal shared parental responsibility presumption

Prior to the Family Law Amendment Act 2023, Section 61DA created a presumption that it was in the best interests of a child for the parents to have equal shared parental responsibility. That presumption did not apply where there were reasonable grounds to believe a parent (or a person living with a parent) had engaged in family violence or abuse of the child.

The Section 61DA presumption was repealed by the 2023 amendments, which took effect in May 2024. Under the current framework, courts assess all relevant considerations through the Section 60CC factors without a starting presumption. The protection of children from harm is given greater weight wherever it conflicts with the benefit of maintaining relationships, and courts are not required to consider equal time or substantial and significant time arrangements where violence concerns arise.

In practice, the effect is similar to the position under the old law when the presumption was rebutted: where family violence is established, the court focuses on what arrangements best protect the child's safety, which may include limited supervised contact or, in extreme cases, no contact at all.

What constitutes family violence

The Family Law Act 1975 defines family violence broadly under Section 4AB. Family violence means violent, threatening or other behaviour by a person that coerces or controls a family member, or causes that family member to be fearful.

Forms of family violence under Section 4AB(2) include:

• Physical violence — assault, physical abuse, or threatening behaviour.
• Emotional and psychological abuse — intimidation, harassment, verbal abuse, manipulation.
• Economic abuse — controlling finances, preventing employment, economic coercion.
• Stalking — following, watching, monitoring communications.
• Social isolation — preventing contact with family, friends, or support services.
• Property damage — destroying or damaging possessions, harming pets.
• Exposing children to violence — causing children to witness or be exposed to violence.
• Threats — threatening harm to a person, child, pets, or property.

Courts also consider historical violence, patterns of behaviour, and the cumulative effect of incidents. A single serious incident or a pattern of lower-level behaviour can both establish family violence for the purposes of the Act.

Evidence courts consider

When assessing allegations of family violence, courts consider a range of evidence. The Family Law Act does not require corroboration of family violence allegations, but courts will assess all available evidence in making findings. Commonly considered material includes:

Police records

• Intervention orders (current and historical)
• Police attendance records and reports
• Criminal charges and convictions
• Police statements and event chronologies

Medical evidence

• Hospital and emergency department records
• GP medical records and notes
• Mental health treatment records
• Photographs of injuries with dates

Communications

• Text messages showing threats or abuse
• Emails and social media messages
• Recorded voicemails
• Screenshots with metadata

Third party evidence

• Statements from family and friends
• Reports from schools or childcare
• Records from family violence services
• Counsellor or psychologist records

Expert evidence

• Family report prepared by a family consultant
• Psychological assessments
• Risk assessments from professionals
• Independent Children's Lawyer investigations

Protective parenting arrangements

Where family violence is established, courts craft parenting arrangements that prioritise child safety while, where safely possible, maintaining some relationship with the non-custodial parent. The arrangements depend on the nature, severity, and recency of the violence.

Courts have a spectrum of available arrangements:

• Supervised contact — time with the child occurs at a supervised contact centre with professional supervisors present, or under supervision by an approved family member. Appropriate where there is assessed risk but potential for the relationship to be maintained safely.
• Supervised handovers — unsupervised time may be allowed but changeovers occur at neutral locations (police stations, contact centres) with a third party present to prevent conflict at transitions.
• Restricted time (no overnights) — daytime contact only without overnight stays. Often used as a transitional step or where the primary risk is in overnight or unsupervised settings.
• Indirect contact only — no face-to-face contact, but telephone calls, video calls, or written communication may be permitted. Used where face-to-face contact poses unacceptable risk but some relationship can be maintained.
• No contact — in the most serious cases, courts may order that a parent have no contact with the child. Reserved for situations where any contact would be harmful to the child's safety or wellbeing.

Courts may also include "step-up" provisions in orders, allowing arrangements to progress from supervised to unsupervised contact over time as conditions are met — such as completion of a behaviour change program or a period of compliance with existing orders.

Safety plans and conditions

Courts have broad power to include protective conditions in parenting orders. These conditions are tailored to the specific risk factors identified in each case and are designed to create safety for both the child and the protective parent.

Location restrictions

• Handovers at neutral locations (police stations, contact centres, public places)
• Prohibition from attending the child's school or activities
• Geographic restrictions on where time may occur
• Prohibition from the other parent's residence

Person restrictions

• Third party must be present during contact
• Specific persons prohibited from being present (new partner, certain family members)
• Professional supervision requirements
• No indirect contact through third parties

Behaviour conditions

• No alcohol or drug use 24–48 hours before or during contact
• Completion of a behaviour change program (e.g. Men's Behaviour Change)
• Ongoing counselling or therapy requirements
• Drug and alcohol testing

Communication restrictions

• Communication only via a parenting app (OurFamilyWizard, AppClose)
• Written communication only (no phone calls)
• Communication only about child-related matters
• No direct contact between parents (all through third party)

Varying orders for safety

If you already have parenting orders but circumstances have changed due to violence, you can apply to vary those orders. Under Section 65D of the Family Law Act, the court can vary parenting orders in certain circumstances.

Grounds for variation

• Significant change in circumstances — discovery of family violence not known when orders were made, escalation of violent behaviour, new incidents of violence, or a change in the child's needs due to the impact of violence can all constitute a significant change warranting variation.
• Fraud, duress, or suppression — if the original orders were obtained through fraud (including dishonest denial of violence), duress, or the suppression of evidence about violence, the court can vary the orders on this basis.
• Breach of safety conditions — repeated or serious breach of safety conditions in existing orders demonstrates that the current arrangements are not protecting the child, justifying more restrictive arrangements.

If you are in immediate danger, contact police on 000. For advice about varying parenting orders due to family violence, consider seeking legal advice from a family lawyer, community legal centre, or legal aid. Emergency support is also available through 1800RESPECT (1800 737 732, 24/7) and Lifeline (13 11 14, 24/7).

Common questions