Family Violence & Child Custody: Legal Considerations & Strategies

Navigating the complexities of child custody proceedings amidst instances of family violence demands both legal expertise and empathy. At Duffy & Simon, our family violence lawyers understand the sensitive nature of these cases and are committed to providing comprehensive guidance tailored to the unique circumstances of each client.

Understanding Family Violence in the Context of Child Custody

Family violence encompasses a spectrum of behaviours, including physical, emotional, psychological and financial abuse, which can have profound and lasting effects on both adults and children. In Australia, the Family Law Act 1975 defines family violence broadly to include any behaviour that causes a family member to fear for their safety or wellbeing. The act includes examples of family violence that include (but are not limited to): 

  • 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 he or she would otherwise have had
  • Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her 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 his or her family, friends or culture
  • Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

Even if the child is not directly experiencing any of the above, witnessing family violence is increasingly being recognised as a form of child abuse. When determining child custody arrangements, the court prioritises the best interests of the child above all else. This includes considering any history of family violence and its potential impact on the child’s safety, welfare and development.

Legal Considerations & Protections

Clients involved in child custody disputes where family violence is a factor will benefit from understanding their legal rights and the protections available to them. Seeking the counsel of experienced family law lawyers is essential to navigate the legal framework effectively. Here are some key considerations and protections:

Applying for Intervention Orders

In cases where there is a risk of harm, obtaining an intervention order (commonly known as a restraining order) can provide protection for both the victim and the child. These orders can impose conditions to prevent contact or proximity between the perpetrator and the victimised family member. If you require immediate protection, you can also request an interim intervention order that provides protection until both parties can appear in court.

Safety Planning

Developing a comprehensive safety plan is crucial for clients experiencing family violence. This plan may include strategies for securing alternative accommodation, notifying neighbours so they can call 000 on your behalf if they hear violence, seeking support from family and friends, or accessing community resources such as counselling and support services.

Parenting Orders

The court may issue parenting orders that prioritise the safety and well-being of the child, including supervised visitation or prohibited contact between the perpetrator and the child. These orders aim to minimise the risk of further harm while ensuring the child maintains a meaningful relationship with both parents when appropriate.

Independent Children’s Lawyer (ICL)

In particularly contentious cases, the court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s interests. The ICL advocates for the child’s best interests, independently of the parents’ positions, and provides valuable insights to the court. An ICL is most commonly considered when there is a high level of conflict and dispute between the parents, there are allegations of family violence, and there are allegations made as to the views of a child.

Strategies for Resolution

Resolving child custody disputes involving family violence requires a strategic and nuanced approach. At Duffy & Simon, we employ a range of strategies to achieve positive outcomes for our clients, including:

Family Dispute Resolution (FDR)

While mediation may not be suitable in cases involving family violence, alternative dispute resolution methods can offer a less adversarial approach to resolving conflicts. If you have experienced family violence, you can apply for Parenting Orders without trying FDR and without a certificate. A family lawyer will be able to provide advice and help you decide whether or not to attempt FDR.

Gathering Evidence

If your aim is to gain sole custody of your child, it’s beneficial to provide proof of family violence. Building a strong case requires gathering evidence of family violence, including police reports, medical records, witness statements, and expert testimony. This evidence is crucial in substantiating claims and advocating for the safety of the client and their child.

Expert Testimony

Engaging expert witnesses, such as psychologists or child welfare specialists, can provide valuable insights into the impact of family violence on the child’s well-being and inform the court’s decision-making process.

Advocacy & Representation

The family court system is intimidating and complicated at the best of times, let alone when you’re also dealing with family violence. Our team of dedicated family lawyers is committed to advocating fiercely for clients’ rights and interests throughout every stage of the legal proceedings. We provide compassionate support and strategic guidance to empower our clients to navigate challenging circumstances with confidence.

Contact Duffy & Simon for Legal Advice & Support

At Duffy & Simon, we recognise the gravity of child custody disputes involving family violence. Our team is dedicated to providing compassionate and effective legal representation for our clients. If you are facing such a situation, we encourage you to reach out to our experienced team for personalised guidance and support. Your safety and the well-being of your child are our top priorities, and we’re here to help you navigate this challenging process with diligence and care. Call Duffy & Simon today on 1300 537 345 for more information and legal advice.