In deciding on child custody a court must make an order taking into account the paramount consideration of the best interests of the child. The Family Law Act sets out a number of things a court should consider when determining the child’s best interests, firstly, primary objects (S60B) and secondly, further additional considerations (S60CC).
The primary objects that are usually considered in cases of family violence include:
- S60B(1)a – Ensuring children have the benefit of both parents having meaningful involvement in their lives that is consistent with their best interests; and
- S60B(1)b – Protecting children from physical and psychological harm and from being subjection to, or exposed to, abuse neglect or family violence.
The need to protect the children from harm is a paramount consideration in determining their best interest
It’s important to note that the Family Law Act is not trying to promote an optimal relationship with the parent but rather a meaningful one in the child’s best interest. A meaningful relationship is generally defined as something that is significant and valuable to the child. A meaningful relationship might include no contact, phone contact, supervised contact or anything the court determines is in the best interests of the child.
In cases of family violence, these two objects (among others) must be weighed carefully against additional considerations.
Additional Child Custody Considerations
S60CC sets out further considerations that a court must take into account, these include but are not limited to:
- Views of the child;
- Nature of the relationship with the child;
- The willingness and ability for the parents to facilitate a relationship between the child and the other parent;
- Difficulties and expenses of the child spending time with a parent;
- The capacity of the child’s parents to care for the children;
- The attitude of the child; and
- Family violence involving the child or a member of the child’s family.
These considerations are not weighted the same as protecting the child from harm but can sway a court into allowing a certain amount of time with the family violence offender in some cases.
Mediation and family violence
For a couple to seek court orders for parenting, they must attend compulsory mediation. If family violence is an issue, a parent can ask the court to waive this requirement.
What parenting orders can a court make in cases of family violence
If state orders are already in place, for example, a domestic violence order, then the court must be informed, and any parenting orders must be consistent with the state order s60cG. Additionally, the court must not expose parties to an unacceptable risk of family violence.
If violence is being alleged as an issue, a parent can ask for an urgent hearing date and they may also dispense with any need to obtain an S60I certificate
Family violence is common and if you are or know anyone that may be under threat you should contact your local law enforcement authority or ring a domestic violence hotline such as White Ribbon (1800 737 732 ). If you believe you are under immediate threat please call 000.
In summary, it depends on each individual’s situation and there is no cookie cutter answer as to how family violence will affect child custody. The specific details of the violence, the factors in the Family Law Act and previous cases will all form part of the judge’s decisions as to how much or how little custody should be awarded to a parent.