How Does Domestic Violence Affect the Presumption of Shared Responsibility?

After a divorce, a Family Law Court is less likely to give shared parental responsibility to a parent who engaged in child abuse or family violence

There are two primary concerns in parenting cases. The first is where the children will live and how much time they will spend with each parent. The second is how the parents will make important decisions about the children.

Important decisions about the children can include where they will go to school, whether they will have elective medical procedures, and the religion in which they will be raised. Ideally, parents will consult with each other and reach an agreement on those issues and any other matter that affect a child’s well-being.

The presumption of shared responsibility

When parents ask a Family Law Court to make a parenting order, the court must decide which parent should be responsible for making important decisions about the children. The court must always do what it believes to be in the best interests of the children.

Section 61DA of the Family Law Act 1975 directs courts to apply a presumption that it is in the best interests of a child for that child’s parents to share equal responsibility for making decisions concerning the child. That presumption requires the court to give equal responsibility to both parents unless the presumption is overcome by evidence that persuades the court it would be in the best interests of the child to have only one parent making childcare decisions.

In some cases, the evidence will easily overcome the presumption. If one parent is serving a long prison sentence or has abandoned the family, it would be senseless to give that parent shared responsibility for making decisions about his or her child. In most cases where both parents are available, interested, and capable of making decisions about their children, the court will follow the presumption by giving them equal responsibility.

The domestic violence exception

An exception to the presumption of shared responsibility exists under two circumstances:

• A parent has abused the child or any other child in his family or in the family of the other parent.
• A parent has engaged in family violence by directing violent or threatening behaviour toward a member of his or her family.
• The exception also applies when a parent allows someone with whom he or she lives to engage in child abuse or family violence.

The loss of the presumption does not mean that a parent who behaved violently toward the other parent will never be granted shared responsibility for parenting. The loss of the presumption requires a parent to prove that shared responsibility would be in the child’s best interests. That will be difficult to do when a parent has abused the child.