Domestic Violence and Special Needs

Unfortunately, violence and abuse are too often a part of family life. Domestic violence may be the cause of separation or divorce.Sometimes a separation or divorce triggers a violent response.

Laws governing the Family Law Courts (as well as the laws of States and Territories) provide procedures to follow if you or your child have been, or may be, subject to violence or abuse.

This eBook discusses those procedures as well as the steps you should take if your child has been abducted. Finally, it addresses the steps a parent must take before children with special needs can undergo certain kinds of serious medical procedures.

This eBook provides general information about sensitive and difficult subjects. If you need help with family violence, child abuse, child abduction, or medical procedures for special needs children, you should consult with a family law attorney. While this eBook is a starting point that will help you be better informed, an eBook cannot give you legal advice. You can only get legal advice from a lawyer.

Child Abuse and the Family Law Act

The Family Law Act 1975 defines child abuse as:

• The physical or sexual assault of a child; or
• Causing a child to participate in sexual activity as a sexual object; or
• Causing a child to suffer serious psychological harm; or
• Serious neglect of a child.

Principles to protect all family members from family violence

A governing principle of the Family Court requires the court to protect the rights of children, to promote their welfare, and to protect all family members from family violence. The Family Court must always promote the best interests of the children, which includes protecting children from physical or psychological harm. The court’s objective is to assure that children are not “subjected to, or exposed to, abuse, neglect or family violence.” Protecting children from harm is a primary consideration when the court determines what is in a child’s best interests.

Dispute resolution when child abuse or violence is feared

As is discussed in detail in Family Dispute Resolution (Mediation), another eBook in this series, parents must usually make an effort to resolve their parenting disputes before applying to the Family Court for a parenting order. An exception to that requirement is made when a parent fears that a child is being abused or is at risk of being abused. A court may excuse compliance with the family dispute resolution requirement if it is satisfied that a child has been abused by a parent or that the child would be placed at risk of abuse if a parenting order were delayed by family dispute resolution.

Duty to notify court of abuse/violence

If a parent or independent child’s lawyer believes that a child has been abused or is at risk of being abused, that person must file a notice with the court and must serve a copy of the notice upon the alleged abuser. The court must then notify a child welfare authority so that the abuse allegation can be investigated. In addition, the court must promptly:

• Make any orders necessary to protect the child from harm;
• Make orders necessary to obtain evidence about the truthfulness of the allegations;
• Decide whether to obtain documents or information from State or Territory agencies concerning the allegations; and
• Consider whether an injunction should be entered.

Injunctions

An injunction entered in Family Court proceedings can prohibit an abuser from:

• Living with the child;
• Spending time with the child;
• Communicating with the child; or
• Entering a place where the child lives, works, or attends school.

The court can include such other conditions in the injunction as it deems appropriate to provide for the child’s best interests.

Appointment of independent lawyer

If the court believes that one parent is not protecting a child from the other parent’s abuse or is concealing the other parent’s abuse, the court can appoint an independent lawyer to represent the child’s best interests. That lawyer does not represent the child (that is, the lawyer is not required to follow directions given by the child) but instead represents the best interests of the child. The independent lawyer can interview the child and take other action to investigate suspicions of abuse and can refer the child to an appropriate child welfare authority if further investigation seems warranted.

Family Violence and the Family Law Act

The Family Law Act 1975 defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.” Family violence can include:

• A physical or sexual assault;
• Stalking;
• Making repeated derogatory taunts;
• Intentionally damaging or destroying property;
• Intentionally harming pets;
• Unreasonably withholding financial support needed for living expenses or preventing a family member from being financially independent;
• Preventing a family member from having contact with family, friends, or culture; and
• Imprisoning or otherwise depriving a family member of his or her liberty.

As is true when child abuse is alleged, an allegation that family violence has occurred or that there is a risk of its occurrence can, if accepted by the Family Court, excuse compliance with the requirement to attend Family Dispute Resolution before seeking a parenting order. And as is true in the case of child abuse, if a person seeking a Family Court order believes there has been family violence to a party to the proceedings or that a party is at risk of experiencing family violence, that person must file a notice with the court and serve a copy upon the alleged abuser.

If such a notice is filed in a proceeding seeking a parenting order, the court must consider those allegations when deciding how to fashion a parenting order that protects the other parent from family violence.

Family Violence Orders

States and territories each have their own laws providing for the protection of family members from violence. They generally permit local courts to enter injunctions or restraining orders that prohibit an individual from taking certain actions. Prohibited actions might include:

• Using or threatening violence against specified family members;
• Harassing specified family members;
• Having physical contact with specified family members;
• Having any contact (including by telephone) with specified family members;
• Coming within a certain distance of specified family members; and
• Coming within a certain distance of a place where a family member lives or works.

Family violence orders have different names in different places. They are called:

• Protection Orders in Queensland and ACT;
• Apprehended Domestic Violence Orders in New South Wales;
• Intervention Orders in Victoria;
• Restraining Orders in the Northern Territories, South Australia, & Western Australia; and
• Restraint Orders in Tasmania.

Family violence orders issued after a parenting order is entered

A family violence order may prohibit contact that has been authorized in a parenting order issued by the Family Court. However, it may do so only if it has information concerning the risk of violence that was not presented to the Family Court before the Family Court entered the parenting order.

Parenting orders entered after a family violence order is issued

Parties to Family Court proceedings are required to inform the Family Court of the existence of a family violence order that has been made by the court of a state or territory. To the extent that it is possible, the Family Court must not enter an order that is inconsistent with a family violence order.

The Family Court is nevertheless authorized to permit contact that is prohibited by a family violence order if it deems such contact to be in a child’s best interests. To the extent that the Family Court does so, the family violence order is invalid. The family violence order only becomes invalid, however, if the Family Court is aware of it and expressly mentions the family violence order in its order permitting contact. If the Family Court makes an order permitting contact that is prohibited by a family violence order, the court must explain why it is permitting the contact and must explain in detail how the contact is to occur.

Child abduction

If your child has been taken by a parent who is not entitled to have the child, you can apply to the court for a location order that requires any person having knowledge of the child’s location to provide that information to the court. Any person responsible for the care, welfare, or development of the child may apply for a location order.

The court may also enter a recovery order that directs the return of the child to a person who has rights specified in a parenting order. The recovery order may authorize vehicles to be stopped and premises to be searched in order to recover the child. It may also authorize the arrest of the person who has taken the child (including a parent when a parenting order has not authorized that parent to have the child).

In the case of international child abduction that is, your child has been taken to another country without your permission you may be able to seek a remedy under one of several laws known collectively as the Hague Convention. If your child was taken to a country that has agreed to the terms of the Hague Convention, you will need to complete an abduction application. The application will be accepted if:

• Your child is under the age of 16;
• You have “rights of custody” of your child (for instance, a parenting order specifies that the child is to live with you);
• Your child was living in Australia;
• Your child was removed from Australia without your consent and without a court order; and
• Your child was taken to a country that is a member of the Hague Convention.

You can also receive assistance from the Australian government if your child was taken to Egypt or Lebanon. If your child was taken to another country that is not a member of the Hague Convention, you will probably need to retain a lawyer in that country. The local office of the Department of Foreign Affairs and Trade may be able to help you find an attorney.

If you think your child is in imminent danger of being removed from Australia without your consent, contact a family law attorney or the Family Court immediately. You may be able to obtain an emergency order that prevents your child from being removed from Australia. The order can be sent to airports and other ports of exit from Australia.

Medical procedures

Most of the time, parents have both the right and the obligation to make decisions about their children’s health care. In routine and emergency situations, parents may make those decisions without seeking the permission of the Family Court. In some unusual situations involving children with special needs, however, the law requires Family Court approval for medical procedures.

Parents must seek court approval of medical procedures when:

• The child is a minor;
• The procedure may permanently affect the child’s quality of life;
• There is a significant risk that the procedure would not be in the child’s best interests; and
• The child is unable to give informed consent to the procedure.

Children are capable of consenting to a procedure when they are sufficiently intelligent and mature to understand the procedure and its consequences. A child who is not old enough to make mature decisions, who is brain damaged or intellectually impaired, who suffers from a mental disorder that impairs decision-making, or who is caught in the middle of a dispute between two parents is not capable of consenting to a serious medical procedure.

The clearest instance in which court approval is required involves a parental request to sterilize a child who is developmentally disabled. Other procedures that may require court approval include:

• Organ donations;
• Gender reassignment surgery;
• The decision to remove a child from life support;
• Treatment for a life-threatening condition that parents refuse to permit; and
• Treatment for a life-threatening condition that the child refuse to permit.

You should seek legal advice if you or your child must make decisions about a serious medical procedure that could permanently affect the quality of your child’s life.

Warning and Disclaimer
Domestic Violence and Special Needs by Alan Weiss is a self-help eBook written from the perspective of the author. The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.