How can I reach a parenting agreement after separation when there is family violence and child abuse?

12th December 2016

By Lisa Wagner

Family violence and child abuse are often experienced in separating families.

Yet it has been our experience at Doolan Wagner Family Lawyers over the last 20 years that most family law matters, even the more difficult ones involving complex issues, can be resolved by consent.

How is this possible?

The Family Court is often asked to make parenting orders which set out arrangements for children to spend time with a parent against whom allegations of family violence and/or child abuse have been made.  In these circumstances the Court requires the parties to provide details of how the proposed Consent Orders address those allegations of family violence and/or child abuse.

Consent Orders can then be made by the Court without a contested hearing before a Judge. In fact only about 7% of separating couples have the misfortune of having to endure a final court hearing about their property or children’s matter after a separation.

This is even the experience for those separating families who have experienced family violence.

Your children’s best interests

In all parenting matters the child’s best interests are the paramount consideration. In deciding what types of parenting arrangements will best promote the best interests of a particular child the Court must consider all the factors set out in Part VII of the Family Law Act (1975). The factors comprise a detailed series of objects and principles along with two primary considerations and fourteen additional considerations that the Court must have regard to.

The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.

The second primary consideration is the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. The definitions of abuse and family violence are now, since the amendments to the Family Law Act on 7 June 2012, very broad.

If the two primary considerations are in conflict then the Family Law Act requires that greater weight be given by the Family Court to the safety of the child.

How can you assist the Family Court make Consent Orders in these circumstances?

Along with the primary and secondary considerations set out in the Family Law Act the Family Court is also likely to consider and will be assisted by you providing information and/or details in relation to matters including:

  1. The type of allegations that have been made – how serious are they?

  2. The extent of the child’s involvement in the alleged incident or incidents of family violence and abuse.

  3. What strategies have been included in the Consent Orders to address these issues? For example, are there provisions for supervision orders and if so what additional conditions are attached to this supervision.

  4. Is there any reason to believe that the intention of the proposed Consent Orders is to continue to exert control or make contact with the parent with whom the child lives? In other words, are the motivations for the proposed parenting arrangements genuine?

  5. Are there other relevant issues, e.g. issues of addiction, mental health or significant mental incapacity that may pose a risk to the child?

  6. Have the parties to the proposed Consent Orders received independent legal advice?

  7. Can the Court be satisfied that the Orders have been entered into voluntarily and without undue pressure?

  8. Is the person making the allegations of family violence and/or abuse genuinely satisfied that the Consent Orders do not present as an unacceptable risk to the child?

  9. If an Independent Children’s Lawyer has been appointed in the case, does that Independent Children’s Lawyer agree to the Consent Orders being made?

Further steps can be taken by the Family Court if it is not satisfied that making the proposed Consent Orders is in the best interests of a child.

These matters are extremely difficult to navigate, especially when the stakes are so high.  It is a highly charged area of family law which is extremely personal and sensitive to each of the parties. In these circumstances it is again wise to consider employing expert professional assistance and support along the way.

If you live in Sydney and are separating or involved in family law litigation involving your children and want to talk about how best to approach your particular situation then call us on 9437 0010 or email us on enquiries@familylawyersdw.com.au We have Accredited Family Law Specialists available to speak with you at our St Leonards office situated conveniently on Sydney’s Lower North Shore.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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