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As part of the Court’s commitment to the protection of vulnerable parties and children in the family law system, safety and risk is considered at all stages of family law proceedings.
The Family Law Act 1975 (the Family Law Act) defines family violence and child abuse. The Court has obligations under the Family Law Act (section 67ZBB) which requires us to take prompt action in relation to allegations of child abuse or family violence.
Notifying the Court about family violence, child abuse or risk
If you have a family violence order, you must tell the Court about the order.
Section 60CF of the Family Law Act states that if a party to the proceedings, or a person who is not a party to the proceeding, is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the Court of the family violence order. A party to the proceedings should file a copy of the family violence order with the Court.
The Notice of child abuse, family violence or risk is a mandatory form for any person who files an Initiating Application, Application for Consent Orders or Response in the Federal Circuit and Family Court of Australia (the Court) seeking parenting orders. It is the way that you notify the Court of any allegations of family violence, child abuse or risk, in parenting proceedings.
Under section 67ZBB of the Family Law Act, the Court is required to take prompt action in relation to allegations of child abuse or family violence. Considerations must be made to:
- determine what interim or procedural orders (if any) should be made to protect the child or any of the parties to the proceedings, and
- obtain evidence about the allegation as expeditiously as possible.
If an interested party to the proceeding answers yes to the following questions in the Notice of child abuse, family violence or risk, a prescribed child welfare authority must be provided with a copy of the form and may also be provided with other court documents and information, as is required, to enable investigation of the contents of the form:
- Has a child to whom proceedings relate been abused (or are they at risk of abuse) by a party to proceedings or any other person relevant to these proceedings?
- Do you allege that a child to whom the proceedings relate has suffered (or is at risk of suffering) serious psychological harm from experiencing family violence directly or indirectly?
If there are allegations of family violence, child abuse or risk of family violence, the Court may make orders under sections 67ZBD and section 67ZBE of the Family Law Act to obtain particulars, documents or information from state and territory agencies. This could include particulars, documents and information pertaining to abuse, neglect or family violence, to which a subject child has been subjected or exposed as well as family violence to which a party has been exposed to or engaged in which may affect a child in the proceedings.
Under section 68B of the Family Law Act, the Court can make orders or grant injunctions as it considers appropriate for the welfare of the child.
More information is available in the instruction pages of the Notice of child abuse, family violence or risk.
Information Sharing
Under sections 67ZBD and 67ZBE of the Family Law Act, the Court can make an order requesting particulars, information and documents from State and Territory police and child protection agencies which relates to abuse, neglect, family violence or risk.
This information supports the Court in making informed decisions in parenting matters.
Upon receipt of the documents or information provided under a section 67ZBD or 67ZBE order, the presiding judicial officer will determine whether the information is to be released to parties and legal representatives, and the conditions of that release. The Court must admit into evidence any particulars, documents or information on which the Court intends to rely, except if it is only being relied on to assist in case management.
If an order has been made to an agency under section 67ZBE, a party must not request the issue of a subpoena to that agency without leave of the Court. For more information, see the Leave requirements for subpoenas in family law proceedings flowchart.
Co-location of State and Territory child protection and police officials
The Co-location Program commenced in 2020, with child protection and police officials now located across most Court registries. Co-located state and territory child protection and police officials perform a range of functions which enhance information sharing and collaboration between the federal family law and state and territory child protection and family violence systems.
The Co-location Program forms part of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems, which aims to promote the safety and wellbeing of adults and children affected by family violence and child abuse, and support informed and appropriate decision making in circumstances where there is, or may be, a risk of family violence or child abuse.
More information about the family law information sharing and the Co-location Program can be found on the Attorney-General's website.
Family violence and cross-examination of parties
Amendments made to the Family Law Act in 2019 provide protection to victims of family violence who are cross-examined as part of family law proceedings. Since 10 September 2019, personal cross-examination is banned in family law proceedings in certain circumstances where allegations of family violence have been raised.
Personal cross-examination is where a party asks questions of another party or witness directly, rather than having the questions asked by a lawyer.
Under the scheme, cross-examination is now conducted by legal representatives.
Unrepresented litigants will be unable to cross-examine the other party at an interlocutory or final hearing if there are allegations of family violence and:
- either party has been charged with, or convicted of, an offence involving violence or threat of violence to the other party
- a final family violence order applies to both parties
- an injunction has been made under the Family Law Act for the personal protection of one party against another, and/or
- the Court determines the prohibition should apply.
In matters involving family violence which do not fall into the above categories, the Court can provide alternative protections, such as cross-examination via video link.
Litigants prohibited from cross-examining another party can either engage a legal practitioner to act for them or apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) to obtain legal representation.
Unrepresented litigants who do not have legal representation either privately or through the Scheme will be unable to cross-examine the other party at the final hearing.
For more information, see the Family Violence information sheet.
Court-ordered protection in other cases
Where there are allegations of family violence, but section 102NA does not apply, meaning an automatic ban does not apply, or the Court does not apply its discretionary ban on the cross-examination of a party where there is allegations of family violence, the Court must ensure that during the cross-examination, there are appropriate protections to ensure the safety of the party who is the alleged victim of the family violence. For example, the Court may consider it appropriate to give a direction under subsection 102C(1) of the Family Law Act that the cross-examination be conducted by video link or audio link.
Related information
- Family violence section (Attorney-General's Department)
- Family violence law help website
- Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018
- Family violence information sheet
Lighthouse
The Courts are leading the way in assisting families that have experienced family violence or other safety concerns to navigate the family law system.
Lighthouse is an innovative approach taken by the Courts to screen for risk, with a primary focus on improving outcomes for families involved in family law proceedings. It improves the safety of litigants who may have experienced family violence and children who may have experienced associated risks such as child abuse.
For more information, see Lighthouse.
Family Dispute Resolution
People involved in disputes about the future arrangements for their children after relationship breakdown are required to make a genuine effort to resolve the matter by family dispute resolution.
Section 60I of the Family Law Act requires parties to make a genuine effort to resolve their dispute by attending mandatory family dispute resolution mediation prior to making an application for a parenting order, unless it is not safe to do so and an exemption is sought because of family violence or child abuse.
Section 60I(9) sets out circumstances when an applicant does not have to attend family dispute resolution services before applying to a court. The grounds are extensive and relate to:
- if family violence has been committed or there is a risk of family violence being committed by one of the parties to the proceedings, or
- there being abuse or a risk of child abuse if there was a delay in applying for an order.
If you are exempt from attending family dispute resolution mediation due to the above circumstances, you must still receive information regarding other services and options (including alternatives to court action) that are available.
The Court cannot hear an application unless the applicant has indicated in writing that they have received information from a family counsellor or family dispute resolution practitioner about the services and options available in circumstances of abuse or violence. This may not apply if the Court is satisfied that there are reasonable grounds to believe there would be a risk one of the parties to the proceeding may commit family violence or child abuse (Section 60J).
For more information about dispute resolution options, see Family Dispute Resolution and Compulsory pre-filing Family Dispute Resolution – court procedures and requirements or contact the Family Relationships Advice Line.
Other Court resources
Family violence plan
The Family Violence Plan represents a major commitment by the Court to the early identification and management of matters where violence, or the risk of violence, is alleged.
The overarching purpose of the plan is to protect the most vulnerable members of our community—children—and their families from the harm associated with experiencing or being exposed to family violence.
The plan contains actions for the administration of the courts, and for decision makers, legal practitioners, service providers and others involved in the family law system. It contains three areas of focus, each of which has a defined goal and identified actions, responsibilities and timelines. The Plan complements the Courts’ other plans that form part of the broad access and inclusion framework.
The plan was developed following extensive internal and external consultation.
Further information on the Australian Government’s broader commitment to taking action to prevent family violence can be found on the Attorney-General’s Department website.
Family Violence Best Practice Principles
The Family Violence Best Practice Principles contribute to furthering the Court’s commitment to protecting litigants and children from harm resulting from family violence and abuse.
The overarching principles are:
- Family violence is not acceptable.
- Safety is a right and a priority for all court users.
- Parenting matters involving family violence will be identified early and appropriately managed.
- All professionals working in or appearing before the Courts are expected to undertake ongoing training and professional development to ensure they have a sound and contemporary knowledge of family violence.
- Litigants must have access to specialist support services, and clear information to assist their full participation in all court processes.
- The Courts must have access to information relevant to safety and risks.
- All litigants have an equal right to access justice, and those experiencing family violence are not to be disadvantaged in the court system.
The Best Practice Principles apply in all cases involving family violence or child abuse (or the risk of either) in proceedings before courts exercising jurisdiction under the Family Law Act 1975, and provide useful background information for decision makers, legal practitioners and individuals involved in these cases.
While primarily focused on adjudication rather than administration, the principles have informed the administrative strategies of the Courts and underpin the Court’s Family Violence Plan.
