When family violence enters the picture, decisions about children are no longer just about parenting arrangements. They become about safety, stability, and protection. The primary concern in these matters is shielding children from harm while ensuring they can grow in a secure environment free from fear, control, or intimidation.
In this article, Accredited Family Law Specialist Reece Ramsden and Law Clerk Bryanna Destro break down what abuse is, the ways in which custody can be granted, and how to seek help.
What Counts as Family Violence?
For the purposes of the Family Law Act (‘FLA’), family violence is defined broadly under section 4AB. It includes any violent, threatening, or other behaviour by a person that coerces or controls a family member or causes that family member to feel fearful.
Family violence is not confined to physical harm. The definition extends to a broad spectrum of behaviours that are coercive, controlling, or designed to instil fear.
These behaviours may include:
- Physical assault
- Sexual assault or other sexually abusive conduct
- Stalking
- Threatening or intimidating behaviour
- Repeated derogatory taunts or verbal abuse
- Deliberate damage to property
- Intentionally harming or killing a pet
- Economic or financial abuse
- Unlawfully depriving a person of their liberty
- Preventing a family member from maintaining relationships with their family, friends, or cultural community
Family violence can also present in more subtle but equally damaging ways, such as:
- Withholding children or attempting to turn children against the other parent to undermine or destroy that relationship
- Gaslighting – engaging in psychological manipulation to cause doubt, minimise events, or deny conduct that occurred
- Identity theft, doxing (publishing private personal information online), location tracking, abusive electronic messaging, or distributing images without consent
- Exerting financial control by withholding, delaying, or inconsistently paying child support or spousal maintenance, or concealing income
- Technology-facilitated abuse is used to monitor, intimidate, or isolate the other person
The modern understanding of family violence recognises that control and coercion can be exercised through psychological, financial, and technological means.
Parental Responsibility in the Context of Family Violence
In circumstances where one parent has engaged in family violence conduct, the Court may consider that granting sole parental responsibility and decision making to the non-violent parent is necessary to protect the child from ongoing conflict, intimidation, or decision-making pressure. This is particularly so where communication between the parties is unsafe, highly conflictual, or characterised by control.
Ultimately, the Court’s approach is protective rather than punitive. Orders concerning parental responsibility and decision making are made not to reward one parent or punish the other, but to ensure that children are shielded from harm and placed in a stable and secure environment that promotes their best interests.
Example of decisions that may need to be made independently:
- Enrolling a child in counselling when the other parent is attempting to control the victim parent and child from accessing support.
- Changing a child’s school where the violent parent continues to intimidate staff and interfere with the child’s education.
- Authorising urgent medical treatment without needing to consult a parent who uses decision-making as a means of control and limits the child from accessing medical care when needed.
Coercive Control and Sole Parental Responsibility
Coercive control often presents as a pattern of behaviour rather than isolated incidents. It may involve monitoring movements, restricting finances, gaslighting, repeated threats, manipulation through the children, or undermining the other parent’s confidence and autonomy. While each act may appear minor when viewed in isolation, the cumulative effect can create a climate of fear and domination.
Historically, non-physical forms of abuse were sometimes given less weight than overt physical violence. However, contemporary judicial understanding recognises that sustained coercive control can have profound impacts on both the victim parent and the children exposed to it. Exposure to such conduct may affect a child’s emotional security, sense of safety, and long-term psychological development.
Where evidence establishes a pattern of coercive or controlling behaviour, the Court must assess whether shared parental responsibility and decision making would expose the child (or the other parent) to ongoing harm, pressure, or intimidation. In such circumstances, the Court may determine that sole parental responsibility is necessary to safeguard decision-making from conflict, manipulation, or continued control.
Example of decisions that may need to be made independently:
- Determining religious or cultural participation where the other parent uses those decisions to assert dominance or create conflict.
- Approving a passport application or travel arrangements where the other parent has previously made threats frustrate consent on certain forms as a form of control.
- Determining whether a child’s surname should be changed (or reverted) where the other parent uses refusal of consent as a means of maintaining control or forcing continued association. In such circumstances, requiring joint agreement may expose the child and the protective parent to further pressure, rather than serving the child’s best interests.
Physical Custody (Living Arrangements) in Situations of Family Violence
In cases involving allegations of family violence, the Court must determine not only who should hold parental responsibility and decision making, but also where the child should live and how much time, if any, the child should spend with the other parent.
Under section 60CC of the Family Law Act 1975 (Cth), the Court must also consider what arrangements would promote the safety of:
- the child; and
- each person who has care of the child, including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm
Importantly, when assessing safety and what time arrangements are appropriate, the Court is required to take into account:
- any history of family violence, abuse or neglect involving the child or a person caring for the child; and
- any family violence order that applies, or has previously applied, to the child or a member of the child’s family.
If a parent has engaged in physical violence, particularly violence in the presence of the child, or violence directed at the other parent. The Court will closely examine whether time with that parent poses an unacceptable risk. The Court may consider:
- The nature, seriousness, and frequency of the violence;
- Whether the child was exposed to the violence;
- Whether the offending parent has acknowledged the behaviour;
- Any steps taken toward rehabilitation (such as behaviour change programs or counselling);
- The likelihood of future harm.
Where risk is established, the Court may order that the child live primarily with the non-violent parent. Time with the other parent may be limited, supervised, structured, or in serious cases, suspended altogether. Supervised time may occur through a contact centre or an agreed third party, particularly where concerns exist about safety or emotional harm.
The Court also recognises that exposure to ongoing conflict, intimidation or coercive control can itself be harmful. Even in the absence of recent physical assaults, a pattern of violent or threatening conduct may justify restrictive time arrangements if it undermines the child’s emotional security.
Importantly, the Court does not automatically sever a parent-child relationship because violence has occurred. The question is whether risk can be managed in a way that preserves the child’s safety while maintaining appropriate contact. However, where risk cannot be adequately mitigated, protection of the child will prevail.
How Ramsden Family Law Can Help You
If you are considering reaching out for support or advice on your parental rights or domestic violence situations, please consult our experienced family law specialists at Ramsden Family Law. We are available to provide you with the necessary legal support and guidance to protect your best interests during this time. Contact us today for a confidential discussion.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your specific circumstances.
