How the Court considers safety and risk

If you are in immediate danger call 000

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.

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 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 to obtain documents or information from state and territory agencies in relation to the allegations (69ZW). This could include documents pertaining to notifications made to child protection/state or territory agencies regarding suspected child abuse or family violence affecting the child, or other investigations made by an agency following the notification.

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.

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:

  1. either party has been charged with, or convicted of, an offence involving violence or threat of violence to the other party
  2. a final family violence order applies to both parties
  3. an injunction has been made under the Family Law Act for the personal protection of one party against another, and/or
  4. 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, read the Court’s fact 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

The Lighthouse Project

The Court is leading the way in assisting families that have experienced family violence or other safety concerns to navigate the family law system.

The Lighthouse Project is an innovative approach taken by the Court 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 about The Lighthouse Project risk screening pilot in Adelaide, Brisbane and Parramatta see the Court Innovations area.

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 the fact sheets Dispute Resolution in Family Law Proceedings and Compulsory 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 Courts 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 six priority areas, 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 Best Practice Principles recognise:

  • the harmful effects of family violence and abuse on victims
  • the prominence given to the issue of family violence in the Family Law Act, and
  • the principles guiding the case management system for the disposition of cases involving allegations of abuse of children.

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.