When it comes to the separation process, custody and parenting matters tend to be some of the most complicated.

It becomes even more challenging when there are allegations of family violence from one party against the other (or both).

There are, of course, some things that are clearly family violence and others that are clearly not. Sometimes, though, whether or not a particular behaviour or pattern of behaviours constituted something the Court should characterise as family violence is a bit more complicated.

We’ll look at one example in this article, but first…

Why Does it Matter Whether Something is Family Violence?

When deciding questions about parental responsibility, the Family Law Act requires the Court to assume that it is in the best interests of a child for their parents to have “equal shared parental responsibility”.

Important Note – “parental responsibility” refers to the typical powers, authorities and decision making abilities that parents have for their children.

The presumption of equal shared parental responsibility is the starting point for the court, but this presumption may not apply if one of the parents has engaged in “family violence”.

So, if there is evidence that your ex-partner has engaged in family violence you may be able to seek an order for sole parental responsibility, which means that you do not share the decision making powers relating to the children.  

What is Family Violence?

When it comes to Family Law matters (not criminal matters), family violence includes a potentially wide array of different behaviours.

The big picture definition is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful”.

The Act then provides a sequence of examples that “may” be family violence.

Importantly for the example we’re about to look at, a behaviour can constitute family violence in one context but not in another. So, for example, what in one relationship might be considered coercion or control might not be considered that in another relationship.

Each decision about family violence therefore turns heavily on its own facts and the particular nature of the case.

Our Case Study  - A Mother Withholds a Child from a Father

A mother sought sole parental responsibility for her son.

This was supported by the Independent Children’s Lawyer, who had been informed of the background.

The father sought equal shared parental responsibility.

During the trial, evidence was given that the father had previously smacked a daughter of a prior relationship, covered her mouth to prevent her screaming, and had an apprehended domestic violence order taken out against him. It was found the father had committed “family violence” in that respect.

It was also shown that between about 2016 and 2019, the father was permitted only limited interaction with his son, and then under the supervision of the mother. About 22 visits were documented in total across the ~3 year period.

As a result, the initial judge found that both the father AND the mother had engaged in family violence.

After weighing up the evidence, the judge ordered equal shared parental responsibility.

The mother appealed the decision.

Is it Family Violence?

The mother’s appeal covered several grounds, but only one is relevant for this article.

The mother argued that because of the finding she had engaged in family violence, the judge had gone on to wrongly order equal shared responsibility.

The Court that heard the appeal made some important findings about the nature of family violence and, in particular, the nature of “control” as it is used in matters like this.

First, the Court stated that behaviour needs to be viewed in its context across an entire relationship, in particular when the allegation is one of coercion and/or control. The history and nature of a relationship and the cultural context in which it exists can inform whether a behaviour was coercion or control.

Second, the Court made it clear that for Australian family law matters, the question is whether or not the behaviour was “coercive” or “controlling”. The concept we have heard a lot about recently of “coercive control” is not appropriate when addressing the question of family violence. Here, the contention was that the mother’s behaviour was controlling – not coercive.

Third, the Court was slightly critical that the original judge had made a finding of family violence but had not engaged on a detailed analysis of the evidence.

Finally, the Court set out the many reasons why withholding access to a child might not be family violence and might, in fact, be considered appropriate and normal parenting – the obvious example being if the mother was rightly concerned about the potential for violence against the child.

So, in this case with available evidence and reasoning, the Court found the earlier judge had made a mistake in deciding the mother had engaged in family violence by withholding access to the child from the father.

Importantly though, the Court did not make a positive finding that the mother did NOT engage in family violence – only that the original judge was wrong to have decided she had on the available facts. This might sound like the same thing, but there is a subtle difference.

But Did it Change the Outcome?

Here, however, while the Court decided that the original judge made a mistake, ultimately the mother’s appeal was still refused.

At the end of the day, the Court was not persuaded the decision on family violence against the mother impacted the outcome of the original hearing.

So is Withholding Access to a Child a Kind of Family Violence?

The Court made it clear that in some cases withholding access to a child from another parent could potentially constitute an act of family violence.

However, to make such a finding there would need to be a full and thorough examination of the context of the relationship and the nature of the withholding that was taking place.

Allegations of family violence are a serious and contentious part of many family Court matters. If you are making, or receiving, such allegations, then we highly recommend you get legal advice from family lawyers as soon as possible.

Note – you can read the decision, Carter & Wilson [2023] FedCFamC1A 9, we have summarised in this article in full here