Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
If the court is to find that there has been a history of family violence, is it relevant to current parenting proceedings?
In Soulos & Sorbo  the Full Court explored how to treat historical family violence in current parenting proceedings.
The father appealed an order permitting the mother’s relocation order of the parties’ eight year old child from Australia to “Country N” in Europe where the mother was born and raised.
The father sought an order that the child live with him.
At first instance, the court found that the father had been violent towards the mother six times.
It was agreed that there had been no violence in the six years since separation.
The father appealed the Court’s finding that there was a risk of harm to the child in the father’s care.
The father argued that the Court did not properly consider the loss of the paternal relationship with the child.
The Full Court said:
It is worth repeating that whilst the father had been violent when the parties were living together, there had been no violent conduct in the six years since the parties had separated.
There was no suggestion that the father was violent in his new relationship and the evidence was to the contrary.
Whilst it was relevant to future interactions between them, it is too far a stretch to suggest that because of the earlier violence, there was an existing risk of harm to the child.
The Full Court went on to say that the issue of violence was given significant weight as it was one of the key considerations ultimately taken into account.
The initial judge found that there was a risk of harm to the child in the father’s care, however, in the circumstances, it was not unacceptable.
Nonetheless, the initial judge considered placed weight on this.
The trial judge then favored the orders sought by the mother.
The father submitted that this finding was not open on the evidence.
It is clear, nonetheless, that this issue carried some weight with the inital judge:
Her Honour weighed what she regarded as the advantages and disadvantages of the child relocating to Country N with the mother. Her Honour said that ‘[t]here is some risk that the child may be exposed to violence in the father’s care in the future and there is a need to protect the child from harm on this basis’ …
Neither the ICL nor the mother pointed to evidence that would support a finding that the child was at risk of harm from his father.
The appeal was allowed and the case remitted for re-hearing by another judge.
Determining the best interests of a child when there is family violence involved
The Court has two primary considerations when determining what is in the best interests of the child.
The first is the benefit to the child of having a meaningful relationship with both parents
The second is the need to protect the child from psychological or physical harm from preventing exposure or subjection to abuse, neglect or family violence
The Court places greater weight on the second consideration, being the necessity to protect the child from harm.
One of the considerations that the court will need to make is if there is a history of family violence and whether the threat of violence still exists.
This is potentially why the initial judge in this case put a larger weighting on protecting the child as opposed to promoting a meaningful relationship with both parents.
Parental Responsibility And Where A Child Will Live
Parental responsibility is the duty and authority a parent has concerning the care, welfare and development towards their child.
Both parents have a duty to continue caring for their child or children following separation.
In Australia, there is a presumption for equal shared parental responsibility when making any decisions concerning children.
Equal shared parental responsibility means that the parents both have the authority to make decisions regarding their child and that they must make these decisions together by consulting with each other and coming to an agreement.
For some of these decisions, reaching a consensus may not be too difficult. But for other major long-term issues, parents may have quite different opinions.
A court may give one parent sole parental responsibility.
A parent with sole parental responsibility does not need to consult with their former partner about major long-term issues and can make all decisions themselves.
Because there are so many kinds of major long-term issues, the court can order that one parent has sole parental responsibility in one area only.
For example, one parent may be given sole parental responsibility regarding where the child live. Therefore, they do not need to reach an agreement with the other parent when deciding on where the child will live, or what country they are to move to.