Family Violence and Parenting Orders
Family Violence and Parenting Orders: How the Courts Protect Children
If you’re facing separation and there’s family violence involved, you know how high the stakes are—especially when children are in the mix. It’s natural to feel overwhelmed, anxious, or unsure how to protect your child while navigating parenting orders. In Australia, the Family Law Act 1975 prompts courts to treat both parenting arrangements and family violence matters with utmost seriousness.
This guide explains how family violence intersects with parenting orders, how the court prioritises safety, what legal tools you can use, and how precedent and case law inform decisions. It’s written for you—to help you feel informed, empowered, and ready to take steps that keep your child safe.
Understanding Family Violence in Family Law
Under family law, “family violence” includes not only physical or sexual abuse, but also threats, stalking, emotional or psychological control, and any behaviour that instils fear or domination. This expanded definition reflects a trauma-informed understanding of how violence affects families.
Importantly, family law recognises that exposure to violence—such as a child witnessing verbal abuse or property damage—is itself abusive and harmful, even if the violence is not directed at them. That understanding shapes how courts gauge parenting arrangements—safety is foundational, not optional.
How Parenting Orders Work When Family Violence Is Involved
Mandatory Reporting with the Notice of Risk
If you're applying for parenting orders—or responding to one—and there’s family violence or risk, you must submit a Notice of Child Abuse, Family Violence, or Risk. It’s a legal requirement that ensures the court acts with full awareness of any danger and triggers potential involvement from child protection agencies.
Evaluating History and Orders
Courts weigh:
Any family violence order currently in place (like a DVO or intervention order).
History of abuse, neglect, or exposure to violence suffered by the child or caregivers
In areas of inconsistency between federal parenting orders and state-based protection orders, federal orders usually take precedence—but courts must ensure children’s safety isn’t compromised by that priority.
Safety First: Family Violence Overrides Shared Parenting Presumptions
- Before 2024, the law often assumed that equal shared parental responsibility was the starting point—but that presumption is now gone, particularly in cases involving family violence or abuse. Now, courts focus on:
- The child’s safety and emotional well-being
- Their developmental and psychological needs
- Each parent's capacity to meet those needs responsibly and safely
- In essence, the court’s priority is the child’s welfare—not preserving equal involvement if it puts anyone at risk.
Reviews
Case Law Matters: How Courts Have Responded to Family Violence
Martin v Martin
A court found a father’s obsessive, stalking behaviour—including late-night calls and uninvited visits at school—met the definition of family violence and justified sole parental responsibility being granted to the mother.
Oakes v Oakes
A father who repeatedly threatened to kill the mother and had a documented history of violence was found to be a serious risk. The court emphasised the need to protect the child from harm, ruling against shared responsibility or contact.
These cases show that courts now act on patterns of coercion and control—and not only on visible violence.
Why Courts Prioritise Safety Over Equal Access
A reformed family law system recognises that coercive control, not just physical abuse, deeply destroys trust and undermines children’s well-being. Studies show that shared parental responsibility frameworks can be manipulated by abusers, making courts more cautious.
Early intervention is key: enforcement of protection orders, coordinated court mechanisms, and child-focused dispute resolution tools help avoid repeat cycles of harm.
Real-World Risks: When Safety Systems Break Down
Tragically, cases like the Clarke family murders expose gaps in systemic responses. Despite existing DVOs and court involvement, Hannah Clarke and her children were killed by a perpetrator known to authorities.
National reviews have revealed that 40% of high-risk offenders are already known to services, while others use coercion without visible assaults and escape detection altogether.
These sobering facts underline why courts—and you—must remain vigilant, particularly where legal orders may give the illusion of safety.
Practical Steps: What You Can Do to Protect Your Child
Be Clear and Thorough in Your Application
Filing for parenting orders? Stay transparent. Declare any history of abuse and submit the Notice of Risk and supporting evidence—such as DVOs, police reports, or medical records. Include detailed timelines of incidents and clearly explain how each event has impacted your child’s safety or well-being.
The more precise your application, the easier it is for the court to see the urgency and necessity of protective measures. A well-prepared application also signals to the judge that you are organised, credible, and child-focused.
Seek Protection When Needed
If immediate danger exists—even if parenting orders are in place—you may need to apply for a temporary protection order, and/or apply to vary the parenting orders to ensure your child’s safety. Don’t wait until an incident escalates — early action can prevent further harm.
Protection orders can include conditions that control the other parent’s access, dictate safe communication methods, or prohibit contact entirely. You should also consider informing your child’s school or daycare so they are aware of any court-ordered restrictions.
Define Safe Arrangements
If parenting time is ordered, negotiate safe circumstances—supervised visits, neutral exchange points, or video contact as an interim step. Be prepared to suggest practical venues and providers for supervised visits, and outline how these will protect your child while still allowing contact if safe.
You can also ask the court to include detailed handover instructions to minimise conflict. Structuring arrangements this way shows the court you’re willing to facilitate contact while prioritising safety.
Work with Independent Children’s Lawyers (ICLs) and Experts
Courts may appoint an ICL when safety is in question. Expert family consultants or psychologists can help you present how to protect the child while considering meaningful contact, if appropriate.
Be open and cooperative with these professionals, as their reports carry significant weight in court. Make sure you share all relevant documents, including any history of violence, so they have a complete picture. Their recommendations often shape the final parenting orders.
Document Everything
Record all incidents, communications, and breaches of orders. Keep evidence like messages, photos, police logs, or witness statements to support your case. Organise your records by date and type of incident so they are easy to reference in court.
Consistent documentation shows patterns of behaviour, which can be far more persuasive than isolated incidents. The court will often give greater weight to well-supported claims backed by objective records.
What the Court Considers: Key Best-Interest and Safety Factors
- When family violence is in play, the court must assess under section 60CC of the Family Law Act:
- Arrangements that promote safety for the child and caregivers
- Any history of violence or abuse, and whether family violence orders exist
- The child’s psychological, developmental, emotional, and cultural needs
- Each parent’s ability to meet those needs without risk
- Safety is no longer one factor among many—it’s the primary consideration, especially when evidence shows risk.
Your Rights—and What You Can Expect
- You can apply for parenting orders even if family violence orders exist—but you must report them.
- You can request that contact be adjusted or supervised, depending on risk.
- You can ask for protection in court hearings, including separate waiting areas or video attendance.
- The court’s goal is clear: protect the child first, then assess whether safe and meaningful contact with both parents can follow.
Case Studies
Case Study 1 — Abuser’s Access Limited Post-DVO
A mother sought renewable protection after repeated harassment from the father. The court granted her sole parental responsibility, limiting the father’s access to supervised visits only. The decision stemmed from patterns of stalking and fear-inducing tactics.
Case Study 2 — Court Overrides Intervention Order but Balances Safety
A father was initially barred by a state intervention order, but a parenting order required him to pick up the child. The court allowed his attendance strictly for handover—nothing more—and required clear documentation and oversight to avoid breach.
Learn what steps you can take next.
How a Family Lawyer Can Support You
A family lawyer experienced in violence-related parenting cases will:
- Help you prepare a risk-informed application, ensuring the Notice of Risk is correctly submitted.
- Advise whether temporary relief, supervised contact, or sole responsibility might be warranted.
- Gather evidence: police records, medical or counselling reports, expert assessments.
- Represent you in mediation or court, ensuring your safety measures are clearly presented and respected.
When family violence is part of the picture, parenting orders must do more than just arrange living routines—they must protect children from harm. Modern family law in Australia reflects this, stripping away outdated presumptions and putting child safety at the forefront.
If your child’s safety is at stake—or you are unwittingly exposing them to risk—don’t wait. Document the violence, submit the Notice of Risk, and seek legal help that puts your child’s well-being first. Courts are now more equipped than ever to respond—but you must act.