Family Law Act Family Violence Amendments – Does withholding a child constitute family violence?
Posted: 6th September 2012
Posted in: News
Posted by: Dean Evans, Partner
Recent amendments to the Family Law Act have introduced a definition for “family violence”.
A matter was recently heard in the Federal Magistrates Court at Melbourne in respect of an Application filed by a Father alleging family violence by the Mother as she had refused to allow the Father to spend time with or communicate with the parties’ child. There was no history of any other violence alleged by the Father. As required by the Family Court, the Father had filed a Notice of Child Abuse, Family Violence or Risk of Family Violence (“the Notice”).
The relevant section of the Family Law Act that the Father relied on was:
- For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
- Examples of behaviour that may constitute family violence include preventing the family member from making or keeping connections with his or her family, friends or culture.
The Federal Magistrate found that this definition refers to a situation where a party “coerces or controls another by keeping them in a state of social and / or emotional isolation by cutting them off from family and friends – the withholding of time or communication with a child, without more, does not constitute family violence”.
The behaviour must be such as to “coerce or control” or makes the family member “feel fearful”. There was no evidence found of such behaviour towards the father by the mother. On examination of the Father’s own material the Federal Magistrate commented that there may be good reason for the Mother preventing the child from spending time or communicating with the Father.
An order was made by the Federal Magistrates that the Notice be withdrawn and the Registrar of the Court advise the Department of Human Services that the view of the Court was that the Notice should not be acted on.