Best Practice Principles for Use in Parenting Disputes when Family Violence or Abuse is alleged
Introduction
These Best Practice Principles are designed to provide practical guidance to courts, legal practitioners, service providers, litigants and other interested persons in cases where issues of family violence or child abuse arise.
After significant changes were made to the Family Law Act 1975 (Cth)1 in 2006, the Family Court introduced a suite of Best Practice Principles2 to assist decision makers. It was later recognised that the Best Practice Principles could be a valuable tool for all individuals and agencies involved in these cases. The notion that the Best Practice Principles could assist a wider audience was informed by a series of reports3 in which recommendations were made about how courts exercising jurisdiction under the FLA and others should address issues of family violence and abuse.
Statement of principle
These Best Practice Principles have been developed by the Family Court of Australia and the Federal Circuit Court of Australia. They contribute to furthering the courts’ commitment to protecting children and any person who has a parenting order from harm resulting from family violence and abuse.
The Best Practice Principles recognise:
- the harmful effects of family violence and abuse on victims
- the place accorded to the issue of family violence in the FLA and
- the principles guiding the Magellan case management system for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children.
The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA.4 They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.
The Best Practice Principles are a voluntary source of assistance to judicial officers and legal practitioners and are not a fetter to a court’s discretion (Cameron & Walker (2010) FLC 93-445). These Best Practice Principles are not a substitute for evidence in individual cases.
Ensuring the safety of a child is central to all determinations of what is in a child’s best interests.
The courts aim to protect children and family members from all forms of harm resulting from family violence and abuse.
All persons attending courts exercising family law jurisdiction are entitled to be safe and the courts will take all appropriate steps to ensure the safety of their users. This includes the creation of an individually tailored safety plan where appropriate.
A safety plan is a document that can be varied at any time and which includes a variety of options available to a person to ensure their safety at court. These include attendance by electronic medium, attendance with support persons, staggered attendances, use of security entrances and, where necessary, security personnel. All court staff are able to prepare a safety plan. Safety planning is one of the strategies that may be implemented to ensure that a person who fears for their safety remains protected from harm. A safety plan for attendances at court events is but one component of safety planning that needs to be incorporated into the individual’s overall plan for their safety.
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