Children can add another layer to considerations about whether to stay in an abusive relationship. If a person you support is experiencing family violence and they have children with their partner or from a previous relationship, they need to seek legal advice.
Children’s experience of family violence
It is important to note the Family Violence Protection Act 2008 states any behaviour which causes a child to hear, witness or otherwise be exposed to violence between adults itself constitutes family violence, this includes seeing signs or effects of the family violence on the abused person or people.
Some of the others ways children can experience family violence are:
- Being used to inflict abuse. An abusive partner can use child access as a form of abuse and control against a person. They may try to turn children against the other parent or undermine the other person or people parenting (like a co-parent), grandparenting or other guardian-type role, or encourage resentment towards a person because they are lesbian, gay, bisexual, trans or gender diverse or have an intersex variation;
- Being victims of abuse. Children may be physically or emotionally abused directly by an abusive person and in some cases by one or more of their parents, carers, or family members (such as siblings). Violence may be experienced in the context of abuse among other or multiple family members. For sex and gender diverse children or LGBTIQ young people abuse may also be homo/bi/intersex/transphobically motivated.
Children may have parents or other family members from LGBTIQ communities or cisgender heterosexual parents, or the children experiencing abuse may be from LGBTIQ communities themselves. Children who experience family violence can suffer many negative effects ranging from short-term physical injuries to long-term emotional or psychological trauma no matter what the diversity of their families. All children who experience family violence are affected by it in some way.
Mandatory reporting of child abuse
In Victoria, all adults have an obligation to report suspected sexual abuse of a child.
If they believe the child has suffered, or is likely to suffer, significant harm as a result of physical injury or sexual abuse, and the child’s parents have not protected, or are unlikely to protect, the child from harm, the following professionals are required to report to Child Protection:
- registered medical practitioner;
- teachers and school principals;
- members of the police force.
Anyone else who has concerns about the welfare of a child can make a report to Child Protection.
Who is a parent?
While all parents will have difficult choices to weigh up, uncertainty about a person’s status as a parent can be a tool of power or control — for example where it is suggested or perceived that the other parent will not be recognised by the law as a parent if they were to leave the relationship.
If someone is a parent by law, their sexuality, gender identity or intersex status does not affect whether their child has a right to a relationship with them.
Victorian legislation provides some clarity on who is a parent and Victorian birth certificates now recognise non-biological parents. This is a complicated area of the law, but in summary:
- At first instance, the best way to determine who is a parent is by looking at the child’s birth certificate;
- If a child is born of a woman as a result of an artificial contraception procedure (this includes home insemination or IVF) whilst that woman was in a de facto relationship, and the partner consents to the procedure regardless of who provided the genetic material, the woman and her partner (regardless of gender) by law are the intended parents;
- If a gay male couple conceives a child with a woman via artificial insemination they are not legally deemed to be the parents of that child, even though the partner who donated the sperm is the child’s biological father;
- If someone enters into an altruistic surrogacy arrangement, whereby an unpaid volunteer surrogate carries a child for the intending parent/s, the intending parents must apply for a substitute parentage order from the County Court to be named as the legal parents on the child’s birth certificate;
- If a person entered into an overseas commercial surrogacy arrangement, the laws of the relevant State will apply as International commercial surrogacy is not legal in every state. In Victoria overseas commercial surrogacy arrangements are legal and parents can apply to the court for parental responsibility.
The above information is only meant as a guide and legal advice should be sought if there is any uncertainty about a person’s status as a parent.
Parenting orders post-separation
There is a general presumption that it is in the best interests of a child that parents have equal shared parental responsibility for them. The exception is where a parent has engaged in abuse of the child or family violence. When determining a child’s best interests and determining parenting orders or responsibility, the Court’s primary considerations are:
- The benefit to children of a meaningful relationship with both parents; and
- The need to protect children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence — greater weight will be given to this consideration.
Any history of family violence should be reported to the Court so that it can take this into account.