From Our Desk

Should children be informed of the application? Who is protecting their interests and where is their voice? This article explores the rights of children to be heard in DV applications and the legal test for the naming of children in domestic violence orders.

Section 146(1) of the Domestic and Family Violence Protection Act 2014 (the Act) provides a party to a proceeding has the right of appearance, themselves or by a lawyer (or in the case of a child, sometimes by a litigation guardian).  The term “party to a proceeding” would include children that may be named in the order. So children named in the application have a right to appear and have their views considered.

In fact, Rule 18(2) of the DFVP Rules provides if Court considers that it is necessary and appropriate, the Court may order that a copy of the application for the protection order be served on the named person. If the named person is a child, the Court must consider the following matters before making an order under subrule (2)— 

1. the age of the child;
2. the ability of the child to understand the DFVP application;
3. whether the Court has dispensed with the requirement to give a copy of the DFVP application to a parent of the child under the DFVP Act, section 188(3);
4. whether service of the copy of the DFVP application is in the best interests of the child; and
5. whether the child is already aware of the proceeding or the circumstances giving rise to the proceeding.

In practice, it is often assumed that the named child is either:

1. aware of the application and supports it, or
2. unaware of the application and it is assumed they have no interest in it.

Yet a protection order is an order of the Court, and it can affect the child’s interests. A domestic violence order can have ramifications in family law proceedings about parenting arrangements and access of the child to both parents. Far too often there is no evidence presented before the Court of the child’s wishes.

Section 53 of the Act provides the Court may name a child in the order, if the Court is satisfied that naming the child is necessary or desirable to protect the child from domestic violence, or to protect the child from being exposed to domestic violence. 

In short, the Court has to find that naming the child in the order is necessary or desirable – It’s not just a ‘tick and flick’ situation.

In BM v CM & Anor [2020] QDC 30 [16], Judge Rachemann in overturning a Magistrates decision to name a child in an order, held that the task for a Magistrate:

…would necessarily involve an assessment of the risk of those matters in the absence of any order. The magnitude of the risk which would be sufficient to justify a conclusion that it is necessary or desirable to protect the child by naming the child in the order will depend on the circumstances, but the risk would need to be more than a bare possibility or a matter of mere speculation. The applicant’s fear of such a risk would not be sufficient. There would need to be a proper evidentiary basis for concluding that there was such a risk.

His Honour continued [31] and relevantly held that:

…a findings in relation to past conduct will be relevant to assessing future risk in order to conclude whether naming the child is necessary or desirable for the purpose stated in the section, however, section 53 requires more than just a finding that there are allegations or even proven incidents of past conduct of the kind described in section 53(a) or (b).

So in essence, to name a child on a protection order there must be a clear necessity to protect them from future domestic violence. Importantly, that finding of the court must be based on evidence and not mere speculation or the subjective fear of the aggrieved.

We may find in coming years that children are given more of a voice in domestic violence applications, due to the significant impact these applications have on family law proceedings.