Can withholding children be family violence?

December 20, 2022

The burning question is whether or not withholding children is, or can be, a form of family violence.

The answer? It depends.

What is the definition of ‘Family Violence’

Family Violence is defined in the Family Law Act 1975 as:

“Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”

Examples of behaviour that may constitute family violence include, but are not limited to:

• Assault
• Sexually abusive behaviour
• Stalking
• Derogatory taunts
• Intentionally damaging property
• Preventing the family member from making or keeping connections with their family

What does the case law say?

In the case of Carter & Wilson [2023], a mother withheld the child from their father for almost three years from the child’s birth. During initial proceedings in the Court, the trial judge found that the mother had committed family violence by doing so, as it was a form of exceeding her parental control.

On appeal, the Court found that the trial judge made an error in deeming the mother’s behaviour as family violence, although conceded that in certain circumstances, withholding a child could meet the definition of family violence.

It was concluded that the trial judge did not analyse the context and evidence surrounding the withholding of the child.

While in this specific case the mother’s actions were not considered family violence, there may be circumstances where withholding the child may be classified as family violence.