Domestic Violence and Family Law in Queensland — How Criminal Charges Affect Custody
Domestic Violence — 2026-06-20 — by Sacha Sarah Smith, Civic Law
If you are facing domestic violence charges and have children, the criminal case and the family law case are connected. Here is how.
You have been charged with a <a href="/domestic-violence-lawyer-cairns">domestic violence</a> offence and you have children with the other party. Now you are dealing with two legal systems at the same time — the criminal charge in the Magistrates Court, and the question of what happens with the children in the Federal Circuit and Family Court. What happens in one directly affects the other.
How DV Charges Affect Your Time With Your Children
The Family Law Act requires the court to treat the child's best interests as the paramount consideration when making parenting orders. Under section 60CC(2A), the court must give <strong>greater weight to protecting the child from harm</strong> than to any benefit of the child having a meaningful relationship with both parents.
In plain terms: safety comes first. If you have been charged with domestic violence against the other parent, the Family Court will consider that when deciding what arrangements are in the child's best interests. A DVO condition that restricts your contact with the other parent may also restrict your practical ability to spend time with your children — particularly if the children live with the aggrieved person.
When the DVO and a Parenting Order Conflict
This happens regularly. A parenting order says the child spends time with both parents. A DVO says you cannot approach the other parent's home — which is where changeover happens.
Under section 78 of the <em>Domestic and Family Violence Protection Act 2012</em> (Qld), where a DVO and a Family Court order conflict, the DVO prevails — but only if the DVO was made after the parenting order and the court making the DVO was aware of the parenting order.
In practice, this means a new DVO can effectively override your parenting order in the short term. You may find that you cannot exercise your court-ordered time with the children because the DVO conditions physically prevent it.
The response is not to breach the DVO and rely on the parenting order as justification. That will result in a criminal charge. The proper course is to apply to vary the DVO or the parenting order — or both.
What Happens to Custody During Criminal Proceedings
A criminal charge does not automatically change your custody arrangements. A charge is an allegation — not a finding. But the existence of a DVO, and the <a href="/bail-applications-lawyer-cairns">bail</a> conditions that typically accompany a DV charge, can reshape the day-to-day arrangements in ways that feel permanent.
Common bail and DVO conditions in DV matters include:
No contact with the aggrieved person except through a lawyer or for the purpose of exercising existing parenting orders
Not to approach within a specified distance of the aggrieved's residence
Not to attend the children's school or childcare