Domestic violence can occur in a number of different ways. While it can be to physical or sexual abuse, it can also be emotional, psychological or economic abuse and some people have been exposed to it for so long that they do not even recognise it as abuse. Domestic violence can be perpetrated by both men and women.
A domestic violence situation may lead to one or both parties seeking an Intervention Order. Intervention Orders are dealt with by police and criminal lawyers in the Magistrates’ Courts. These orders can become very important in family law matters including parenting and property proceedings. In some cases, where there have been findings made by a Magistrate in a contested Intervention Order proceeding, one or both parties may be prevented from re-agitating those issues in the Family Law Courts unless there is different or new evidence which might affect the initial findings.
If you are experiencing domestic violence in your relationship, there any many community organisations that you can reach out to for help. Armstrong Legal provides a no-obligation initial appointment that is confidential. Our lawyers are sensitive to the issues surrounding domestic violence and assist victims of domestic violence, both male and female, on a regular basis. We also have a team of criminal lawyers that can assist if required in respect of any Intervention Order proceedings.
What is family violence?
In recent times the relationship between Family Law and Family Violence has become a topic of considerable discussion and concern to the community. In 2011, the definition of Family Violence set out in the Family Law Act 1975 (Cth) was amended to include coercion and control and the definition of abuse amended to include the wording “serious psychological harm”.
Today the definition of Family Violence in Section 4AB (1) of the Family Law Act 1975 (Cth) is as follows:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB (a) also provides a number of examples of behaviours which the Family Law Act considers family violence. These are:
- Assault; or
- Sexual assault or sexually abusive behaviour;
- Repeated derogatory taunts;
- Intentionally damaging or destroying property;
- Intentionally causing death or injury to an animal;
- Unreasonably denying a family member the financial autonomy that he or she would otherwise have had; or
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- Preventing the family member from making or keeping connections with his or her family, friends or culture; or
- Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Family violence can also consist of exposing a child to any of the above behaviours.
Family violence in parenting matters
In a parenting matter, a party may be found to have exposed the children to family violence if there is evidence that the children have:
- Overheard threats by a member of the child’s family towards another member of the child’s family;
- Seen or heard an assault of a member of the child’s family by another member of the child’s family;
- Comforted or provided assistance to a member of the child’s family who has been assaulted by another member of the child’s family;
- Cleaned up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family;
- Been present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
When a person applies for parenting orders or responds to an application for parenting orders, the party must file a Notice of Risk Form. The Notice of Risk requires parties to set out any allegations of child abuse, family violence or other risks that they are aware of in relation to the child or children who are the subject of the application.
Relevance of Criminal Proceedings
Domestic Violence is unfortunately common in relationships and therefore family law matters, particularly in parenting matters.
The presence of domestic violence committed by a parent rebuts the presumption of equal-shared parental responsibility and might result in an Order for sole parental responsibility. A finding of domestic violence could also affect the time the children spend with the offending parent and whether such time should be supervised.
Domestic Violence can also be relevant where there are proceedings before the Court in relation to dividing property. A party who has suffered domestic violence during the relationship can argue that the contributions they made to the relationship should be considered more onerous given the violence they have been exposed to – the effect of that being that the Court should exercise their discretion to increase the percentage of property they receive upon division.
The outcome of criminal law proceedings, particularly in relation to domestic violence provides strong evidence as to whether domestic violence occurred during a relationship. In criminal law proceedings, the Magistrate must be satisfied beyond a reasonable doubt to find the accused guilty of an alleged assault. Where that finding is made, it is difficult for a Judge of a Family Law Court to ignore a conviction.
In light of the above, it is evident that the outcome of criminal proceedings can have a dramatic effect on the outcome of family law proceedings, particularly in parenting cases. At Armstrong Legal our criminal law team and family law team work together to ensure that you receive advice that is tailored to ensure your criminal law proceedings and family law matters are dealt with in a timely and cost-effective manner.
Family Violence and Property Settlements
Domestic violence is not typically a relevant matter in respect to property settlement proceedings. However, in some cases, it may be appropriate and indeed necessary for the Court to take this matter into account in determining the assessment of contributions of each party.
The leading case authority in respect to the relevance of domestic violence in property settlement matters is the Full Court case of Kennon and Kennon  FamCA 27.
In this case, the Wife raised the argument that the assault and battery she suffered from the Husband’s conduct needs to be taken into account in respect to her contributions to the relationship.
The Court found that domestic violence may be relevant if there was a “violent course of conduct” by one party during the marriage on the other party, resulting in a “significant adverse impact” upon that party’s contributions. Alternatively, the violent course of conduct would also be relevant if it made the other party’s contributions “significantly more arduous than they ought to have been”.
An example of how this may apply is where one party has assaulted the other party regularly during the relationship, resulting in that party suffering a physical defect, making it difficult for them to conduct homemaker duties such as expending labour to clean the property. Another example is if such conduct resulted in the affected party taking significantly longer time to carry out certain homemaker duties that they previously could have completed in a short amount of time. The assessment of the contributions and the relevance of the conduct would be highly dependent on the evidence presented by each of the parties to the Court.
It is important to note however that the Court in Kennon have made it clear that this principle would only apply to “exceptional cases” and accordingly it is apparent that there is a high threshold to meet.
Domestic violence is also relevant in cases where the violent conduct of one party “has produced consequences which have diminished or destroyed the property of the parties”. It is also relevant in cases where the conduct has resulted in the diminution of the value of the property. This was discussed in the Kennon case, but was established previously in the case of Ferguson (1978) FLC 90-500 and is discussed further in a later case of Kowaliw (1981) FLC 91-092. This is a more distinct position in respect to why domestic violence should be relevant, as it results in a direct financial consequence as a result of the violent conduct of a party. An example of this is where in the midst of an argument with their former spouse, one party uses a hammer to destroy a wall at the parties’ matrimonial home, thus resulting in destruction of property and arguably diminution of the value of the property.
Intervention Orders and Parenting Proceedings
The Family Law Act provides that the Court must be informed of any family violence Order that has been made in relation to a party in the proceedings or a child of the proceedings, although failure to inform the Court does not affect the validity of any Order made by the Court. In addition, the Court must ensure any Order it makes is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence. It is important to remember, however, that the best interests of the child remain the paramount consideration for the Court, therefore if the Court, upon following the legislative pathway, considers the best interests of the child requires a parenting Order that the child spends time with a parent, such Order is enforceable despite the existence of a family violence order naming the child.
However, where a Family Law Court has made a parenting Order, it is possible to apply to the Magistrates Court pursuant to s 68R of the Family Law Act 1975 (Cth) to vary, discharge or suspend the parenting Order to the extent to which it provides for a child to spend time with a person, but only where the Court also makes or varies a family violence Order, and has material before it that was not before the Family Law Court making the initial parenting Order.
A family violence Order also provides evidence of family violence in the relationship, and can contribute to the argument that a child is at an unacceptable risk of harm in the offending parent’s unsupervised care. Most importantly however, it provides interim and/or final protection to those who have suffered family violence and in a lot of cases, is the first step towards a safer future for the affected parties.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?