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Family Violence

Domestic violence can occur in a number of different ways. It can be physical or sexual abuse, but 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. Such orders are dealt with by police and criminal lawyers in the Magistrates’ Courts. These orders can become 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 you can contact 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 was amended to include coercion and control and the definition of abuse amended to include the wording “serious psychological harm”.

The definition of family violence in Section 4AB (1) of the Act 1975 reads:View post

…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 Act considers family violence. These are:

  • assault; or
  • sexual assault or sexually abusive behaviour;
  • stalking;
  • 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 form requires parties to set out any allegations of child abuse, family violence or other risks about to the child or children.

Family Violence and Property Settlements

Domestic violence is not typically relevant in 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 1997 Full Court case of Kennon v Kennon.

In this case, the wife raised the argument that the assault and battery she suffered from the husband’s conduct needed 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 an injury, making it difficult for them to conduct homemaker duties.

It is important to note that the court in Kennon made it clear that this principle would apply only 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. 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.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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