Unfortunately, family violence often plays a part in the breakdown of a relationship. That violence can cause irreparable damage to the victims, which often include, either directly or indirectly, the children of a relationship.
It is acknowledged that, in determining many aspects of a family law matter, consideration must be given to whether there has been family violence, and, if so, how it has impacted upon the relationship, and is likely to impact upon the family dynamic in the future. What follows are just some of the examples of how family violence is taken into account in family law matters.
What constitutes family violence?
The first consideration is what constitutes family violence. The definition as set out in the Family Law Act, arising out of reasonably recent amendments, is a broad one, and takes into account that not all family violence involves overt behaviour, such as an assault. Family violence under the Family Law Act is defined as 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.
Examples of behaviour that may constitute family violence include, in addition to what a person would expect, includes
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the 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; and
- preventing the family member from making or keeping connections with his or her family, friends or culture
Equal Shared Responsibility
When determining a parenting matter a court must consider whether the parents should have equal shared parental responsibility - that is, whether they should make decisions about the children's long term welfare together. The Family Law Act provides that there is a presumption in favour of equal shared responsibility. However, that presumption does not apply if there has been a history of family violence. The flow on effect from that is significant. If there is no equal shared parental responsibility, then the court is not required by the legislation to consider whether the children should spend equal time with each parent, or even substantial or significant time with one parent or the other.
Similarly, to commence proceedings in the Family Court or Federal Circuit Court in relation to parenting matters, parties must first undertake mediation, and obtain a Certificate to confirm that mediation has taken place. However, a party need not obtain that certificate if they can demonstrate that there is a risk of family violence from one of the parties.
In relation to parenting matters generally, the court must consider what orders to make having regard to the best interest of the children. One of the primary factors, or considerations, is the need to protect children from the risk of abuse or family violence. The existence of a Family Violence Order (or AVO) must also be taken into account and will be of particular importance if a party wishes to move away with a child, and one of the arguments is the conflict between the parties.
Family violence may also be regarded in property matters. If a party's earning capacity is affected by family violence, or the contributions are made more onerous as a consequence of family violence, then the court may consider making a property adjustment in their favour to recognise the effect of the violence on their ongoing earning capacity, or to reflect their greater contributions.
All of these considerations are entirely proper and appropriate, and are designed to go some way to assisting the victims of family violence in their ongoing dealings with their spouse. However, two things are extremely important. Firstly, it is incumbent upon solicitors to ensure that the information is presented to the court the correct way. The court will not make findings that there has been family violence if they cannot conclude that from the evidence. Engaging an Accredited Specialist in Family Law to present your case is one step that you can take to ensure that this occurs.
Secondly, these allegations should not be made lightly. The consequences of bringing false allegations can be significant and can cause the court to be sceptical of allegations of family violence that are genuinely raised.