Category: Family Law

16
Oct

Family law and domestic violence: the facts.

The Australian Government’s announcement of a Joint Parliamentary Committee to conduct a wide-ranging inquiry into the family law system has caused much controversy. Senator Hanson, co-chair of the inquiry, has already made the news over comments implying women who report domestic violence (also known as family violence) in the context of family law cases are often lying.

The enquiry and controversy doesn’t help those in the midst of separating from a partner while dealing with domestic violence.

If you’re wondering how allegations of domestic violence are treated by courts dealing with family law disputes, keep reading.

 

What are the effects of domestic violence on parenting orders?

When making parenting orders, the best interests of children is always the overarching consideration for the court.

The courts take domestic violence very seriously and where an allegation of violence is made or there is an existing domestic violence order, the court is guided in its approach by the following principles:

  • domestic violence affects everyone in a family, including children;
  • the courts are particularly concerned with the immediate and possible long term adverse impacts on a child’s physical and mental wellbeing; and
  • even if children do not directly witness the violence, they can still be aware of it and be impacted by it.

In the process of making parenting orders, the court seeks to build a complete picture of the family taking into account things like the child’s views, the parent’s relationship with the child, the extent to which he or she helped to maintain the child, the capacity of the parent to provide for the child and the parent’s attitude to parenting.

However, in cases of domestic violence or the risk of being exposed to violence, the need to protect children from harm is given greater weight. If the court finds there has been family violence, it will make orders to protect the children. This may mean the court delays making final orders and instead orders an investigation or a report into the allegations but in the meantime, the court will try to make an interim order that protects the children.

If the court believes that children are at risk of domestic violence when in one parent’s care, the court may order that parent spend time with the children only when supervised by another person. This person can be a relative or can be a designated person from a contact service, which is a designated place where children can be dropped off and picked up for the purposes of spending supervised care with a parent.

Sometimes, the court will appoint an independent children’s lawyer who can investigate and make a recommendation to the court about the children’s best interests.

 

Is there anything else the court can do?

Courts recognise that family violence can continue to occur after separation and it may affect the ability of people to make choices about their family law matter and to take part in court events.

Generally, if you’re involved in a dispute about parenting arrangements, you’ll be required to try to resolve the matter by family dispute resolution. However, if family violence is present you may be exempt from attending family dispute resolution services before applying to a court for parenting orders.

If you hold a genuine fear about attending a court appointment at the same time or in the same room as your former partner, the court also can make provisions to assist you, such as allowing you to use available safe rooms and provision can sometimes be made for separate entry and exit points.

Section 67ZBB of the Family Law Act requires the Court to take ‘prompt action’ in cases where a person applies for parenting orders and files a Notice of Child Abuse, Family Violence, or Risk of Family Violence.

 

What are the effects of domestic violence on financial orders?

There can be financial consequences where there is significant evidence of domestic violence. In the case of Kennon v Kennon, the wife asked for a property adjustment in her favour on the basis that she had allegedly endured violence at the hands of her husband.

The court decided that it could take this course if:

  • The wife could establish this alleged violence did in fact occur;
  • She could show it had a “discernible impact” on her; and
  • Her contributions to the relationship had been significantly more arduous because of the domestic violence.

 

What happens if someone makes false allegation of domestic violence?

When asked about the basis of her statements about women making false allegations of violence, Senator Hanson pointed to anecdotal evidence. While the extent of the problem is difficult to gauge, there have been cases that involve a person taking advantage of the domestic violence protections for their own gain. In the case of Kapicic & Bakal, the mother gave evidence about her child showing disturbing and sexualised behaviour on return from the father’s house.

In this case, the court found the mother’s allegations to be without merit and made with malicious intent. The judge granted the father sole parental responsibility.

The court also has the discretion to award costs against a party in family law under the general provision about costs in Section 117 of the Act and in those provisions could be used to order a parent who makes false allegations to pay the other parent’s legal costs.

False allegations of domestic violence are always going to be a controversial subject.  There is no doubt that false allegations are sometimes made. However, it’s a sad reality that the majority of allegations of domestic violence are indeed based on fact.  The courts already have a wide range of powers to make orders dealing with claims of domestic violence, whether valid or invalid.

Would you like to speak to one of our experienced and understanding family lawyers about your situation? Contact us now.

If you’re experiencing domestic violence and need help, call 000 in an emergency or Lifeline (13 11 14) or Australia’s National Counselling service (1800RESPECT).

 

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment