How domestic violence is dealt with in Family Court
Unfortunately family violence is prevalent in Australia. The Australian Bureau of Statistics have found that 1 in 6 women and 1 in 16 men have been subjected, since the age of 15, to physical and/or sexual violence and 1 in 4 women and 1 in 6 men to emotional abuse by a current or previous cohabiting partner.
To say that this finding is alarming is an understatement. On average, one woman a week is murdered by her current or former partner. This form of violence is the leading contributor to illness, disability and premature death for women aged 18-44.
So how is this ‘epidemic’ being dealt with in family law proceedings?
What is family violence?
Family violence takes many forms that include physical, sexual, psychological and emotional abuse.
Examples of family violence include (but are not limited to):
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- 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; 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, or his or her liberty.
Australia has ‘no fault’ divorce under the Family Law Act 1975. That means there is no requirement for the Court to consider who is to blame for the marriage breakdown as no grounds for divorce are needed. Therefore, domestic violence will not be considered to be a factor of the breakdown of the marriage.
You must be separated for a period of 12 months before being able to apply for divorce. Many are concerned with this requirement, particularly in the circumstances of family violence as it places victims at further risk of abuse. Almost 40% of women continued to experience violence from their partner while temporarily separated.
Despite the lack of influence family violence has on divorce proceedings, it is considered relevant in property settlement and parenting cases.
The Court takes into account a number of factors when considering property settlement between spouses and partners. This includes the contributions made by each party to the ‘acquisition, improvement and maintenance’ of the assets of the relationship and contributions to the welfare of the family.
The Court can also, in exceptional circumstances, take into account family violence that has occurred and make adjustments accordingly. This is called the ‘Kennon’ adjustment. In the Marriage of Kennon, the Court considered the significance of family violence on property settlement. Here the Court made a percentage adjustment in favour of the wife due to the ‘course of violence’ she experienced during the course of her relationship.
For a ‘Kennon’ adjustment to be made, the following must be established:
- there was violent course of conduct;
- this occurred during the course of the relationship; and
- Such conduct resulted in significant adverse impact on the party’s contributions to the relationship with the contributions being more difficult due to the family violence.
The Court’s paramount consideration in parenting cases is the best interests of the child. It is a balancing act of allowing children to have the benefit of meaningful relationships with both parents whilst also protecting the child from physical and psychological harm and exposure to such harm.
When making an application for parenting orders, it is important that you inform the Court if you have concerns about child abuse or if a family violence intervention order is in place.
An interested party to the proceedings must file a Notice of Child Abuse, Family Violence or Risk of Family Violence in the Family Court. Once filed, the Court must take prompt action and consider whether any interim or procedural orders ought to be made to protect the child, or any of the parties from abuse or family violence and obtain evidence about the allegations as quickly and efficiently as possible.
Generally, parties are required to participate in family dispute resolution processes prior to Court proceedings. However, there is an exemption if the Court reasonably believe there has been family violence or abuse or there is a risk of family violence or abuse.
Further, the general presumption of equal shared parental responsibility does not apply in cases where there are reasonable grounds to believe a parent, or a person who lives with the parent, has engaged in child abuse or family violence.
If you have experienced or are currently experiencing violence and seek assistance, contact 1800RESPECT (1800 737 732) or Relationships Australia on 1300 364 277.
If you require any assistance in relation to family violence and your family law proceedings please contact one of our friendly staff at Bambrick Legal today.