The breakdown of a relationship can be a very emotional time for people and it can unfortunately bring out the worst in their behaviour. Domestic violence, more commonly referred to as family violence, is often a relevant factor and major concern in family law cases. When family violence is present within a family law court matter, it can greatly influence the proceedings and the overall outcomes.
In the Federal Circuit and Family Court of Australia, where family law cases are heard, the Court recognises the prevalence and harmful effects of family violence. The Family Law Act 1975 (“the Act”) includes provisions that prioritise the safety and wellbeing of children and family members who have been exposed to family violence.
Family violence, as defined in section 4AB of the Act, “means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful”.
The Act sets out examples of a broad range of offences which constitute family violence including, but 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 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 their 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 does not only impact the partner, but also children of the relationship and extended family. Children are often exposed to physical assaults and verbal abuse, including derogatory remarks between parents. Witnessing family violence can have a long-lasting emotional and developmental impact on children, to the extent that they may need counselling or therapy to understand and/or cope with the situation.
If a person is experiencing family violence, an application for an Apprehended Domestic Violence Order can be applied for by the victim or police to protect that person and children. They may impose restrictions on the abusive party’s behaviour, such as prohibiting contact or requiring them to stay away from certain locations such as their workplace or residence.
In family law cases involving family violence, the court considers evidence and documentation related to the allegations. This can include police reports, medical records, witness statements, and photographs of injuries. It is crucial for victims of family violence to gather and present evidence to support their claims. Subpoena evidence can be obtained from police, hospitals and other organisations to support reported incidences of family violence. However, the Court also recognises the very realistic nature of domestic violence, and that not all incidents of family violence are reported and rely on recounts of the victim and other relevant persons.
The Family Law Courts in Australia provide access to support services for individuals affected by family violence. These services may include counselling, mediation, referrals to community organisations, and safety planning. The police remains the first contact to report to when individuals are experiencing domestic violence or are in immediate danger. The Family Advocacy and Support Service also has an integrated duty lawyer and social worker service available for families affected by family violence. The court aims to protect the safety and welfare of parties and children when attending court hearings.
Overall, the presence of family violence in Australian family law cases significantly influences the decisions made by the court. The focus is on ensuring the safety and wellbeing of all family members, particularly children, and providing appropriate support to victims of family violence.
It is highly recommended for individuals involved in family law cases, particularly those affected by family violence, to seek legal representation. Lawyers with expertise in family law and family violence can provide guidance, support, and advocacy throughout the legal process specific to their needs.
At Gillard Family Lawyers we have experienced solicitors with accredited specialisation in family law. We offer empathy to clients dealing with separation and extra support to clients experiencing family violence. If you need legal help with a Family Law matter, simply get in touch with our friendly team – we’re here to help.
