How Domestic Violence Is Dealt With in Family Court

How domestic violence is dealt with in the family court remains a pressing concern, given the unfortunate prevalence of family violence in Australia.

The Australian Bureau of Statistics has 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 (as of 2017).

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 & Domestic Violence?

Family violence takes many forms including physical, sexual, psychological, and emotional abuse. Examples of family violence include (but are not limited to):

Assault;
Sexual assault or other sexually abusive behaviour;
Stalking;
Repeated derogatory taunts;
Intentionally damaging or destroying property;
Intentionally causing injury to an animal;
Unreasonably denying a family member the financial autonomy that they would otherwise have had;
Unreasonably withholding financial support needed to meet the reasonable living expenses of a family member (or their child) at a time when the family member is entirely or predominantly dependent on the person for financial support;
Preventing a family member from making or keeping connections with their family, friends, or culture; or
Unlawfully depriving a family member (or any member of the family member’s family) of their liberty.

Domestic Violence Family Court: Divorce

Australia has a ‘no fault’ divorce under the Family Law Act 1975.

That means there is no requirement for the Family 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 in the breakdown of the marriage and divorce.

You must be separated for 12 months before being able to apply for divorce.

Many are concerned with this requirement, particularly in the circumstances of domestic violence as it places victims at further risk of abuse.

Almost 40% of women continued to experience violence from their partners while temporarily separated.

Despite the lack of influence domestic violence has on divorce proceedings, it is considered relevant in property settlement and parenting cases.

Domestic Violence Family Court: Property Settlement

The Family Court takes into account several 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 Family Court can also, in exceptional circumstances, take into account domestic violence that has occurred and make property settlement adjustments accordingly. This is called the ‘Kennon’ adjustment.

In the Marriage of Kennon, the Family Court considered the significance of domestic violence on property settlement.

Here the Family Court made a percentage adjustment in favour of the wife due to the ‘course of violence’ she experienced during her relationship.

For a ‘Kennon’ adjustment to be made, the following must be established:

There was a violent course of conduct;
This occurred during the relationship; and
Such conduct resulted in a significant adverse impact on the party’s contributions to the relationship with the contributions being more difficult due to the domestic violence.

Domestic Violence & Parenting Cases

The Family 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, you must inform the Family 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 Family 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 domestic violence and obtain evidence about the allegations as quickly and efficiently as possible.

Generally, parties are required to participate in family dispute resolution processes before Court proceedings.

However, there is an exemption if the Family Court reasonably believes there has been domestic violence or abuse or if there is a risk of domestic 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 domestic 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.

Contact Us

For more information about how domestic violence is dealt with in Family Court, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.