Family violence occurs where a person displays any threatening, coercive, violent and abusive behaviour towards another member or members of their family.
Family violence is still a prevalent issue, with the Australian Bureau of Statistics (ABS) reporting an estimated 4.2 million people have experienced violence, economic abuse or emotional abuse by their cohabiting partner since the age of 15, and 3.8 million people had been affected by physical or sexual violence perpetrated by an intimate partner or family member.
Family violence can be a significant consideration in family law matters in relation to parenting arrangements and property settlements.
In relation to parenting orders, the Court will assess the impacts a history of family violence may have on the safety of the children. The occurrence of family violence may also allow a party to seek an exemption from the usual requirements to seek Family Dispute Resolution prior to court proceedings.
Understanding Family Violence
Family violence encompasses a wide range of damaging behaviours and may include the following:
- Violent assault;
- Sexual assault;
- Repeated insults and criticism;
- Damage or destruction of property;
- Killing or injuring a family pet;
- Controlling and restricting finances unnecessarily;
- Isolating a family member away from their friends, family and culture;
- Depriving someone of their freedom;
- Threatening injury to a family member or themselves;
- Intentional humiliation; and
- Monitoring and stalking behaviours.
Family violence can have lasting impacts on the victim’s mental and physical health, with family violence identified as one of the leading causes of death, disability and illness in Australian women aged 18 to 44, with 3 in 10 assault hospitalisations being due to family violence in 2020-2021.
Studies have shown all children who have been exposed to family violence are affected in some way by experiencing psychological, emotional and behavioural issues.
In 2018, intimate partner violence contributed to 228 deaths. With the prevalence and pervasiveness of family violence, it is clear why the Court gives significant consideration to the occurrence of family violence in family law matters.
The Impact of Family Violence on Parenting Orders
The paramount considerations for a court when making parenting orders are:
- To protect the children from harm, including physical harm and psychological harm as well as being exposed to witnessing family violence; and
- The benefit for the child to have a meaningful relationship with both parents.
The protection of the child is given more weight when a court is balancing up these two considerations.
Where the Court thinks a child may be at risk due to family violence from one parent, the Court may order that the child spend less time with that parent or under certain conditions such as contact under supervision only.
The Court may also appoint an independent children’s lawyer to investigate where allegations of family violence need further investigation.
Family Violence and Property Settlements
Although the consideration of family violence has more weight in relation to parenting matters, it may also be considered where an individual has had their contributions to the relationship impacted by family violence.
This was demonstrated in the decision in the matter of Marriage of Kennon (1997) 22 Fam LR 1, where the Court found that there had been a “discernible impact” on the wife’s capacity to contribute to the marriage due to violence inflicted by the husband.
Family violence may have impacts on spousal maintenance as well, if the party who was a victim of the violence has long term financial needs as a result. As the Court has discretion when making property settlement orders, they may take family violence into consideration under section 79 of the Family Law Act.
Intervention Orders in Family Law
Family Violence Intervention Orders (FVIO) are court orders obtained to protect an affected family member from family violence.
These orders can be interim, that is until they’ve been heard by the Court, or final for a set period of time. They usually prevent the person accused of family violence from contacting the person identified in the order, or from coming within a certain distance of them.
Sometimes an FVIO might include a family law condition which may allow for communication between the individuals when it relates to family law such as to negotiate child arrangements.
Where an FVIO is in place, there is an obligation to inform the Court to help the Court identify possible risks to children involved. The Court may give considerable weight to the existence of an FVIO as it may indicate that a child may be at risk of family violence.
Regardless of your position in family law proceedings, seeking legal advice is imperative.
Resources and Support for Victims of Family Violence
- Safe Steps: 24/7 family violence response in Victoria (crisis support, information and accommodation). Ph: 1800 015 188, email: safesteps@nullsafesteps.org.au
- The Orange Door: support service for victims of family violence https://www.orangedoor.vic.gov.au/
- Sexual assault crisis line: support service for people who have experienced both past and recent sexual assault. Ph 1300 806 292. https://www.sacl.com.au/
- Child protection: to report children and young people whose safety is at risk https://services.dffh.vic.gov.au/child-protection-contacts
- In an emergency call 000
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Kate Scolyer – Solicitor– Matthies Lawyers
Should you wish to obtain advice regarding your family law matters, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice