Sydney Family Domestic Violence Lawyers
Facts, Free Consult & Fees 2023
Relevance of Family Violence in Family Law
Insights & Tips 2023
Almost half our clients over the 8 years as Senior Family Law practitioner exhibit signs of Family violence. This is highly relevant under the Family Law Act. Insights, facts and information with expert legal tips, from Senior Lawyer Jaswinder (Jas) Sekhon, Principal, Goldman Law.
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Domestic Violence – Relevance to Family Law
Increasing Focus on Existing Law Reforms and Family Violence
Jaswinder Sekhon, an expert and experienced Principal at Goldman Law, highlights that contributions made by a party experiencing ongoing and severe domestic violence are considered more valuable due to the challenging circumstances under which they were made.
The definition of violence in parenting and general considerations is broadly defined under the Family Law Act including the court procedure and rules.
Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
Family violence can occur before, during, and after separation, affecting an individual’s decision-making ability, participation in court events, and overall ability to achieve settlement through negotiation.
Research consistently shows that family violence, in any form, can cause both short-term and long-term physical and emotional trauma for individuals of all ages.
Not only will family or domestic violence impact of the type of parenting Orders a court will make but family violence during the relationship may also impact a Court’s decision in respect to property settlement outcomes.
In cases involving domestic violence there is authority for the court finding that contributions made by a party while suffering domestic violence, particularly ongoing and severe domestic violence, are to be considered more valuable because of the arduous circumstances in which they were made.
Accordingly, additional weight given to those contributions is a factor taken into account by the court in the overall property settlement.
Family Violence: FCFOA Overview
The Federal Circuit and Family Court of Australia (the Courts) take family violence very seriously.
The Courts are guided by the following principles in responding to family violence concerns:
- Safety is a right and a priority for everyone.
- Family violence affects everyone in a family.
- The Courts have a particular concern about both the immediate and longer-term impacts of family violence on children.
- Family violence can occur before, during and after separation. This may affect an individual’s ability to make choices about their family law matter and to take part in court events.
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Practical Legal Expert Tips By – Jaswinder (Jas) Sekhon; Principal Goldman Law
What is Family Violence?
Section 4AB of the Family Law Act 1975 describes family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Examples of behaviours that may constitute family violence include (but are not limited to):
- assault (including sexual assault or other sexually abusive behaviour)
- stalking
- repeated derogatory taunts
- intentionally damaging or destroying property
- intentionally causing death or injury to an animal
- unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty
- 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, and
- preventing the family member from making or keeping connections with his or her family, friends or culture.
The definition of child abuse includes serious psychological harm arising from the child being subjected to or exposed to family violence. Further detail is set out in section 4(1) of the Family Law Act.
Forms of Family Violence Not Just Physical
Not all family violence involves physical violence. It can take many forms such as sexual violence and coercion, emotional abuse (including denigration), financial abuse, and spiritual or cultural abuse.
While family violence is most commonly directed toward a current or former partner, it may also be directed to another member of the family such as a parent or sibling.
Research consistently indicates that all forms of family violence can cause short or long term physical and/or emotional trauma for children, young people and adults. For information about its impacts on children please see Family violence and children.
Importantly, family violence can also affect a person’s willingness and ability:
- to initiate legal proceedings
- to come to the Court
- to participate in court events, and/or
- to achieve settlement of their dispute through negotiation.
Family Advocacy and Support Services
Each Australian state and territory has a Family Advocacy and Support Service (FASS). FASS provides free legal advice and support at court for people affected by domestic and family violence.
Family Law Act 1975, s. 4AB.
Domestic Violence Quick Facts & Fees 2023
A broad definition of family violence was introduced into the Family Law Act 1975 (Cth) (FLA) in 2012 and applies in all cases filed after 7 June 2012. The definition removed the requirement that the victim’s fear be ‘reasonable’, in recognition of the subjective experience of fear and the psychological impact of violence.
In Carra & Shultz [2012] FMCAfam 930 the father alleged that the mother, by withholding the child from him, was committing family violence by ‘preventing the family member from making or keeping connections with his or her family, friends or culture’. The court held that the withholding of time or communication with a child, by itself, does not constitute family violence. The essence of the definition of family violence is behaviour which ‘coerces or controls’ a family member ‘or causes [them] to be fearful’ (para 7).
Section 61DA(2) provides that the presumption does not apply in cases of child abuse or family violence. In these circumstances, the court must consider whether sole parental responsibility or equal shared parental responsibility is appropriate. In Hutley & Hutley [2012] FamCA 679, while the mother adduced evidence that the father had been aggressive and intimidating during their relationship and was found guilty of assault, the court still ordered ESPR on the basis that the parties had managed to make joint decisions about the children.
The leading case of Kennon and Kennon established that an adjustment in a property settlement case can be made on the basis of family violence. Kennon and subsequent cases indicate that a small adjustment will be made but only in exceptional circumstances.
Kennon and Kennon [1997] FamCA 27; (1997) 22 Fam LR 1
In Kennon, the Full Court of the Family Court recognised family violence as a relevant issue in assessing the adjustment that should be made in a property settlement case. In that case there was a 4-year marriage and no children and a history of domestic violence assaults.
Devon & Devon [2014] FCCA 1566
In Devon, the parties were married for 31 years and had 4 adult children, including one with an intellectual disability. There were no significant assets at the start of the marriage and it was accepted that the husband ran the family business and the wife was the homemaker and main carer of the children.
There was an additional loading in the wife’s favour of a further 15 per cent based on future needs. Ultimately the wife received 70% of the asset pool and retained her superannuation (as did the husband), a percentage which included her claim for spousal maintenance.
Scott & Scott [2015] FCCA 2394
In Scott the parties had 3 children aged 16,17 and 20 years. The wife argued family violence by the husband and for an adjustment of the property in her favour between 65% and 80% which included a Kennon adjustment.
The wife gave evidence of family violence. She was isolated from her family and friends and the husband did not allow her to return home to spend time with her dying mother. The husband had physically assaulted her and there was verbal and physical abuse throughout the marriage witnessed by the children. The husband unsuccessfully argued that the wife’s evidence of family violence was not corroborated.
Importantly, the FLA does not require independent verification of allegations of family violence (such as police or medical reports) for a court to be satisfied that it has occurred. As the Full Court of the Family Court said in Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268:
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