Domestic and family Violence
Fundamentals for family lawyers
Amy Sanders-Robbins
Domestic and family violence can affect anyone in our community regardless of age, gender, wealth or cultural background.
Defining domestic and family violence has significant implications for how the criminal justice system, family law system, human services sector and wider community recognise, understand, and respond to the complex nature of the issue.[i] At a community level, domestic and family violence is often assumed to be an act of physical violence within a relationship or the home. However, the act of domestic and family violence is multifaceted and often entails a range of physical and non-physical behaviours. The following figure summarises the broad range of acts that constitute domestic and family violence:
Domestic and family violence in the Family Law Act 1975 (Cth)
Domestic and family violence is defined in varying ways throughout each jurisdiction in Australia. In the courts exercising family law jurisdiction, domestic and family violence is referred to as ‘family violence’ and is defined in section 4AB of the Family Law Act 1975 (Cth) (“the FLA”).
“(1) For the purposes of this Act, family violence means 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.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) 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
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”
The examples of behaviour outlined in section 4AB(2) of the FLA do not constitute family violence on their own. The court must be satisfied that the described behaviour falls within the section 4AB(1); that is, the behaviour coerces or controls a family member or the behaviour causes a family member to be fearful.[iii]
The definition is gender neutral to encompass abusive acts committed by men and women in heterosexual and same-sex relationships, and takes into account the different types of family violence that can occur within a relationship.[iv]
Domestic and family violence: its impact on parental responsibility and parenting orders
The relevance of family violence (or child abuse) was elevated following the 2006 amendments to the FLA, when protecting children from family violence became an object of the FLA and one of the primary considerations in determining what parenting order is in the best interests of the child.[v] When making a parenting order, the court must consider the best interests of the child as the paramount consideration, and must consider the factors outlined in section 60CC of the FLA. These factors comprise of two primary considerations and 14 additional considerations. The first primary consideration is the benefit of the child having a meaningful relationship with each parent, and the second is the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect and family violence.[vi] The 2012 amendments to the FLA require the court to give greater weight to the right of the child to be protected from harm.
The difficulty with an evidence-based approach is that, by its very nature, family violence occurs in the context of intimate relationships which can be isolated/insulated from independent evidence. Further, victims have likely experienced barriers to disclosure as a result of the coercive and controlling behaviours directed towards them.[vii] Significantly, victims often have limited knowledge that the behaviour they have experienced falls within the definition of family violence. This, coupled with the sparse evidence and a system that promotes an ongoing interaction between parties (for contact purposes) can impact on how the court effectively responds to family violence.[viii] Studies have shown that contact with a violent parent is generally a negative experience for children, because, “everything that happens to children living in families where there is domestic violence also happens after separation, and sometimes the incidents are worse.”[ix] Therefore, a family law system that promotes shared parenting and the maintenance of parent-child relationships after separation often minimises the relevance and impacts of family violence.
Parenting matters[x] involving family violence are complex. Consistent with the objects set out in section 60B of the FLA, the focus in these matters has to be protecting a child from harm and ensuring that the child is able to reach his or her full potential. This includes an honest recognition of the impact of family violence and its effect on each parent’s capacity to care for the child. This is particularly relevant in the consideration of parental responsibility. That is, how parents make decisions about the major long-term issues relating to a child such as education, health, religion, culture and living arrangements.[xi]
Under section 61DA(1) of the FLA, there is a presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility. Under section 61DA(2) of the FLA, this presumption does not apply where there are reasonable grounds to believe that a parent has abused the subject child or another child within that parent’s family, or there is family violence. Section 61DA(4) of the FLA provides that when the court is making an interim parenting order the presumption applies unless the court considers it would not be appropriate in the circumstances. When the presumption is rebutted, the court will assess whether an order for equal shared parental responsibility is in the best interests of the child.[xii] The case of Goode v Goode (№2) [2007] FamCA 315 highlights that even in circumstances where the court was satisfied that there were reasonable grounds to suggest that the child had been exposed to family violence and the presumption did not apply, the court considered that it was in the child’s best interest for each parent to have equal shared parental responsibility.
An assessment of the parties ability to effectively communicate and parent free from coercion or control, or as part of a dynamic that previously or continues to be marred by family violence, is not explicit under sections 61DA or 60CC of the FLA. The court could have regard to those matters as a relevant fact or circumstance under section 60CC(3)(m), however, there is no specific or clear direction around this. One of the criticisms of this legislative framework is that it does not adequately provide for an honest consideration of the dynamic of family violence, the personalities of the parents, differing parenting styles and the effect these factors have on the child and effective parenting.[xiii] Significantly, research indicates that parenting orders in matters involving family violence are not substantially different from matters not involving family violence..[xiv]
It is incumbent on practitioners and judicial officers to be informed of the wide-ranging types of family violence and related behaviours, the effect this behaviour has on children, and each parent’s capacity to parent during the relationship, separation and post-separation.
Family law matters exist in an environment where evidence is currency. Accordingly, practitioners have to ensure that they carefully consider the evidence that is submitted to the court and:
Ø Ensure affidavits clearly outline behaviours during the relationship and after separation that fall within the definition of family violence, as well as the impact of those behaviours on the children and on each party’s capacity to parent and co‑parent and communicate now and into the future.
Ø If seeking to rebut the presumption of equal shared parental responsibility, clearly outline how family violence, conflict and dysfunction between the parties will affect decision making about the child and how this will compromise the child’s best interests.
Ø Identify and obtain corroborating evidence from multiple sources in relation to the family violence and its impact.
Ø Obtain a family report from an appropriately qualified expert, and tailor instructions to ensure the expert is alert to relevant issues, relevant material including subpoena documents are provided and authority is given to speak to the school, teachers, extended family members and counsellors or psychologists treating either party or the child. If possible, seek to have the initial assessment occur over multiple meetings or days to encourage the development of rapport and assessment of the parties in a less clinical and stressful environment.[xv]
Ø Obtain updated family reports to better inform the court about how the parenting arrangements are progressing and to identify any ongoing impacts of family violence and the child’s best interests. This might include attending contact changeovers, observing parent/child interactions out of the office and assessing each parent’s and the child’s progress.[xvi]
Ø Ensure that all submissions to the court focus on the need to protect the child from harm. [xvii]
There is a checklist of the legislative requirements to follow in parenting cases involving allegations or risks of family violence or abuse or neglect detailed in the Family Violence Best Practice Principles.[xviii]
Practitioners should also refer to the Australian Solicitor Conduct Rules 2012 (“ASCR”) and their obligations, specifically rules 4.1.2, 4.1.4, 5, 7, 19, 20, 34.1 and 34.2.
Impact of domestic and family violence on dispute resolution
Prior to the commencement of parenting proceedings, section 60I of the FLA requires parties to participate in family dispute resolution in an effort to resolve the matter or narrow the issues in dispute. This is mandatory except where there are reasonable grounds to believe:
Ø there has been family violence or abuse; or
Ø there is a risk of family violence or abuse.
It is important for practitioners to be alert to the exceptions to the requirement for a “Section 60I Certificate” contained in section 60I(9) of the FLA.
Notwithstanding the exceptions contained in section 60I(9) of the FLA, family dispute resolution can occur when there are allegations of family violence, depending on the circumstances, complexities and needs of the individual family. It is important for practitioners and mediators to be aware of any family violence and to formulate a plan on how to manage its impact, such as developing a safety plan, arranging for a support person and ensuring that the client feels empowered to make their own decisions throughout the process. A party cannot effectively engage in family dispute resolution or mediation if they are concerned for their safety or are unable to freely provide instructions and make decisions.
Impact of domestic and family violence in property matters
The FLA provides the Family Law Courts with broad powers in relation to the property interests of married and de facto persons. These broad powers include the discretion to make property adjustment orders, superannuation orders, injunctions and maintenance. Section 79 of the FLA in respect of married couples and section 90SM FLA in respect to de facto couples provide for the court to make “such order as it considers appropriate” having regard to the financial, non‑financial and care contributions of the parties and the factors contained in sections 75(2) and 90SF(3) of the FLA.
The court’s discretion to alter interests in property is limited by the requirement that the “court should not make an order under these sections unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.” There is no specific requirement for the court to take into account family violence when determining what is an appropriate property order to make in the circumstances.[xix]
In Marriage of Kennon [1997] FamCA 27 (“Kennon”), the majority stated that where there is a course of violent conduct during the marriage which is demonstrated to have had a significant adverse impact on a party’s contribution to the marriage, or have made his or her contributions significantly more arduous than they ought to have been, the trial judge is entitled to take this factor into account in assessing the parties’ respective contributions pursuant to section 79.[xx] The court emphasised that this principle would only apply in exceptional cases.
The test in Kennon is of a high threshold and does not take into account the potential relevance of family violence to the factors set out in sections 75(2) and 90SF(3) of the FLA.
A significant implication of family violence is the effect it has on each party’s bargaining power or capacity to negotiate. Dynamics that exist where a party has experienced emotional abuse, intimidation or threats during the relationship often continue following separation.
In property matters[xxi] where there is a history of family violence, practitioners should take care to highlight to the court relevant facts including:
Ø Evidence of the family violence alleged.
Ø The impact family violence has had on matters under sections 79 and 90SM of the FLA, in particular the financial and caregiving contributions and any mental or physical health impacts.
Ø The impact that the family violence will have on relevant factors under sections 75(2) and 90SF(3) of the FLA, for example, impacts on health, income earning capacity, caregiving of children and child support (including delayed payment or arrears which may cause financial hardship).
Ø Corroborating evidence from experts such as psychologists, psychiatrists or occupational therapists as to the effect that the family violence has had on the emotional, psychological and physical wellbeing of the affected party, and recommended future treatment plan and associated costs.
Social attitudes around family violence and its impacts have vastly changed in the 20 years since Kennon and, as such, the legislative framework relating to property matters ought to be reformed to ensure that the court is able to make orders that are just and equitable in all the circumstances.
Conclusion
The legal system that governs family relationships must effectively respond to domestic and family violence. Despite the 2012 amendments to the FLA, the emphasis on the benefit to a child of a meaningful relationship with both parents has not shifted to an extent that adequately prioritises protection from harm. This focus compromises the court’s ability to effectively respond to the complex nature of family violence, and make parenting orders that are genuinely in the best interests of children.
This article has highlighted the need for legislative reform to enable the Family Law Courts to take family violence into account in property matters, without having to meet the high test established by Kennon.
Footnotes
[iii] Lyons and Adder [2014] FamCAFC 6 and French and Fetala [2014] FamCAFC 57
[vi] Section 60CC(2) of the Family Law Act 1975(Cth)
[vii] Jeffries, S, Field, R, Menih, H and Rathus, Z, Good Evidence, Safe Outcomes in Parenting Matters Involving Domestic Violence? Understanding Family Report Writing Practice From the Perspective of Professionals Working in the Family Law System, UNSW Law Journal, Volume 39(4), 2016, p 1357
[viii] Ibid 39
[ix] Ibid 39, p 1363; Radford, L and Hester M, Mothering through Domestic Violence, Jessica Kingsley Publishers, 2006, p 92–93
[x] The term ‘matters’ has been used to take into account parenting proceedings before the court and parenting matters that are resolved outside of the court process.
[xiii] Ibid 39, 9 1359–1363
[xiv] Jeffries, S, In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments That Guide Judicial Determinations, Laws 2016, 5, 14, p 5–7
[xv] Ibid 39, p 1384
[xvi] Ibid 39, p 1384
[xvii] Ibid 39, p 1386
[xix] Sections 79 and 90SM of the Family Law Act 1975 (Cth) and section 205ZG Family Court Act 19975 (WA)
[xx] Marriage of Kennon [1997] FamCA 27
[xxi] The term ‘matters’ has been used to take into account property proceedings before the Court and property matters that are resolved outside of the court process.
