Introduction
The recognition of the vitriol of family violence (including but not limited to physical violence, verbal abuse, psychological ill-treatments, financial control, neglect etc) has gained worldwide momentum in recent decades. The Australian Family Law regime is no exception. The regime is meaningfully adorned with countermeasures against allegations of family violence in a bid to identify, minimise, rectify and prevent family violence from occurring. This article specifically sets out instances where family violence interacts with the Family Law regime, and how you could navigate through the regime in such situations.
Family violence in parenting proceedings
As discussed in a separate article, parenting proceeding is a child(ren)-centric processes that seeks to promote the pursuit and preservation of the best interests of child(ren) through encouraging, and facilitating, the child(ren) spending meaningful time with their parents, and parents actively involving themselves in the life(ves) of the child(ren).
Family violence is a risk of harm that the Court needs to consider pursuant to Section 60CG of the Family Law Act
The onset, or allegations of onset, of family violence poses an interesting challenge for the regime. Clearly, family violence is highly concerning regardless of how it is manifested. The Family Law regime adopts the view that not only should the child(re) be the subject of family violence, the child(ren) should not be exposed to the perpetuation of family violence either i.e. witnessing their parents engaging in conduct that constitute family violence against one another.
However, the mere presence of family violence does not necessarily mean that the child(ren) would not spend any time with the perpetuator. As discussed in a separate article, there is significant utility, and highly beneficial, for the child(ren) to have meaningful relationship with the parents. In the circumstances, the regime needs to balance the detriment of potentially exposing the child(ren) to an alleged perpetrator of family violence, against the harm of the children not having a meaningful relationship with the alleged perpetrator at all.
The most common method adopted by the Court when confronted by allegations of family violence is the implementation of supervised visits.
Oftentimes, allegations of family violence are accompanied by the police instituting criminal proceedings against the alleged perpetrator, and/or the implementation of protection orders (such as ADVO in NSW, or FVO in ACT). The consequences of such measures are that the alleged perpetrator is usually prohibited from spending any time with the child(ren), a notion that is not favoured by the Family Law regime unless the risk has proven to be extremely high.
One solution that is frequently deployed in such situations is the implementation of supervised visits. Supervised visits are visitation sessions (usually anywhere between 30 minutes to 2 hours) that are monitored by professional supervisors. These visits could either be at a contact centre, or in a public space. During these visits, these supervisors monitors the visitation sessions, make reports of everything that happens during these sessions, and these reports could either be produced, or become the subjects of subpoenas. Ordinarily, the Court would permit contacts to become unsupervised if, following a number of visits, the supervisors do not raise any concerns regarding the supervised parent’s behaviours, or fear from the child(ren). Once the Court has made such a determination, it is capable of overriding any existing protection orders.
It should be noted that it is extremely rare for the Court to order perpetual supervised visits. This means that supervision is usually a temporary measure only
Sometimes, and where family violence are mere allegations, the Court determine that supervised visits are not necessary. However, the Court may order, through injunctions, prohibiting the parent(s) from engaging in conduct constituting family violence against the child(ren). If any of the parent(s) fails to comply with the said Order, s/he may be in contravention, which could be prosecuted criminally in the Family Court.
In rare and extraordinary scenarios, the Court may suspend time between the child(ren) and the parent(s). This is highly dependant on the specific circumstances, but may include situations where the child(ren) have not only expressed intense aversion to spending time with one of the parent(s), but have engaged in active behaviours to avoid time with the said parent e.g. actively running away.
In these situations, the Court, although highly unwilling, may order for the suspension of time between the child(ren) and the parent(s). However, this is usually a temporary solution, as the Court would most certainly order for the preparation of a child impact report, a specific purpose family report, or a full family report in order to ascertain the best way forward for the reparation of the child(ren)’s relationship with the affected parent(s). This means that, despite the drastic measure, it remains the Court’s objective to facilitate a meaningful relationship between the child(ren) and the parents.
Allegations of violence are also thoroughly examined during the preparation of family report(s), which are reports prepared by child experts for the purpose of parenting proceedings.
The child expert would assess the nature, cause, and impact of any alleged family violence, and propose clinical and practical solutions to combat such violence in the context of preserving the child(ren)’s relationship with the parent(s).
This recommendation is usually given significant weight by the Court when adjudicating the parenting proceedings.
Last but not least, the Court also has a significant role to play when dealing with allegations of family violence.
As the name suggests, allegations of family violence are merely allegations. The mere fact that one parent has raised concerns of family violence (even if factually true) does not automatically equate to it being established. Allegations of family violence could only be legally held as fact when the Court says so after the trial, with the assistance of cross examinations. Even if interim orders have been made for supervisions, the Court may well conclude at trial that family violence never existed. Conversely, even if the Court has rejected during interim hearings of the existence of family violence, the Court could nevertheless find that family violence did in fact occur.
Hence, one should never use interim court results as a benchmark or indicator as to how the trial would progress.
That said, it is still paramount to understand that the Australian Family Law regime does not operate to penalise family violence. First and foremost, the regime seeks to rehabilitate and work around family violence without compromising the relationship between the child(ren) and the parent(s). It is only when this is not possible, or practical, that Court would implement measures to minimise the child(ren)’s exposure to family violence.
Family violence in property proceedings
As discussed in a separate article, property settlement in Australia is a contribution-based regime, not a fault-based system. Hence, the prima facie existence of family violence, even if proven at trial, does not equate to a larger share of property re-distribution. However, family violence may indirectly result in some bases for certain claims to be made.
If family violence is proven, the victim is at liberty to sue for compensatory damages arising from the personal injuries inflicted by the perpetrator. This is a separate and distinct claim that is not bound by the ordinary operations of the family law regime.
The constant perpetuation of family violence by one party on the family would inevitably result in the other party putting a disproportionate amount of effort to upkeep the welfare of the family. In specific circumstances and if proven, it may be open to the victim party to argue that s/he had made more contributions as a result of the family violence.
It is also not unusual for family violence to result in long-term impact on a person’s physical and/or mental health. If the family violence, and the impact on the health are respectively proven, the victim party may also claim for greater future-need adjustments arising from the harm that s/he has suffered from the family violence.
Conclusion
It could be seen that family violence has a nuanced role in the Australian Family Law regime, and it is important to speak to an experienced legal practitioner when navigating through such allegations.
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