11 May Domestic Violence
The Effects of Domestic Violence on Family Law matters
The power imbalance inherent in any relationship where domestic violence has existed often survives for a long time after the relationship ends; this is particularly so where children are involved. In addressing this issue the Family Law Act 1975 (Cth) contains provisions to protect the victim and ensure not only their safety throughout the course of the proceedings but the continued safety of that parent and the children once final orders have been made. In certain circumstances, the court may even decide that it is not in the best interests of the child or children for that parent to play an ongoing role in their life.
Domestic or family violence against women is the single largest driver of homelessness for women a common factor in child protection notifications and results in a police call-out on average once every two minutes across the country- Domestic Violence Prevention Centre
Mediation or Family Dispute Resolution Conferences (FDRs)
Prior to initiating court proceedings, the Family Law Act 1975 (Cth) requires parties to attend a family dispute resolution conference (FDR) to attempt to settle their disputes outside of court. The law aims to encourage parents to develop cooperative parenting solutions by allowing them to determine the best solution for their family, keeping in mind that once a matter goes to court and the parties are still unable to agree the judge will be making those decisions for you. Prior to commencing court proceedings parties are required to provide the court with a certificate from a registered FDR practitioner confirming that they have attempted to resolve their dispute through mediation. In situations involving domestic violence, this requirement is waived.
Shared Parental Responsibility
When considering children’s matters the underlying priority of the court is to determine what outcome will be in the best interests of the child. Under the Family Law Act 1975 (Cth) there is a presumption that a child’s parents will share parental responsibility for that child even if they choose to separate. Having parental responsibility means being actively involved in making the long-term decisions relating to the health, welfare, education and religion of the child. As domestically violent relationships are built upon a significant imbalance of power the law recognises that this presumption is not only impracticable but dangerous and therefore in these circumstances, the presumption will not apply.
Property Settlement Matters
The Family Law Act provides the court with certain discretions to equalise the parties’ positions after separation, this includes the discretion to alter the property rights of each party.
The approach taken by the court includes:
- Identifying and valuing the net assets of the relationship;
- Assessing the financial and non-financial contributions of both parties to the relationship;
- Examining factors such as the future earning capacity of each party, any medical or other issues that may inhibit their ability for future earnings, their child support obligations and ability to provide spousal maintenance; and
- Making a determination that is, in all the circumstances, just and equitable.
Where domestic violence has been shown to exist within a relationship the contributions of a party who has endured ongoing and severe violence are likely to be far more valuable by virtue of the onerous environment in which they were made such that they may attain a greater share of the asset pool.
Commencing family law proceedings can be terrifying at the best of times let alone where there has been a history of domestic violence. At Adelaide Family Lawyers our family law specialists are here to advise you on your rights, help guide you through the court process and if circumstances permit we can arrange for a secure room at court to remove the fear of having to face your former partner at court.