Family Law Blog

Family Violence in Family Law Matters

A significant proportion of the family law system is devoted to the challenging task of identifying individuals who might be vulnerable or at risk of potential family violence. From there, many procedures and principles guide the Court, the Judges, the parties and those assisting and children through what can obviously be a time of significant stress and confusion.

That said, “family violence” can include a more significant list of behaviours than many might think.

In this article, we will run through some of the more specific types of family violence that can be raised in family law proceedings.

How Prevalent is Family Violence?

The Federal Circuit and Family Court of Australia has suggested that more than 80% of all family law proceedings involve allegations of family violence.

Fed Court Family Violence Numbers

If correct, that is a staggering statistic that obviously highlights not just the significant complexity of the separation process but also the potential scope of what might be considered family violence.

Why do Allegations of Family Violence Matter?

A person might make allegations of family violence for any number of reasons.

As a general rule, though, the main reasons tend to be some combination of:

  1. A desire to seek orders needed for safety;
  2. Wanting to displace the presumption that parenting responsibility (that is, decisions about a child’s upbringing) should be shared between the parties. A finding of family violence will shift this presumption and allow the Court to make orders favouring one party over the other in terms of parental responsibility, should it be inclined to do so.

For now we won’t comment on how those specific items work (or if they do), other than to acknowledge that they are common reasons to be looking at including suggestions of family violence as part of separation.

So with that in mind, what actually counts as family violence in the context of family law matters?

Family Violence

The Family Law Act provides a definition of family violence, followed by “examples”.

The best way to think of this is that the examples are a guide as to what the definition is supposed to include.

That said, something could still be family violence even if it isn’t in the list of examples, provided it falls within the definition.

So if you believe a behaviour might be family violence but isn’t described adequately in the list we’re about to share, it’s best to get in touch for some advice specific to your circumstances.

Definition of Family Violence

Here’s our definition:

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

So as you can see, we have a tiered test. We must have:

  1. Violent OR threatening OR other behaviour;
  2. The behaviour from (1) needs to either coerce or control a family member or cause them to be fearful.

As you can see, it can be quite broad. So, for example, “other behaviour” that causes someone to “be fearful” could apply in any number of situations.

With that in mind, we get a better idea of what should be captured by the definition when we look at the examples provided.

Examples of Family Violence

Again, the Family Law Act provides some specific examples of things that are considered to be family violence. As we’ve mentioned, though, this list is not exhaustive.

Behaviour that may constitute family violence includes:

  1. Assault;
  2. Sexual assault or sexually abusive behaviour;
  3. Stalking;
  4. Repeated derogatory taunts;
  5. Intentionally damaging or destroying property;
  6. Intentionally causing death or injury to an animal;
  7. Unreasonably denying financial autonomy;
  8. Unreasonably withholding financial support to meet reasonable living expenses when the other person is dependent on you to do so;
  9. Preventing someone from making or keeping connections with friends or family; or
  10. Unlawfully depriving the person of their liberty.

One of the things that you’ll notice is that plenty of the examples in this list are offences/crimes in their own right.

An Important Word – “May”

While the list we’ve put above contains specific examples of behaviours that could be counted as family violence, it is not inevitable that any behaviour meeting one of those descriptions is going to be considered family violence.

So, let’s say you live on a farm and your spouse is regularly responsible for butchering the chickens that provide the family their livelihood. Strictly this is “intentionally causing death to an animal”. But it’s highly unlikely to be considered family violence in those circumstances.

In contrast, deliberately injuring a family member’s pet dog as punishment or in order to make them behave a particular way could quite possibly be considered family violence.

Have you Experienced Family Violence?

For obvious reasons, both family violence itself and making allegations of family violence against your ex are serious matters with potentially serious consequences.

If you’re intending on separating having experienced current or historical family violence, it’s extremely important to get the right advice early on to ensure that you are aware of all the options, Court processes, safety mechanisms and likely outcomes.

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