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Domestic Violence and Family Law

Domestic Violence can affect people of all ages, socioeconomic and demographic groups and unfortunately can often go unreported particularly when it occurs during a relationship with a spouse or partner. However it is not uncommon for historical and current domestic violence to come to light particularly in circumstances of a family law separation. In June 2012, the definition of family violence was amended to include other behaviours that constitute family violence.

The Family Law Act defines Family Violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The legislation includes behaviours such as stalking, repeated derogatory taunts, intentionally damaging property, causing death or injury to an animal and unreasonably denying a family member of their financial autonomy. With respect to children, the legislation also states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”.

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Family Violence and Your Property Settlement Agreement

At the end of a relationship, couples are often faced with the issue of dividing their property. Due to the emotional nature of relationship breakdown, this task often proves tricky for even the best of couples. Where the couple is unable to come to an agreement, the Family Law Act 1975 (Cth) empowers the Court to make a property settlement agreement that it considers appropriate. In coming to a property settlement agreement, the Court considers financial and non-financial contributions to the relationship and the future needs of the parties. The conduct of the parties is generally not a relevant consideration.

Kennon and Kennon– A Case where the Court has taken into account poor behaviour by a party to the relationship in determining a property settlement agreement.   In the case of Kennon, the   Full Court of the Family Court suggested that domestic violence may be a factor that a Court can take into account when deciding what each spouse is entitled to in a  property split up.

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Domestic Violence Lawyer

Sadly, domestic violence is frequent in many relationships. It can have incredibly traumatic long-term effects on a person and once it has occurred, it quickly falls into a common pattern. However, domestic violence is a serious criminal offence and is neither justifiable nor acceptable. If you are a victim of domestic violence, a domestic violence lawyer at Matthews Folbigg Lawyers can provide you with the legal advice necessary to ensure your protection.

What is domestic violence?

Domestic violence can take many forms. Some of the most common types of domestic violence that a person can experience include:

  • Physical violence – unwanted physical contact such as punching, beating and slapping;
  • Emotional violence – behaviour such as name-calling that is directed towards humiliating a person, and affecting his or her confidence;
  • Economical violence –actions or behaviour intended to control a person’s use of their money especially when he or she is financially dependent on their partner;
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The dangers of the self-litigant accused of domestic violence in custody law

This month, the Law Society of NSW Journal discussed a hot topic issue with the aid of the Women’s Legal Services Australia (WLSA): what happens when your abuser has the right to cross-examine you when seeking their child custody rights?

Unlike other jurisdictions, the Family Law Act 1975 that governs family law holds no provision to protect victims or vulnerable persons from direct cross-examination by a perpetrator. Direct cross-examination is having the person alleged to be an abuser of domestic or family violence communicate questions and demand answers directly from you in the witness box.

This is not a fanciful fear; the WSLA conducted a survey in 2015 in respect of the impact of direct cross-examination and family violence. Of the 330 women surveyed, 45% reported that their decision to settle their matter was due to the significant fear of being directly cross-examined by their abuser.

It is extremely important when meeting with a domestic violence lawyer to identify these fears and ensure they have all the information before them when giving you custody advice. Under the Family Law Act, a domestic violence lawyer may be able to best protect your child custody rights by using the safeguards found in the Act. This could mean ensuring that you are given access to the safe room at Court, given a support person at Court or being able to give evidence via audio-visual link up rather than in person at the Court.

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Leaving relationships of abuse knowing your rights

Leaving a relationship, whether it involves property, children, pets or just yourself, is a difficult and personal decision to make. This decision becomes clouded with further issues when there are allegations of violence or emotional abuse.  Often, these issues mean an individual leaves their home and belongings without obtaining correct advice as to their relationship break down.

In Australia, your partner has no right to:

  • Demand that you leave the shared property or home,
  • Prevent you from leaving the shared home either alone, or with your children, belongings or pets,
  • Prevent you from taking personal documentation, such as your passport, financial documents that may contain shared information, medical information or documentation relating to your children,
  • Prevent you from taking jointly owned property that may assist in your day-to-day care of your children or pets such as bedding,  crockery or clothing,
  • Intimidate you by stating if you leave them they will have you deported due to issues of citizenship and immigration.
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Child Custody Arrangements When Communication Between Parents Breaks Down

Marriage and family relationship breakdown is difficult for everyone, especially for children. Just when they need their parents the most to be able to make good decisions for their future, anger and escalated relationship conflict between the parents can get in the way.

In some cases communication between parents breaks down completely, meaning parents are just unable to put into place the type of child custody arrangements for their children that they need or preventing one parent from seeing the children at all.

If you feel worried about safety, intimidated, or feel that you cannot make decisions equally with your former partner you can get help. Where safety is a concern or where there are allegations of family violence we recommend that you seek legal advice.

At Matthews Folbigg our experienced team of family lawyers is able to help you.

Sometimes the best place to start is to seek some assistance of the Court. At Matthews Folbigg Lawyers we have found that having some child custody Interim Orders in place about the children will assist to help both children and parents. The children are helped because they know when they will definitely be able to spend time with the other parent. The parents are helped because it can reduce the stress of having ongoing negotiations with the other parent about the children which may result in further disagreement and escalated conflict.
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