A husband installed spyware onto the wife’s phone and computer, monitoring her daily activities and conversations. The extreme control (and other factors) eventually led her to leave the relationship and her very young son, due to fears for her and her sons’ safety, if she took the child with her. I believe, at first blush this would appear to the Court (and others), that this mother does not have her child’s best interests in the forefront of her life, by leaving him behind when she separated and therefore her parenting capacity is potentially compromised. What are some useful tips and resources to assist when confronted with the ever increasing issue of family violence (in its various forms) in family law proceedings?
There is no single family violence legislation in Australia. The Federal legislation definition of ‘family violence‘ is found in section 4AB Family Law Act 1975 (Cth) and includes assault and other conduct, such as; repeated derogatory taunts, controlling finances so the other party doesn’t have financial autonomy, withholding financial support and controlling who the other party will keep in contact with (family and friends). As you already know, there is State based legislation in place, such as the Crimes (Domestic and Personal Violence) Act 2007, which is relied upon, in the criminal courts, to obtain personal protection orders (AVO, ADVO).
In the above facts, further investigation and insight into the Wife’s decisions would be required to put before the Court so the Court has a full understanding; family violence has the ability to impact on a parties apparent parenting skills and there may be underlying reasons for the apparent incapacity. This requires taking the time to review the party’s (Wife’s) decision (to leave without the child) in light of all the circumstances as a whole, in an underlying environment of family violence.
As family law practitioners, we are aware of the increasing number of cases, with wide varieties of conduct, that we are asked to assist in, that involve alleged family violence. We need to navigate our clients through the court system as well as present their case, in a way that demonstrates the complex and diverse series of facts, including the range of behaviours which may demonstrate ‘significant variables‘ that may be useful to identify domestic and family violence to assist the judicial officers develop consistent and effective responses. These range of variable behaviours must be considered as a whole in order to understand the victim’s experience of violence, and to respond appropriately to the risk of future violence and hold the alleged perpetrator accountable.
There is no ‘one size fits all’ when it comes to domestic and family violence, however, there needs to be a common understanding of their scope, by both practitioners and judicial officers for efficient representation and decision making.
Myths About Domestic & Family Violence:
- A ‘victim‘ is able to leave the abusive relationship
- Once parties separate the DV and family violence stop
- Physical violence is more serious than other forms of ‘violence’ (i.e. controlling behaviours etc)
- DV and family violence only occurs in low socio-economic groups
- DV and family violence does not include sexual assault
- Women often make unsubstantiated claims or exaggerate in order to try to obtain a tactical advantage in proceedings.
- Both parties are responsible for DV and family violence.
- Drugs and/or alcohol abuse cause DV and family violence.
Factors Affecting Risk
- Higher risk of death or injury where there was violence within the past 12 months
- Physical violence outside of the relationship
- Misuse of alcohol or drugs
- Intense jealousy of the ‘victim‘
- High level of control over the ‘victims‘ daily life and activities
- Mental health risks factors for ‘victims‘ which may lead some to self harm
Where domestic and family violence has occurred during the relationship, it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim, or to punish the victim for leaving the relationship. The NSW Domestic Violence Death Review Team Annual Report 2012-2013 recorded that in two-thirds of all intimate partner homicides where a female was killed, the victim and perpetrator had either recently separated or were in the process of separating, concluding that the period directly after separation may be high-risk for women in relationships involving domestic and family violence 
Recently, the National Domestic and Family Violence Bench book has been released for both the Bench and practitioners use to assist in DV and family violence cases, for greater, understanding, consistency and efficiency: (http://www.dfvbenchbook.aija.org.au/) 
If you are in need of a practical and emotionally intelligent family law barrister and mediator (including IVF and Surrogacy), contact Louise at (02) 9336 5399 or email@example.com
Sign up to Louise’s blogs on family law (parenting, IVF, Surrogacy and property) at http://www.sydneybarrister.net.au. You will receive it directly into your inbox and you’ll never miss a post!