The Effect Domestic Violence has on Family Law Proceedings
Trigger Warning: Domestic Violence.
Family Violence, specifically domestic violence is an issue that can affect everyone in a family. Domestic violence can come in different forms, not just physically. All forms of family violence are unacceptable, including during the breakdown of a relationship. The Family Court of Western Australia takes domestic violence cases seriously and aims to do what it can to protect people and children from those perpetrating domestic violence.
Family Violence is defined in section 4AB of the Family Law Act 1975 (Cth). This can include 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. This can be physical, emotional, sexual or psychological. Behaviours that constitute family violence include, assault, sexual assault, limiting freedoms, financial abuse or intentionally damaging or destroying property. In Family Law, family violence also occurs when a child is exposed to any of these behaviours. The effect of family violence on children are significant. The Court will consider the best interests of the children involved. This is a priority of the Court, giving greater weight to protecting children from harm.
Exemptions and Special Arrangements for Court Attendance
Part of the Family Law process requires parties to attend Family Dispute Resolution (FDR) before applying for Court Orders. If there is family violence involved in a matter, you do not have to attend FDR. You can apply for an exemption by completing the required form.
If there is Family Violence in your matter, you will be required to notify the Court. This is done by completing a Form 4 Notice of Child Abuse and Family Violence (or Risk). Once this is filed and served on the other party, the court will consider evidence of family violence when making interim or final Orders. The party accused of family violence has the opportunity to present evidence rebutting the claim.
The Court takes account the risk of children being exposed to family violence even if it is not perpetrated towards them.
In most Court cases, both parties and their legal representatives are required to attend. For parties that have experienced family violence and there are concerns about their safety, the Court can make special arrangements for their attendance, including attendance via telephone, video-link or having the parties attend the Court in separate areas. Specific security can also be arranged. It is important to express your concerns in advance so the Family Court has time to process your request.
Presumption of Equal Shared Parental Responsibility
There is a presumption that it is in the child’s best interests to make orders providing for both parents to have equal shared parental responsibility until the child turns 18. This allows them to make long-term decisions for the child relating to education, religion, health, name changes and living arrangements.
This presumption does not apply if there is family violence involved. The court is then free to make orders on whether sole parental or equal shared parental responsibility would be in the child’s best interest. It is important to note that equal shared parental responsibility does not mean equal time with each parent.
If family violence is involved in your life and you are wanting advice in relation to a family law matter, please do not hesitate to contact our offices on (08) 6559 7480.