Consistency and Understanding the Key for Courts Dealing with Family Violence

In August 2016, TC Beirne School of Law and the Australasian Institute of Judicial Administration released (http://www.lawyersweekly.com.au/wig-chamber/19479-judges-draw-on-new-guide-for-family-and-domestic-violence) the initial version of their ‘bench book’ for Courts across Australia dealing with family violence. A bench book is a guide to Judges and Magistrates to assist them in applying risk assessment systems, case law, and making suggestions in coming to decisions.

It is a difficult task for lawyer, judges and people caught in the family violence systems to ensure they can assess situations with the impartiality, reality-testing and credibility required of them, and the guide aims to simplify this process for the judiciary, resulting in a more consistent framework that better protects those in need, and better recognises when people are not being genuine in their desire for, or opposition to, an order being made.

Clients will often speak of a Judge or Magistrates having taken a view about them personally and not treating them, in their view, fairly. This guide should help in ensuring that there is a consistent and clear approach and restore damaged confidence in aspects of the system. 

Of course our lawyers (http://www.nffamilylawyersmelbourne.com.au)  have many decades of experience dealing with family violence matters and providing clients with realistic and sensible advice in obtaining, opposing, or renewing orders and if you do have a concern about your situation, we encourage you to call us to discuss your situation. 

We are available on 03 9614 7111 or by email on melbourne@nevettford.com.au.

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How to Speak when your Family Lawyer is Listening

The Australian Institute for Family Studies (“AIFS”) has just recently released its report (https://aifs.gov.au/publications/evaluation-2012-family-violence-amendments)  into the 2012 changes to the Family Law system that brought in, amongst other things, more of a focus on family violence in the family law area, as well as ‘screening’ for family violence in all cases.

Despite these changes, a significant proportion of those involved in family law disputes, or even in families that never enter the formal family law system of mediation, lawyers and Court, did not report family violence or safety concerns that they held.

In 2014, it was found that 38% of parents holding either family violence or safety concerns did not report those concerns to lawyers or Court officers; a very considerable 46% of parents involved in family dispute resolution / mediation did not report their safety or family violence concerns.

This type of information is sure to give family lawyers pause and should cause them to rethink how and how often they are asking their clients whether they have safety concerns.

This is a very real and concerning issue for lawyers, as a failure for a client to disclose that they are fearful, and potentially intimidated, may compromise a client’s ability to give instructions or make good decisions.

For clients, this revelation opens a discussion of a common practice I see day to day – where clients decide that they are going to hold back some information from their lawyers for one reason or another.

In situations where family violence has been a factor or concern, this is often out of embarrassment, shyness, a feeling of some sort of shame at having lived through such a situation, or refusal to believe that this type of thing would happen to you.

This affects people coming out of relationship no matter their gender.

Whilst these are understandable reactions, withholding information from your lawyer puts you at a disadvantage because you cannot prepare yourself, or take remedial action to address the issues that may be of concern.

Your lawyer is left fighting with one arm tied behind their back.

Additionally, if actions are taken without these concerning issues being raised at an early stage, Courts and lawyers will often regard later disclosures by you with a great deal of scepticism, thinking that the information is only coming out at a stage when it can be used to delay proceedings rather than for a genuine safety reason.

Whilst it may be confronting and difficult to raise issues of family violence or abuse from a relationship, your lawyer will have heard these issues, and unfortunately much worse, in their career, and you should find a lawyer with whom you feel comfortable raising and discussing these issues so you are prepared and on the front foot.

Call our senior lawyer Richard Hamilton or accredited specialised Elizabeth Hall on 03 9614 7111 or email Melbourne@nevettford.com.au to discuss your situation in an obligation-free call and get a better understanding of how the family law would take into account your particular circumstances and history.

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Deane & Deane 2014 FamCA 869

A couple had been married for several years and had two daughter aged 7 and 3 years at the time of the hearing.  During one year the father’s own mother died and the father did not enjoy the Christmas period as he felt that his grief had not been adequately recognised, that there was no sexual intimacy with his wife, and that he would not be missed if he left the family.  The wife subsequently made allegations about three types of incident over the holiday period: that the father had thrown one daughter against a wall, that the husband had raped the wife, and that there was sexual abuse of the children.  Criminal charges did not proceed due to lack of evidence.  The parents separated soon after, with the father maintaining contact with his children.

Allegations by both children about sexualised behaviour by the father continued.  Allegations included that the father was naked in the bedroom of one daughter, and that the father performed an unusual exercise involving movement of his groin.

The judge found that too many concerning factors had been raised.  The judge ruled that the father’s access with his children should be supervised, but that evidence from the father’s own family had been too partisan for the judge to be confident that their supervision would be objective.  The judge ruled that the risk to the children was an unacceptable risk and that indefinite or ongoing supervision was required.

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Can Domestic Violence Increase My Family Law Property Settlement?

The short answer is yes.

In circumstances where the contributions of a party are made more “onerous” by the violence of the other party, the Courts may give more weight to that circumstance.

For example, if one party is subjected to verbal or physical abuse which causes difficulties for that party in carrying out their “role in the relationship”, this may be taken into account.  As well as being relevant to the party’s present health and their likely future employability, that party may get an extra portion of the property.

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