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Family law and family violence

Family law and family violence

Kelly Leydon, Principal Lawyer, Gordon Legal

Family law matters can be complicated and there are many issues that may need to be taken into account before parties can agree on parenting arrangements for their children or a property settlement.

At times there might be issues in a parties’ relationship that also affect the settlement of their matter, such as family violence. Sometimes the popular understanding of certain concepts such as ‘domestic violence’ may be different to how it is defined in law. It is important to understand how the law defines these concepts, because the law is what will shape the outcome of any family law dispute.

‘Domestic violence’ which is now known as family violence is an example of one of these concepts. Family violence can take many forms including physical, sexual, emotional or psychological abuse. Family violence does not always involve violent acts or threats of physical injury. Family violence is defined under the Commonwealth Family Law Act 1975 and being aware of the different forms of family violence is important in understanding your rights in family law.

What is ‘family violence’ according to family law?

Family violence is defined at s4AB of the Act as ‘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.’

The Act provides examples of behaviours that may constitute family violence. The behaviours that were listed when the Act was first introduced in 1975 were:

  • assault (including sexual assault or other sexually abusive behaviour), or
  • stalking, or
  • repeated derogatory taunts, or
  • intentionally damaging or destroying property, or
  • intentionally causing death or injury to an animal, or
  • unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

The Act confirms that abuse of a child may include serious psychological harm from the child being subjected to, or exposed to, family violence.

Coercive control

In 2011, the definition of family violence was expanded to include coercive and controlling behaviour. Coercive control is a common form of family violence. According to Professor Evan Stark coercive control is a pattern of domination that includes tactics to isolate, degrade, exploit and control’ a person, ‘as well as to frighten them or hurt them physically’.[1]

The coercive and controlling behaviours that are included as part of the definition of family violence under the Family Law Act 1975 are:

  • unreasonably denying the family member the financial autonomy that he or she would otherwise have had, or
  • unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, or
  • preventing the family member from making or keeping connections with his or her family, friends or culture.

Coercive and controlling behaviours are not always accompanied by physical violence or threats, but over time these behaviours rob victim-survivors of their autonomy and independence.[2]

Recently, there has been efforts across Australia to criminalise coercive control, but at the moment only Tasmania has criminal laws directly addressing coercive and controlling behaviours.

Navigating the legal complexity

Family law can be very complex. If one of the parties or the children are subjected to family violence, it can make reaching settlement agreements even more difficult, stressful and daunting. It is not unusual for a person to not realise they are a victim of family violence especially if they have been subjected to coercive controlling behaviours by an intimate partner.

Seeking legal advice from a lawyer experienced in family violence in all its forms can provide clear advice and legal guidance. This includes advice on the law as it relates to the best interests of children and property settlements and can help to alleviate the stress and uncertainty that often arises after separation.

[1] https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Familyviolence/Report/section?id=committees%2Freportrep%2F024577%2F75463, para 4.7

[2] http://www.crimeprevention.nsw.gov.au/domesticviolence/Documents/domestic-violence/discussion-paper-coercive-control.pdf, page 7, para 2.1

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