July 5, 2017

Are you affected by Family Violence?

On 7th June 2012 changes came into effect in how matters dealing with allegations of child abuse or family violence are now dealt with by the Courts.

Family Violence is defined as:

violent, threatening or other behaviour by a person that causes or coerces a member of the family to be fearful.

The following are some illustrations of behaviour that may be considered as family violence:

• An assault;
• A sexual assault or other sexually abusive behaviour;
• Stalking
• Repeated derogatory taunts;
• Intentionally destroying a person’s property;
• Intentionally causing death or injury to an animal;
• Unreasonably denying a family member the financial autonomy that he or she    would otherwise have had;
• Unreasonably withholding financial support needed to meet the reasonable    living expenses the family member or the family member’s child at a time    when that person is entirely or predominately dependent on that person for    financial support;
• Preventing the family member from making or keeping connections with his or    her family, friends or culture;
• Unlawfully depriving a family member of their liberty;

Child Abuse is defined as:

• An assault, including a sexual assault of a child;
• A person involving a child in a sexual activity in which the child is used ,    directly or indirectly, as a sexual object and there is unequal power in the    relationship between that person and the child;
• Causing the child to suffer serious psychological harm, including (but not    limited to) when that harm is caused by the child being subjected to or    exposed to family violence;
• Serious neglect of the child.

A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Examples include:

• Overhearing threats of death or personal injury by one member of the child’s    family to another member of the family;
• Seeing or hearing an assault on one family member by another member of    the family;
• Comforting or providing assistance to a member of the child’s family who    has been assaulted by another member of the family;
• Cleaning up a site after a family member has intentionally damaged property    of another family member
• Being present when police or ambulance officers attend an incident involving    the assault of a family member.

These illustrations are not exhaustive and are examples of conduct that that ‘may’ be defined as family violence or exposure to family violence by the Court.

It must be noted that these illustrations on their own are not sufficient to determine that family violence has occurred. Before the Court will determine whether family violence exists in a relationship it will examine whether the conduct of the party overall is violent or threatening and causes another family member to feel coerced, controlled or fearful.

Social science literature on coercive and controlling behaviour suggest it reflects a relationship where there is ongoing subjection to one family member rather than isolated incidents of feeling compelled to do something as a result of a violent act or threat [1].

Coercive and controlling behaviour is distinguished from conflict instigated violence. Conflict instigated violence is described as violence that takes place when an unresolved disagreement spirals into a violent incident, but the violence is not part of a larger pattern of coercive control. This type of violence typically involves intimate partners losing control, rather than using violence to assert control [2].

Where a party to proceedings is asking the Court to make Orders based on the abuse of a child or family violence then that party must file a Notice of Risk of Abuse or Family Violence (‘the notice’) in Court detailing the acts that constitute the abuse or family violence.

When the notice is received by the Court and the notice contains allegations of the abuse of a child the Court is obliged to notify the relevant child welfare authority of the allegations.

The Court must also act promptly in dealing with a matter that alleges abuse of a child or family violence and consider what interim or procedural orders (if any) should be made to enable appropriate evidence about the allegations to be obtained as expeditiously as possible and to make appropriate orders that will protect the child or one of the parties to the proceedings and deal with the issues raised by the allegations in the notice as expeditiously as possible.

If you have been affected by family violence or have been accused of family violence and require advice or assistance in relation to your children or other family law related matters contact Websters Lawyers to arrange to meet with an experienced family lawyer in Adelaide for an obligation free first consultation.

Websters Lawyers have specialist family lawyers with the skill and experience that you need to ensure that you secure the best outcome and to provide the right advice at a time you need it.

1. Professor Patrick Parkinson, The 2011 Family Violence Amendments: What     Difference Will They Make? The Australian Family Lawyer (2011) Law Council     of Australia Vol 22 No 2 page 5.

2. Ibid, pages 6-8.