By Briana Kotzapavlidis

17 May 2016

The Family Court and Federal Circuit Court are the primary decision makers when it comes to parenting matters involving families where domestic violence is an issue. Whilst there have been many complaints in recent times as to how the Courts deal with cases involving family violence, the blame cannot be laid at the feet of Judges alone.

The role of lawyers in such cases is vital. It is the lawyer’s responsibility to ensure that any relevant evidence that parties have regarding alleged family violence is brought to the Court’s attention. It is only when this is achieved that the Judicial Officer hearing your matter can make a decision that best protects your most valuable asset: your children.

In making any decision regarding parenting arrangements, the Judge must ensure “…the best interests of a child as the paramount consideration” (section 60CA of the Family Law Act). How a Judge decides what is in a child’s best interests is set out in the Family Law Act. The Act states that the Court’s primary considerations for determining what would be in the best interests of a child with respect to the time they are to spend with their parents are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (section 60CC(2) of the Family Law Act 1975)

In applying these cornerstone considerations, the Court is required to give greater weight to protecting the child from physical or psychological harm, rather than the child having the benefit of a meaningful relationship with both parents.

In light of the foregoing, it is the responsibility of lawyers to provide the Court with all of the necessary information; thus enabling the Court to make the best decision possible regarding the care arrangements for the child or children. Understandably, a Judge will be cautious if there is currently an Intervention Order in place from a State Court in allowing a parent against whom such an order has been made to spend time with their child. It is the lawyer’s role to look at the factors that gave rise to the Intervention Order, and help set out a path to repairing the damage which may have been caused by family violence in its many forms.

Family violence is broad. It can incorporate economic violence, such as the financially stronger party denying access to funds or credit cards to the financially weaker party. It may also involve verbal abuse, or even emotional or psychological abuse. These forms of abuse are difficult for parties to evidence as they do not leave physical bruises or scars. However, with the right assistance and advice, such cases can be brought to light and dealt with appropriately, in the same way that physical and sexual violence matters are being better handled by police and enforcement agencies.

Sometimes merely recognising and acknowledging that certain behaviours are abusive and inappropriate is the first step in assisting parents caught in the conflict regarding the end of their relationship; and navigating the best way to move forward for the benefit of their children. Again, sound advice regarding such issues early on after the breakdown of a relationship can have a dramatic impact on the outcomes for families; and most importantly, on the children of those relationships.

In the event that you are a victim of domestic violence, we recommend seeking advice regarding your family law matter as soon as possible, in order to assist you in breaking the cycle of violence. We appreciate that seeking advice in these circumstances is difficult and confronting, and it is our responsibility as lawyers to provide you with a safe and secure forum to obtain guidance on how you can protect yourself and your children into the future; physically, emotionally and financially.

It is also vital to obtain prompt advice in the event that allegations of domestic violence are made against you. Seeking legal guidance and support in relation to the manner in which you can communicate with your former partner regarding the care arrangements of your children is vital. The correct initial advice can assist in avoiding escalating tensions. This can also contribute to creating a positive pathway for moving forward with future parenting arrangements where both parties, and most importantly, the children, can feel comfortable.

 

For more information please contact Briana Kotzapavlidis or a member of our Family Law Team.

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