The Court will only hear child related proceedings if an applicant has attended family dispute resolution and obtained a certificate. A certificate is not required where child abuse or family violence is involved.
As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.
State Central Authority & Papastavrou  FamCA 1120
If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned. This is a high standard to meet, and will only apply in exceptional circumstances.
In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.
During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.
The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.
In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.
If there has been violence in the relationship, this can affect the division of property. This is due to the possibility that the effects of violence may have limited the ability of a party to contribute.
Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the ‘additional factors’.
Australian family law and the family law courts recognize the close connection between family breakdown and family violence, and the resultant impact this has on victims of family violence – both adults and children.
Often when we hear references to family violence, our minds instinctually think of ‘violence’ in the traditional sense and behaviors such as:
- Physical abuse (such as hitting or pushing someone);
- Sexual abuse; or
- Emotional and/or psychological abuse (such as yelling or insulting someone, undermining their self-worth or humiliating a person).
Australian family law legislation provides a wide interpretation and definition of the term ‘family violence’ and The Family Law Act and the family law courts recognize financial abuse (or economic abuse) as a form of family and domestic violence.
Financial abuse (or economic abuse) occurs when you are unreasonably denied financial autonomy that you would otherwise have had, and are denied any control over your personal and/or the relationship’s finances. In many cases, this type of abuse is subtle and not obvious, and can be difficult to recognize. Financial abuse can also manifest slowly over the course of a relationship – steadily ‘creeping up’ until it becomes ‘the new normal’.
Some common examples of financial abuse include (but are not limited to):
- Being denied financial autonomy and control of your own finances (e.g. a spouse/domestic partner taking complete control of the relationship’s money and finances).
- Being provided with inadequate funds and having money withheld to meet your (and your children’s) reasonable living expenses. This is especially the case in circumstances where you are entirely or partially dependent on your spouse/domestic partner for that financial support.
- Being constantly monitored, harassed and questioned about what you s pend money on.
- Having access to your bank accounts and credit/debit cards restricted or blocked.
- Being forbidden to work and earn income of your own.
- Having your pay taken from you and your access to it restricted.
- Being made to feel that you are irresponsible and incapable of handling money.
- Your spouse/domestic partner refusing to work or contribute to household expenses.
- Your spouse/domestic partner incurring debts in your name (this is related to identity theft).
- Being forced to sign financial documents (such as mortgage documents or personal loans) without being allowed to read or consider them.
Financial abuse is often accompanied by other forms of family violence, such as verbal abuse (e.g. angry outbursts and threats of violence), as well as physical abuse. Experiencing financial abuse can be just as damaging as physical abuse, and the affected family members often aren’t aware of how to seek and access support.
Our accredited family law specialists are available to assist in matters involving family violence and financial abuse, along with all other facets of your family law matter. If you would like to speak to one of our family law specialists about any of your family law issues, please contact us on 1300 635 529 or email email@example.com for a free telephone consultation.
There may be circumstances where you may require an injunction or a restraining order. This is a court order to stop someone from doing something which may disadvantage you, such as stopping your spouse/partner from withdrawing savings out of a bank account or taking the children overseas or moving the children’s residence or school without your consent.
Goode & Goode  FLC 93-286
This is a case illustrating the importance of having evidence if alleging that acts of family violence have occurred.
A husband and wife separated after ten years of marriage in 2006. The children, ages 2 and 8 lived with their mother and spent time with their father alternating weekends. The father argued that the mother was preventing the children from spending additional time with him, while the mother argued that the parties had agreed to this arrangement. The mother sought an order finalizing this alleged arrangement, while the father sought an order for an equal share care arrangement
The mother alleged that the father had engaged in family violence during their relationship. Normally, in custody disputes, the judge must apply a rebuttable presumption that it is best for parents to have equal shared parental responsibility. However, a major exception to this presumption is where family violence has occurred.
In this case, the judge was unable to conclude that the allegations of family violence were true. Because there was a dispute as to whether the violence occurred, the judge was conflicted as to whether the aforementioned presumption should apply. The trial judge ultimately concluded that the allegations alone did not satisfy that violence had occurred. The mother lacked sufficient evidence to prove any acts of violence, and her words alone were not enough for the judge to be satisfied on reasonable grounds that violence had occurred.
The issue of alleged violence failed to make a major impact on the outcome of the case; the court concluded that the presumption should not apply in cases where there is even a dispute regarding whether family violence occurred. However, this case still illustrates the principal that when alleging family violence, you must be prepared to show evidence that allows the judge to make a finding that family violence did in fact occur.
a finding that family violence did in fact occur. The trial court issued an order allowing the children to live with the mother, but spend time with the father on alternating weekends, as well as Monday and Tuesday evenings, and on school holidays. Had there truly been a history of family violence, it would not be safe or appropriate for the children to spend that much time unsupervised with their father.
Therefore, if there is a history of family violence in your situation, be prepared to put on evidence that allows the judge to agree with your allegation.