www.law.monash.edu
Australian Institute of Family Studies
26 July 2012
Family Law and Family Violence
Professor the Honourable Nahum Mushin
Adjunct Professor of Law
Monash University
www.law.monash.edu
Outline
• Family Court’s parenting jurisdiction
• Definition of family violence
• Relevance of family violence in
parenting cases
• Reform in parenting law
• Family Court’s property jurisdiction
• Relevance of family violence in property
cases
• Reform in property law
www.law.monash.edu
Family Court’s parenting jurisdiction
• Child’s best interests paramount – Family Law
Act 1975 (FLA) s60CA
• Emphasis on child’s rights and parents’
responsibilities (FLA s60B)
• Presumption of shared parental responsibility
(FLA s61DA)
– Rebuttable if not in child’s best interests or family
violence or child abuse
– Emphasis on family violence
www.law.monash.edu
Family Court’s parenting jurisdiction (cont)
• If equal shared parental responsibility, Court is
required to consider equal shared time (FLA
s65DAA)
• If not equal shared time then substantial and
significant time (ibid.)
• If neither of the above or not equal shared
parental responsibility, Court is at large
www.law.monash.edu
Family Violence defined (FLA s4AB)
(1) For the purposes of this Act, family
violence means 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.
www.law.monash.edu
Family Violence defined (FLA s4AB) (cont)
Family violence includes (FLA s4AB(2):
• Physical violence
• Psychological or emotional violence
• Verbal violence
• Deprivation of liberty
• Intentionally damaging or destroying property
• Intentionally injuring or killing an animal
www.law.monash.edu
Family Violence defined (FLA s4AB) (cont)
• Unreasonably denying financial autonomy or
financial support
• Preventing maintenance of connections with
family, friends or culture
www.law.monash.edu
Exposing child to family violence
(3) For the purposes of this Act, a child is
exposed to family violence if the child sees or
hears family violence or otherwise experiences
the effects of family violence.
(FLA s61DAA(3))
•Might a child be “exposed to family violence”
even if he/she was nowhere near the perpetration
at the time?
www.law.monash.edu
Relevance of family violence in parenting
cases
• Family violence and exposure of a child to
family violence (including abuse) is the most
important single issue in parenting cases
• Its significance must be considered on a
case by case basis
• No matter the degree of family violence, the
question of the perpetrator as a role model
for the child is vital
www.law.monash.edu
Possible parenting reforms
• Equal shared parental responsibility
• Consequential requirement to consider equal
shared time
– expectations
– Is the significant matter the proportion of time or
the relationship/bond between parent and child?
• Recent family violence amendments, of which
we should be proud, have gone some way
towards achieving better balance
www.law.monash.edu
Family Court’s property jurisdiction
Four step process:
1.Determine the pool of assets
2.Contribution (FLA s79(4)(a)-(c))
1. Financial
2. Non-financial
3. Home maker and parent
3.Future factors (FLA s79(4)(e) and s75(2))
4.Just and equitable (FLA s79(2))
www.law.monash.edu
Relevance of family violence in
property cases
(Kennon v Kennon; (1997) FLC 92-757, p.84,294)
Put shortly, our view is that where there is a course
of violent conduct by one party towards the other
during the marriage which is demonstrated to have
had a significant adverse impact upon that party's
contributions to the marriage, or, …
www.law.monash.edu
Relevance of family violence in
property cases (cont)
… put the other way, to have made his or
her contributions significantly more
arduous than they ought to have been, that
is a fact which a trial judge is entitled to
take into account in assessing the parties'
respective contributions within s 79. (my
emphases)
www.law.monash.edu
Possible property reform
• Floodgates
• “Course of conduct” and “significant
adverse impact”
• Each case must be decided on its own
facts – general rules make for problems
• One incident of violence can be decisive
• Should it be –
– “conduct”?
– “relevant impact” or “impact”?
www.law.monash.edu
Family law and family violence
THANK YOU