How will the new amendments to family law impact court decisions in matters where there has been family violence?

The Family Law Act 1975 defines family violence as “violent, threatening or other behavior by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”. (section 4AB)

The Family Law Act sets out a non-exhaustive list of actions that constitute family violence, including assault, stalking, repeated derogatory taunts, causing death or injury to an animal, unreasonably withholding financial support, intentionally damaging property and preventing the family member from making or keeping connections with his or her family, friends or culture.

The Family Law Act codifies the requirement for the Court to take allegations of family violence seriously as follows:

1. Section 67Z of the Act provides that the Court must be notified if a parenting matter involves allegations of family violence.

2. Section 60CC(2)(b) requires that when the Court determines the care arrangements for a child that it must give primary consideration to ensuring that children are protected from being exposed to family violence.

3. The presumption of equal shared parental responsibility for a child does not apply when a parent has engaged in family violence (section 61DA).

4. There is no requirement to mediate before commencing court proceedings relating to children in circumstances where there are allegations of family violence.

There are currently no correlating provisions addressing family violence in the Family Law Act when it comes to division of property following the breakdown of a relationship.

It is evident that violent conduct by one partner against another can have significant and long-term financial consequences for the non-violent partner. Economic repercussions include (but are not limited to):

1. the non-violent partner is often required to flee the relationship with little to no financial resources;

2. the impact of family violence on the emotional wellbeing and/or mental health of the non-violent partner can affect not only their income earning capacity and capacity to retain employment but may also require time-consuming and often expensive therapies and interventions to undo the damage caused by exposure to family violence;

3. the financial impact of family violence on the children who witnessed the family violence is most often born by the non-violent parent.

The Family Law Act does contemplate a property adjustment for some of the consequences of family violence (such as differentials in the incomes of the parties, or the particular vulnerabilities of the non-violent partner including mental health issues), however there is not currently a defined section of the Family Law Act that the court can point to that specifically takes account of family violence when deciding how to divide assets.

It is, and always has been possible to sue to seek compensation for the physical or physiological injury that is inflicted in any circumstances (including in intimate relationships) but such cases are the jurisdiction of the state courts and are not run as part of Family Law proceedings.

Whilst Family Law legislation is currently silent about how to deal with family violence in property cases, there is case law dating back to 1997 (Kennon v Kennon) which judges can turn to. This suggests that family violence may be considered by the Court in property matters when assessing the contributions made by the parties to the relevant assets. In decisions that have followed Kennon, the court has made it clear that in cases of family violence the non-violent partner’s contributions (financial, non-financial and parenting) have been made more arduous, and this should be duly recognized in any property adjustment. The logic is that if you are constantly being subjected to family violence then it is necessarily harder to get yourself to work each day, to maintain your employment, to parent your children and to generally function.

There has been a growing chorus of voices demanding change in how the impact and consequences of family violence are dealt with in Family Law decisions about the division of property. The result has been the Family Law Amendment Bill 2023 (the Bill) which was introduced to the Federal Parliament in September 2023, which  proposes that in each case the court consider the following when determining the parties contributions:

“the effect of any family violence, to which one party to the marriage has subjected the other party, on the current and future circumstances of the other party”.

If the Bill is successful, it will codify the case law that exists and amend the Act to compel Courts to consider the effect of family violence on the current and future circumstances of the party who was subjected to violence. These new developments aim to address serious issues for victims of family violence following a relationship breakdown and recognize countless studies which show that partners and their children who have been exposed to family violence are at significantly greater risk than the rest of the population to poverty, mental health disorders, suicidal ideation and other health risks.  

The Bill remains in draft form at this time and the consultation process will run until December 2023.  The Attorney General Department website suggests that the intention of the amendments:

“means that the financial impact of conduct involving family violence, economic abuse and financial abuse may be considered in the process of determining how property should be divided between the parties. It does not mean that family law courts will punish the conduct, rather that they may account for the impact of the conduct in determining a just and equitable property split”. 

It is unclear whether the proposed amendments will be able to achieve the stated aims of considering family violence in a meaningful way in property disputes that come before the Family Court. Certainly, the financial implications of family violence are significant and well documented, and it is essential that the consequences of family violence be dealt with in the Family Law Act in a meaningful way so that non-violent partners and children are given the best opportunity possible to deal with the impact of the violence that they have been subjected to. The Bill gives at least some hope that the issue of family violence in property is being considered and a path forwarded is being proposed.

If you or someone you know has been a victim of domestic violence, you can contact the National Sexual Assault, Domestic Violence Counselling Service on 1800RESPECT for 24/7 assistance and support.