Australian Institute of Family Studies 26 July 2012 Family Law and Family Violence Professor the Honourable Nahum Mushin Adjunct Professor of Law Monash University

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

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

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

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.

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

Family Violence defined (FLA s4AB) (cont) Unreasonably denying financial autonomy or financial support Preventing maintenance of connections with family, friends or culture

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?

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

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

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))

Relevance of family violence in property cases (Kennon v Kennon; (1997) FLC , 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, …

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)

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”?

Family law and family violence THANK YOU