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Before making important decisions regarding family law, you should consult with a member of our legal team in order to understand your legal rights and obligations.
Addressing Domestic Violence in Family Law
The following are some of the ways in which domestic violence is addressed within the family law context:
According to section 16(9) of the Divorce Act as well as section 24(3) and (4) of the Children’s Law Reform Act, violence against a partner or against a child is considered past conduct that is relevant to one’s ability to parent and which is significant in determining issues of custody and access.
According to section 24(3)(f) of the Family Law Act, in determining whether to make an order for exclusive possession, the court shall consider any violence committed by a spouse against the other spouse and/or a child.
Section 46 of the Family Law Act and section 35 of the Children’s Law Reform Act outline that on application, the court may make a restraining order.
Abuse by a partner may also be the basis for a tort action (for example: assault, battery, intentional infliction of mental suffering). These tort claims may be brought within a family law proceeding, as opposed to commencing a separate action.
If damages are awarded against the abuser and he or she does not have any funds, one may be able to receive compensation from the Criminal Injuries Compensation Board.
Confronting Domestic Violence
Domestic violence can sometimes occur as a result of the stress, anger and resentment that can arise from the breakdown of a relationship. For a family that has experienced a history of domestic violence, the chances that a separation will lead to further abuse can be even greater.
Domestic violence can manifest itself in some of the more common or well known types of abusive situations (such as physical abuse), however there are numerous other, lesser known, abusive behaviors that can be considered domestic violence, including, but not limited to:
- Sexual abuse: Whether the parties are married, cohabiting or in any other type of relationship, forcing someone to have sex or to engage in sexual activity of any kind against their will;
- Threats of death, violence or sexual abuse; and,
- Even financial abuse.
Domestic violence against you or your children may amount to a criminal offence and should not be accepted or tolerated. It not only puts you and your children in immediate risk of harm, but can also have long lasting physical, emotional, and psychological effects.
If you are a victim of domestic violence, there may be criminal charges that can be brought against your abuser. In the event that you are assaulted or have been threatened with death, violence or sexual abuse, you should immediately contact the police and remove yourself and any children from the home or the vicinity of the abusive individual.