There is a growing argument that violence should be acknowledged by the Court in exceptional and general circumstances.
Domestic abuse impacts on the capacity and confidence of women in relationships where their non financial contributions, unpaid work and value is not given consideration. Women who’ve undertaken the obligations of marriage, the challenges of motherhood and absorbed the mental load have reported how abusive partners dismissed the impact of these elements that seep into daily life of avoiding difficult conversations that express their rights to a live free from fear of doing, saying or being what they want in the name of ‘harmony at home’.
Women who are abused emotionally and psychologically have their potential and capacity to earn an income significantly reduced due to the controlling behaviour of their partner. They find themselves undertaking ‘chores’ to help their partner relax, to keep the peace and to please instead of encouraging him to maintain his independence. Women will sacrifice their time, energy and resources so as to ‘not worry’ or ‘burden’ what is a shared issue out of fear that the reaction or response will result in the icy cold silence or the hot and angry insult of incompetence.
Where this is an attitude by partner to restrict the choices and opportunities of women, a suggestion as to their capacity or placing primary care expectations upon them by declaring their job or work responsibility takes priority over the employment of or engagement by a women – without discussion or exploration of alternative care arrangements including after school or casual carers being employed, there is abuse.
Family Courts still have a way to go, when it comes to encouraging women to raise allegations of abuse, according to the report No Way to Live, released by the Minister for Women, Jodi McKay. It reports in details the experiences of Women who have been forced to negotiate the family law system with the complexity of domestic violence which was launched on June 23 and reported in Lawyers Weekly.
The question is often asked, should the conduct, behaviour and attitudes of those in the relationship or during the marriage, be relevant when determining property interests?
Until recently, violence and its effects on the family have been downplayed or even ignored in divorce proceedings.
Women who took part in the study reported that their claims of abuse were often viewed as fabrications and the report backed the recommendations of the Family Law Council that the definition of family violence should include a broader range of threatening and controlling behaviours.
The report raises important issues as to the financial binds, obligations and restrictions at the time of separation, placed on one party if the other does not agree. It demonstrates the weaponisation of systems and institutions and the abuse of power when agreements to financially separate can’t be reached. Currently, it is the case that the pool of assets determined at separation then becomes the battle of percentages and re-examination of the behaviour of each partner during the marriage rather that the dissolution of the resources that are left.
The available cash is often distributed without consent, assessment, agreement or arrangement and is left to the adjudication of a court judge based on the four principles of property settlement.
In cases of domestic abuse, women are already at a financial disadvantage and emotionally drained and many report feeling impeded by their partners lack of support and opinions.
A number of submissions to the Family Violence – A National Legal Response (ALRC Report 114) inquiry highlighted the difficulties that victims of family violence face when disclosing family violence to courts or other service providers and when providing evidence of family violence to courts. A victim of family violence may hide the abuse due to feelings of shame, low self esteem or a sense that he or she, as the victim, is responsible for the violence. A victim may feel that he or she will not be believed. A victim may hope that the violence will stop, or might believe that violence is a normal part of relationships. Because of the family violence, a victim may feel powerless and unable to trust others, or fear further violence if caught disclosing it