No Way To Live – The Impact of Domestic Violence on Property Settlements

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.

 
Women report being coerced into financial decisions that would otherwise result in the breakdown of the marriage.
Women report being forced to sign loan agreements that if not may cause further financial difficulties.
Women report being instructed to hand over financial resources to be controlled and assigned by the controlling partner, for their own protection. 

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

There continues to be a discussion in trying to understand what constitutes as family and domestic violence by courts, service providers and the community.  Some women don’t actually recognise the abuse until well after they have left the situation.  Only after she has left do the insidious acts of abuse, controlling behaviours and complex dynamics of the relationship, become recognised, or acted on, as family violence.

Professor Patricia Easteal commented that ‘the dynamics of violence in the home are complex and often difficult for those on the “outside” to understand’. She noted that family violence cannot be understood as separate incidents:

 

Any one ‘incident’ is in actuality is just a small part of a complex pattern of control and cannot be

adequately understood nor its gravity measured in isolation from that background.

At the centre is disempowerment and degradation.

 

What courts have come to understand but remain distanced to, is that Family violence, by its nature, is often difficult to corroborate and prove.  Both parties contribute to the circumstances of conflict when they disagree, but usually in abusive and violence relationships there is one party who seeks to have control and therefore escalates the conversation to include threats, and behaviour that intimidates the other. 

‘Obtaining corroborative evidence is likely to be very difficult when the violence has occurred over an extended period of time, potential sources of proof may be lost, witnesses (where there were any) may no longer be available, injuries may have faded and the non-physical symptoms of trauma may not be obvious.’ – Australian Institute of Family Studies

 

“In her study of women’s experience of the family law system in the context of family violence, Dr Lesley Laing found that many women reported that they ‘received the strong message not to raise allegations of abuse or violence in the Family Courts’ and felt unable to put their full stories of violence to the court” Evidence Of Family Violence / Difficulties In Giving Evidence.

 

In historical and recent Family Law inquiries there is no clear evidence to support the claim that false allegations of family violence are routinely made to gain an advantage in family law matters.

 

The Human Rights and Equal Opportunity Commission (as it then was) urged ‘caution against accepting this contention uncritically’:

There is no doubt that Family Court proceedings often are accompanied by allegations of domestic violence and the use of protection orders. However, this may reflect the fact that domestic violence often escalates when couples separate. Australian data demonstrate that women are as likely to experience violence by previous partners as by current partners and that it is the time around and after separation which is most dangerous for women.[18]

Research has found that most allegations of family violence, including child abuse, made in the context of family law proceedings are made in good faith and with support for the claims.

 

And so to the impact on property settlement

  1. Family violence cannot be considered by a court unless it is aware of the fact of the violence, and the circumstances. The Risk assessment process is a way in which courts, police, and others who provide services to victims of family violence can identify and respond to family violence.  Understanding the types of conduct that constitute as family violence would facilitate  the inclusion of full particulars of relevant behaviours and appropriate protection orders.   

Side note: Section 117AB of the Family Law Act requires a court to make a costs order against a person who ‘knowingly made a false allegation or statement in the proceedings’.  This section was included to address ‘concerns expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings’.  Conversely, there is no specific provision in the Family Law Act to deal with false denials of family violence.

  

 

 

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