Domestic violence (or “family violence”, as it is referred to within family law) is currently a major issue throughout Australian society and, as such, the Family Court deals with countless cases involving such allegations.
The Court always takes family violence allegations seriously and, if necessary, will give greater weight to the need to protect the child from any risk of harm than to the benefit to the child of having a meaningful relationship with the alleged perpetrating parent.
As findings of fact and the testing of evidence through cross-examination cannot be made on an interim basis, the Court will habitually err on the side of caution when allegations of family violence are raised.
The Act provides a wide definition of what constitutes “family violence”, which includes coercive or controlling behaviour and physical, emotional, psychological, and financial abuse.
Of course, when these types of allegations are made, the Court will expect to be provided with any available evidence of the other party’s conduct, if possible.
However, it is not uncommon for victims of family violence to be unable to provide much in the way of proof, as such behaviour almost invariably occurs “behind closed doors” and not in the presence of witnesses.
In such cases the Court will then assess each party’s credibility after the testing of their evidence at Trial.
Unfortunately, the time between filing an Initiating Application and Trial itself can in some cases be as long as two years.
If and when the matter reaches Trial and family violence is found to have occurred, this automatically rebuts the initial presumption of Equal Shared Parental Responsibility which, in turn, means the Court is not bound to consider each parent spending equal time (or even substantial and significant time) with the child.
This can accordingly result in the perpetrator having their time and communication with the child significantly curtailed.