How Does Domestic Violence Change The Interpretation Of The Law?

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How Does Domestic Violence Change The Interpretation Of The Law?

29 January 2016
 Categories: , Blog

Domestic violence is a vice that is frowned upon across the globe.  

The occurrence of domestic violence in a family law dispute can have a significant impact on the manner in which various aspects of family law are interpreted in the particular context. 

This article discusses a few ways through which the occurrence of violence can alter the interpretation of the law. This information is especially beneficial to those studying to become family law practitioners.

Domestic Violence And The Presumption Of Shared Responsibility

Under Australian family law, a child's parents are presumed to have an equal say when major decisions that will affect their children lives are to be made. Examples of these decisions include matters related to schooling, the children's health, and matters of religion.

However, the occurrence of violence is a deal-breaker in the content of shared responsibility. This is because the presumption of shared responsibility ceases to apply immediately the blows and kicks land.

Consequently, Australian courts will often grant a parent who has suffered violence full responsibility for major decisions in the lives of their children.

Violence And The Requirement For Mediation

Australian laws require warring parties in a family law dispute to undertake pre-action procedures aimed at settling a dispute, or aimed at reducing the number of contentious issues in the dispute. Pre-action procedures are often guided by a mediator or a related dispute resolution practitioner. The practitioner issues a certificate that will be required when filing a case with the family court. 

Again, the occurrence of domestic violence invalidates this requirement. Therefore, victims of violence can go straight to court if they have sufficient evidence. This helps to prevent the "delay of justice" for partners who may have suffered violence.

Domestic Violence And Property Settlement

Under normal circumstances, the settlement of property in a family law case is done in accordance with pre-determined parameters. These parameters include the contribution made by each spouse and their individual needs. A spouse's individual needs will depend on various factors including their age, health condition and their employment status among several others.

If a spouse suffered domestic violence during the period in which the property/assets to be settled were acquired, their contribution to the acquisition of these assets is deemed more valuable. This is because they're considered to have acquired such assets under extreme difficulty. This helps to explain why property settlement will often favour spouses who have had the unpleasant experience that is domestic violence.