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COMPASSIONATE FAMILY LAW EXPERTS

Violence

Violence

Section 43(1)(ca) of the Family Law Act directs that the “Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to…(ca)  the need to ensure protection from family violence”.

Section 60CC(1) says: “Subject to subsection (5), in determining what is in the child‘s best interests, the court must consider the matters set out in subsections (2) and (3)”.

Section 60CC(2) says the “primary considerations are:

(a)    the benefit to the child of having a meaningful relationship with both of the child‘s parents; and

(b)   the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

Section 60CC(2A) says “In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)”.

See How are parenting issues resolved?

In relation to violence in the context of family law property matters, the majority of the full-court in Kennon (1997) 22 Fam LR 1 said “Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of ‘negative contributions’ which is sometimes referred to in this discussion.”

The majority also said these principles “should only apply to exceptional cases”.