Family Law

 

Family Law

 

Family Law (Part I)

* Following essay was written during the family law course. Can't gurantee 100% accuracy.


Domestic violence

In the application, you and your children would be the aggrieved parties. If you do instruct me to make such an application, I will need to draft a supporting affidavit, based upon your instructions, setting out the instances of domestic violence you say occurred in your relationship:

  • the two instances where Matthew physically assaulted you; he punched you in the stomach and the side of your head then spat on you (physical abuse)
  • how he exercised controlling behaviour over you such as isolating you from your family and friends (social abuse): Labine v Labine [2012];[4] Lyons v Adder [2014][5]
  • limiting the amount of money he provided to you for housekeeping (economic abuse)
  • how he destroyed the television in front of the children (psychological abuse)[6]

The court will not grant custody to a parent if they would expose the child to an unacceptable risk of abuse: M v M (2000).[7] We would also highlight the fact that you and the children are sharing a room at your parents’ home and you are unable to work at present.  Additionally, you have little funds available to you.

As explained in our conference, I suggested there may be a need to inquire further into the circumstances of Alex’s broken arm.  This might be as a result of physical violence, or at least evidence of Matthew, and perhaps his parents’, inability to properly supervise the children while in their care: Amador and Amador [2009].[8]

Your brother, Josh, may want to consider a similar course of action.  I would need to get instructions from you to include him on your application as another aggrieved party. He could be included under your application as your relative, refer: section 24[9] and 25[10] of the DFVPA.

The Court considers your application on the balance of probabilities. We must prove that there is a relevant relationship between you, your children and your brother to Matthew.  We must also prove that Matthew committed domestic violence and that the making of the order is necessary or desirable to afford the aggrieved parties protection.[11] The orders we would be seeking to be made by the court would include that:

  • ‘Matthew has good behaviour and not commits domestic violence.’

Given your current living arrangements, I would also suggest you consider seeking an ‘ouster’ order.  All States and Territories give the court power to order that the violent person be excluded from particular property, including the family home. The court may impose a condition on Matthew under section 63 (1):

  • ‘Matthew is to leave the family home and provide you and the children with exclusive access to the home’, and
  • ‘Matthew is to do anything needed to maintain possession of the family home.’

As we discussed at some length during our conference, the latter order we are asking for the court to make may be resisted by Matthew, given he was purchasing the house prior to commencing a relationship with you. But by moving in with your parents, the children are experiencing disruptions to their lives.

The Court should make a temporary protection order as your affidavit, and if so instructed Josh’s affidavit once drafted, as it would satisfy the court that there is a sufficient and appropriate basis for granting the order on a temporary basis.[12]


 

[1] The definition of family violence is also stated in section 4AB (1) and section 4AB (2) of the  Family Law Act.

[2] Domestic and Family Violence Protection Act 2012 (Qld) s 8 (1).

[3] Domestic and Family Violence Protection Act 2012 (Qld), s 37.

[4] Labine v Labine [2012] FMCAfam 1398.

[5] Lyons v Adder [2014] FamCAFC 6.

[6] Domestic and Family Violence Protection Act 2012 (Qld), s 8 (1).

[7] M v M (2000) FLC 93-006. There are tests: 1) Is there a risk of abuse occurring if custody or access   is granted? 2) What is the magnitude of that risk? 3) Would granting custody expose the child to an unacceptable risk? The standard of proof is on looking at the balance of probabilities and assuming a higher standard as outlined in Briginshaw v Briginshaw [1938] HCA 34.

[8] Amador and Amador [2009] FamCAFC 196.

[9] Domestic and Family Violence Protection Act 2012 (Qld), s 24: Who can a domestic violence order protect.

[10] Domestic and Family Violence Protection Act 2012 (Qld), s 25: Who can apply for a protection order.

[11] Domestic and Family Violence Protection Act 2012 (Qld), s 37(1).

[12] Domestic and Family Violence Protection Act 2012 (Qld), s 46.

 


 

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