At a Glance
- Family courts consider family violence a highly significant factor in parenting decisions
- Evidence of domestic violence can significantly influence property settlement outcomes
- The Family Law Act 1975 (Cth) recognises patterns of abusive behaviour, not just isolated incidents
- Safety of children and the victim-survivor is paramount in court deliberations
- Legal remedies such as intervention orders and supervised contact may be issued to protect affected parties
How Domestic Violence Influences Parenting Decisions
When determining parenting arrangements after separation, courts operate under the presumption that it is in a child’s best interests to have meaningful relationships with both parents—unless family violence or child abuse has occurred. This crucial exception reflects growing awareness of the long-term harm domestic violence inflicts on children, even when they are not direct targets.
Under Section 60CC of the Family Law Act 1975 (Cth), judges must consider several factors, including the need to protect the child from physical or psychological harm and the appropriateness of each parent’s willingness to facilitate a relationship with the other. Evidence of coercive control, intimidation, or past violence often weighs heavily. In recent years, courts have increasingly recognised non-physical forms of family violence—such as emotional manipulation and economic control—particularly where such conduct undermines a child’s sense of safety and emotional security.
For example, courts have refused to grant unsupervised contact where a parent has a history of physical violence and controlling behaviour.
In such cases, the court has found that the parent’s conduct posed an ongoing risk to the child’s emotional safety, rendering unsupervised contact inappropriate, and has emphasised that the child’s emotional wellbeing must take precedence over any presumption of equal parenting time.
Property Settlements and the Shadow of Abuse
While property settlements are primarily based on financial contributions, future needs, and practical considerations, domestic violence can indirectly affect outcomes. In Stanford v Stanford [2012], the High Court emphasised that, before making any order altering existing property interests, the court must first be satisfied that such an alteration is just and equitable in all the circumstances of the case. Within this framework, subsequent lower-court decisions have been able to take non-financial factors, including the effects of family violence, into account when assessing the parties’ overall contributions and future needs.
In practice, victims of long-term abuse often face economic disadvantages. They may have worked part-time or left the workforce to care for children, often under pressure from a controlling partner. Courts may adjust settlements to account for this imbalance.
It’s important to note that while domestic violence itself is not a direct financial contribution, its consequences, such as mental health issues, interrupted careers, or diminished earning potential, can justify an adjustment in the final split.
Real-Life Example (anonymised)
In a matter determined by the Federal Circuit and Family Court of Australia, the court provided a clear illustration of how family violence may affect both parenting arrangements and property outcomes. The case concerned a long-term marriage in which the wife had been subjected to ongoing emotional and physical abuse, resulting in social isolation and the cessation of her employment due to the controlling conduct of her partner.
Following separation, the husband opposed any adjustment of property interests and sought arrangements involving substantially equal parenting time. In its assessment, the court relied on a range of evidence, including communications between the parties and third-party material, and found that the husband’s conduct posed an ongoing risk to the emotional safety of both the mother and the children.
In relation to parenting orders, the court determined that unrestricted contact was not appropriate and limited the father’s time with the children to supervised contact in order to protect their emotional wellbeing. In relation to property settlement, the court took into account the wife’s economic disadvantage arising from the history of abuse when assessing the parties’ overall contributions and future needs, and made an adjustment in her favour.
This case demonstrates how courts may integrate evidence of family violence across multiple aspects of family law proceedings, rather than treating such conduct as confined to a single legal issue.
A Lawyer’s Perspective: Challenges and Opportunities
From a legal standpoint, one of the biggest hurdles clients face is gathering evidence. Victims often lack formal documentation—there may be no intervention orders, police reports, or medical records. However, contemporary courts accept a broad range of evidence, including:
- Personal journals or diaries
- Text messages or emails showing threats, control, or degradation
- Testimonies from friends, family, or counsellors
- Records from domestic violence support services
Lawyers advising clients in these situations must act early to preserve such materials. Delay can weaken a case, especially when digital records are deleted or memories fade.
Another emerging trend is the recognition of economic abuse—controlling a partner’s access to money, credit, or employment. This form of abuse directly impacts property proceedings, as it may explain financial disparities. The Family Law Act 1975 (Cth) expressly defines family violence to include economic abuse, and in recent years courts have shown an increasing willingness, through case law and judicial practice, to recognise and give significant weight to such conduct.
Key Takeaways
- Domestic violence can alter parenting arrangements, including access and supervision orders
- Courts may award a larger share of property to the victim-survivor due to economic disadvantages caused by abuse
- Evidence such as messages, journals, and third-party accounts is crucial and increasingly accepted
- Economic abuse is legally recognized and can influence settlement outcomes
- The safety and wellbeing of children remain central in all parenting decisions
Frequently Asked Questions
How does domestic violence affect child custody decisions in Australia?
Courts prioritise the safety of children and may limit or supervise contact with a parent who has committed family violence, especially if it creates a risk of physical or psychological harm.
Can a person lose their property share due to domestic violence?
While violence alone doesn’t disqualify someone from a property split, it may lead to an uneven division, particularly if their abusive behaviour contributed to financial or emotional disadvantages for the other party.
Is emotional abuse considered in family law cases?
Yes. Emotional, psychological, and economic abuse are all recognised under the broader definition of family violence in the Family Law Act 1975 and can influence both parenting and financial outcomes.
What evidence is needed to prove domestic violence in court?
Courts accept various forms of evidence, including police reports, hospital records, text messages, affidavits from witnesses, and documentation from support services like 1800RESPECT.
Can a victim get legal protection during property or parenting proceedings?
Yes. Victims can apply for intervention orders (also known as restraining orders), which can be used to support their case in family court, especially if the abusive behaviour continues after separation.
How We Can Help
We support individuals affected by domestic violence through:
- Legal advice on parenting and property matters
- Assistance in obtaining intervention orders
- Representation in Family Court proceedings
- Coordination with support services and counsellors
- Strategic use of evidence to strengthen claims
Our approach is trauma-informed and client-centred. We understand that legal processes can be retraumatising, and we work diligently to protect your safety, rights, and long-term wellbeing.
