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Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.

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Family Violence and Children at Risk

Every day in my practice as a family lawyer, family dispute resolution practitioner and mediator, I hear stories of family violence and children at risk.

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How does family violence affect children?

Often family violence and the breakdown of a relationship go hand in hand. This connection manifests in one of two ways; either the violence was the reason for the relationship breakdown, or the violence starts happening as a result of the relationship breakdown. While violence is always devastating for the victim, bear in mind that it can also have an impact on your children.

Children can be exposed to violence several ways. They can witness violence happening between their parents, they can actually be the victims of violence, and they can hear the violence occurring. Sometimes children are involved indirectly, for instance in situations where the violence occurs while the child is being held by the victim.

Psychologists have found that children who are exposed to family violence frequently display the same symptoms as children who have been abused or neglected. Essentially, the negative consequences of exposing children to any degree of family violence are undeniable. This behaviour can hinder a child’s emotional development, and there are also cognitive and social ramifications as well. Studies have further shown that the longer the violence lasts, and the more sever the conflict, the more critical the impact will be on the child.

Some signs that a child could be suffering from the negative effects of family violence have been identified as follows:

  • Fear and terror from witnessing or being directly involved in the abuse
  • Problems with relationships (including parents and siblings) which can carry on to adulthood
  • Lack of motivation at school
  • Social withdrawal
  • Aggression towards peers
  • Low self-esteem
  • Alcohol and drug abuse problems
  • Suicide attempts

Another major way in which family violence impacts the child is the extent to which the mothers’ caregiving abilities have been limited as the result of being the victim of violence. Often domestic violence can reverberate around a family, causing the otherwise non-abusive parent to abuse the children, or causing children to abuse each other. Abuse is cyclical, the effects of which can truly be devastating.

So what can you do if you fear your child is being affected by violence at home? Often victims are so emotionally and physically fatigued that they are unable to help themselves, let alone give their children the attention they need. However, it is important to recognise that while your child may not be the direct victim of violence, they can still be harmed by it, and there are steps you can take to mitigate the harm suffered by the child.

  1. Remove the child (and yourself) from the violent situation. This is often easier said than done, but the sooner you can remove yourself and your child from the violence, the less severe the long-term impact will be.
  2. Seek help. If you are the victim of domestic violence, you and your child will need to seek help in the form of protection, as well as therapy. Even if you think you have shielded your child from the family violence, chances are they have been affected in some way.
  3. Get back to a normal routine. The sooner your child has settled back into a normal routine, the quicker the recovery process can begin. Make sure the child continues to attend school, participate in extra-curricular activities, and have outings with friends.
  4. Surround the child with family and friends. Family violence often results in children feeling isolated and lonely, and withdrawing from social interactions. If you put your child in an environment where he or she is frequently around loved ones, this since of loneliness can be mitigated and the child may be less inclined to withdraw socially.

Grounds For Not Returning Child to Home Country

Grounds For Not Returning Children to Home Country

State Central Authority & Papastavrou [2008] FamCA 1120

If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned.  This is a high standard to meet, and will only apply in exceptional circumstances.

In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.

During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.

The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.

In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.

Evidence Required

Evidence Required 

Goode & Goode [2006] FLC ¶93-286

This is a case illustrating the importance of having evidence if alleging that acts of family violence have occurred.

A husband and wife separated after ten years of marriage in 2006. The children, ages 2 and 8 lived with their mother and spent time with their father alternating weekends. The father argued that the mother was preventing the children from spending additional time with him, while the mother argued that the parties had agreed to this arrangement. The mother sought an order finalising this alleged arrangement, while the father sought an order for an equal share care arrangement.

The mother alleged that the father had engaged in family violence during their relationship.  Normally, in custody disputes, the judge must apply a rebuttable presumption that it is best for parents to have equal shared parental responsibility. However, a major exception to this presumption is where family violence has occurred.

In this case, the judge was unable to conclude that the allegations of family violence were true. Because there was a dispute as to whether the violence occurred, the judge was conflicted as to whether the aforementioned presumption should apply.  The trial judge ultimately concluded that the allegations alone did not satisfy that violence had occurred. The mother lacked sufficient evidence to prove any acts of violence, and her words alone were not enough for the judge to be satisfied on reasonable grounds that violence had occurred.

The issue of alleged violence failed to make a major impact on the outcome of the case; the court concluded that the presumption should not apply in cases where there is even a dispute regarding whether family violence occurred. However, this case still illustrates the principal that when alleging family violence, you must be prepared to show evidence that allows the judge to make a finding that family violence did in fact occur.

The trial court issued an order allowing the children to live with the mother, but spend time with the father on alternating weekends, as well as Monday and Tuesday evenings, and on school holidays. Had there truly been a history of family violence, it would not be safe or appropriate for the children to spend that much time unsupervised with their father.

Therefore, if there is a history of family violence in your situation, be prepared to put on evidence that allows the judge to agree with your allegation.

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