In this episode Ben and Heather are joined by barrister Rhys O’Brien, a specialist in complex family law matters, to talk about how the Court deals with Domestic Violence (Family Violence). They cover a wide range of topics, including the following:
Also discussed was the Family Law Amendment Bill that has been passed through Parliament and will take effect in May 2024 and includes a “streamlined” parenting framework simplifying the “best interests factors”. This legislation may impact how the Court deals with domestic violence issues when deciding children’s matters.
White Ribbon’s 24 hour hotline: 1800RESPECT or 1800 737 732
Women’s Domestic Violence Court Advocacy Service provides support services for women experiencing domestic and family violence.
Law Access NSW (aka Legal Aid) is a free government telephone and webchat service that provides legla information referrals and advice for people with a legal problem in NSW.
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Warning: There are background sounds in this episode due to construction at our guest’s premises. We apologise for any inconvenience to our listeners.
Benjamin Bryant: Welcome to Episode 52. I’m your host Benjamin Bryant from Bryant McKinnon Lawyers. This episode covers how the Courts deal with domestic violence. It is important for both victims and the accused to understand what constitutes domestic violence, how it can be dealt with in Court and how it might affect things like future access to children.
Benjamin Bryant: As usual, my partner in crime and family law expert Heather McKinnon helps me to delve into this topic. And we were very fortunate to be joined by barrister Rhys O’Brien. Rhys is based in Sydney, with the prestigious Culwalla Chambers and specialises in complex family law matters. He is well known to us because he spends much of his time in courtrooms up and down the north coast, and often acts on behalf of our clients.
Benjamin Bryant: Before jumping into today’s show, let me say that if you are suffering domestic violence there is help out there. White Ribbon has a 24-hour hotline: 1800RESPECT or 1800 737 732. The NSW police also stand ready to help, and most local police departments (including Coffs Harbour) have a specialist Domestic Violence Liaison Officer.
Benjamin Bryant: If you know someone who may benefit from the information in today’s episode please share. And now, on with the show.
Benjamin Bryant: Well, thank you for joining us, Rhys, from your prestigious chambers in Sydney and with the construction noise in the background. Thank you so much for being here.
Rhys O’Brien: No worries, Ben, it wouldn’t be Sydney without the construction noise, so I’m glad I could bring them along.
Benjamin Bryant: Absolutely. And, Heather, are you ready to go?
Heather McKinnon: Sure am.
Benjamin Bryant: All right, Rhys, we often hear that domestic violence is a crime. Is there a difference between how the criminal law courts and the family law courts view domestic violence?
Rhys O’Brien: I wouldn’t say there’s a difference in how they view it, but there’s a difference in how they have to treat it. So the criminal law is, as you know, the government saying you shouldn’t do this and if you do, there’ll be consequences. So there are certain legal tests that go along with that. ie/ beyond a reasonable doubt: you have to prove that someone’s committed a criminal offence beyond a reasonable doubt. And the aim is, assessing the act on that higher level of evidence, to punish someone. And so if you’re looking at another area, like say family law, we look at: was there family violence and if so, how did that impact the family dynamic and is that going to be something we need to look at dealing with by way of orders, made by the court, in the future? So, for instance, in family law, we’re more interested in, say if there are parenting proceedings, as to whether there’s going to be a risk of harm for the kids. So if they’re going to spend time with dad or mum and there’s been family violence, we need to find out who the perpetrator was, what level of family violence was occurring and so on and so forth, to figure out what’s the best orders that you can make to help a child thrive amidst a separation. So criminal law will look at the small aspects. i.e. What occurred on X date? Did so and so hit this person? If they did, what’s the right punishment from a criminal perspective? Whereas family law takes a much broader brushstroke approach to look at how did this impact the family dynamic? And what orders can we put in place, with the example of parenting, to keep a child safe but also connected with each parent.
Benjamin Bryant: Excellent. And Rhys, I mentioned the term domestic violence and you mentioned the term family violence as no doubt defined as section 4AB in the Family Law Act. Is there a difference between domestic violence and family violence?
Rhys O’Brien: No. Not in my mind.
Benjamin Bryant: Excellent. Rhys, the first step for anyone suffering domestic violence is often to apply for an AVO or an apprehended violence order. What is an AVO?
Rhys O’Brien: It’s an order made by the local court that puts restrictions on the alleged perpetrator of the domestic violence about how they can interact with the victim. So it might say you’re not to go within 100m of their workplace, or you are to refrain from the behaviour that you’re accused of having done. So that’s effectively all it is. It’s an order made by the local court that puts restraints on the behaviour of someone alleged to have engaged in domestic violence against a person,
Benjamin Bryant: And for our interstate listeners, of course, Rhys has been talking about the local court, which is a state-by-state court. For the listeners in Queensland we’re talking about DVOs and for our listeners in Victoria we’re talking about Intervention Orders. Rhys, does the victim have to go to the police to get an AVO?
Rhys O’Brien: No, but that should be your first port of call.
Benjamin Bryant: Once issued, can an AVO be contested?
Rhys O’Brien: They can be contested. They’re regularly contested. After they’ve been put in place by an order of the Court, they can be varied or discharged as well.
Benjamin Bryant: Will the victim have to face the person accused of domestic violence in court?
Rhys O’Brien: Seeing them? Yes. They will.
Benjamin Bryant: What proof is needed for the court to approve an AVO?
Rhys O’Brien: If I can move back a step, they can and they will see them. But there are things in place to make that experience less traumatic. I know that there are some schemes in place where a perpetrator, if they turn up without a lawyer, might be restrained from asking questions of the victim. That can occur in some states. I note that doesn’t occur in New South Wales. Or they can put you in a different room. So you appear by what we call audio visual link. So, you appear on a computer screen, they appear on a computer screen and ask you questions that way. So that’s, I think, a helpful method if someone feels unsafe. And if someone who is listening today is concerned about the process, just know that there are ways to soften the experience for you. It’s not a pleasant one, but there are ways and means that the courts have to make that a less harsh experience for you. So you shouldn’t be deterred from approaching the authorities with your complaints if you do have genuine fears about the person.
Benjamin Bryant: And to make the harsh experience worthwhile for them, what proof is needed for the court to approve an AVO, Rhys?
Rhys O’Brien: It’s not the high criminal standard. I’m not going to go into technical terms for everyone, but effectively you need to go into court and show that the behaviour probably happened. Not definitely. And that you live in fear because of that behaviour. Like these are not hard…in my opinion, these are not as hard to achieve as were you going to go forward with criminal action?
Benjamin Bryant: And a common occurrence, Rhys, is when an AVO prevents someone from returning to the family home. But of course, they have all their personal possessions there. What can be put in place or how can those persons be helped to get their personal possessions from the home they’re not allowed to enter?
Rhys O’Brien: Well, basically you approach the court, and you say to the court, because they’re used to this occurring, you say to the court, I need to go and collect my things. They’ll make an order that enables that person at a set time to attend upon the premises with the police. So the victim doesn’t have to be there. The victim might have someone else there who can meet the police, and the police will then enable them to go through and collect personal possessions.
Benjamin Bryant: And moving from the state jurisdiction into the intersection with the family law jurisdiction, Rhys, we know that the Family Court takes domestic violence very seriously. Does there need to be an AVO in place before the court will consider domestic violence claims?
Rhys O’Brien: No. Simple answer is no.
Benjamin Bryant: Very simple answer, but it’s a question that we get a lot.
Rhys O’Brien: The Family Law Act deals with things countrywide, nationwide. There are matters in respect of family violence, (and I’m going to switch from domestic violence into family violence now, because that’s the right time for family law). There are aspects of family violence which you have to consider under the Family Law Act. So it doesn’t matter whether you’ve reported it to the police or whether you’ve got an AVO. None of that matters. If you have been the victim of that, then you’re perfectly entitled to bring that up in your affidavit and in your notice of risk, which is a form that we’re still required to fill out in this jurisdiction.
Benjamin Bryant: That’s right. And you mentioned before right at the top of the show, Rhys, that in the local court, we’re talking about whether something has or has not occurred at a particular time and a place, which was perhaps criminal or perhaps caused someone to fear for their safety. And in the Family Law Act, we’re talking about essentially unacceptable risk, and which we’ve discussed many times before on the podcast about balancing unacceptable risk and meaningful relationship between both of their parents. What does the court take into account when assessing unacceptable risk on that spectrum,
Rhys O’Brien: Well, the Family Court, (we’ll call it the Family Court, even though they changed their name). But the Family Court is really interested in looking at whether there was family violence in the relationship. And that’s relevant in two ways. The first is whether you’re looking at parenting orders. The second is whether you’re looking at property orders. So to put it quite simply, the family law judges, they want to know what was happening, how frequent it was, because they don’t have to make specific findings that certain events occurred. So I mentioned earlier about the local court, they need to deal with specific events such as, on the 24th of March 2018 so and so walked into the house, called me a so and so and then struck me with his right hand, causing me injury. They’re the kind of specific details that the criminal law goes into. The family law doesn’t have to make findings that that occurred. Family law enables us to make findings that there was family violence and then they will look at the seriousness of that family violence, which of course will be referable back to the specific instances. So it’s very helpful for people to have those in place, but family law takes a broader brushstroke approach.
Rhys O’Brien: That’s important when you’re dealing with parenting orders, as I said, because under the current regime, which changes in May of 2024, under the current regime, we’re still assessing whether there’s an unacceptable risk of harm to a child. And family violence has to be something that is looked at. So there might be risk, of a child spending time with someone who might be an abusive partner. But you need to assess whether that risk is unacceptable and whether certain orders can be put in place that govern the time that the child spends with that person to make it safe.
Rhys O’Brien: And in respect of property. Sorry, I’ve rabbited on it a bit and I apologise to everyone, including the listeners. But when you look at property, what you’re looking at effectively is whether that family violence has impacted upon your ability throughout the relationship, has affected your contributions to the relationship and whether they’ve been made more arduous as a result of the family violence. That’s effectively what they look at in property. And if your contributions have been made more arduous by the family violence, then you will likely receive an increased percentage of the pool because your contributions were made that much harder by living with an abusive spouse.
Benjamin Bryant: And Heather, I might ask you, in your years of experience, what evidence does the court usually require to satisfy itself that family violence is an issue?
Heather McKinnon: Often the way we bring this evidence in is through, again, social science. So Rhys has run a number of cases over the decades with us where we’ve had a forensic psychiatrist assess, usually the woman, to look at the impact on her life. But also our experience is that they’re much better at getting a victim to open up over time with a lot more history than police. I was, taking a statement of evidence from a woman on Friday, and I’ve already formed a relationship over six months with her, but she keeps coming up with more and more serious things that happened to her. And that’s as a result of that trauma response, because most people block it out. But what, Rhys and I’ve done in some of these cases is get a really good qualified senior forensic psychiatrist who can really use their skills to get victims to really remember the horror of what they’ve lived through. So it is horses for courses. I mean, some of these cases are much more serious than others, and we tend to look at what sort of expert we bring in, depending on the nature of the trauma and how serious it was, because, as Rhys is saying, you might be looking at an adjustment in property settlement but in the more extreme cases, you may actually be looking to take a common law damages claim because the victim’s life has been so impacted by the violence that they basically can’t function, in terms of going to work and things. So, there’s a lot of ways that we work in the cases, but it is about what resources are indicated, depending on, the serious nature of the history of violence.
Rhys O’Brien: Just on that point, Heather, you raise a very valid point. I acted in a matter, several years ago now where we utilised a counsellor for the client, because reliving these events of family violence, for people who have been victims of them is quite difficult. So we had the support network on the ground. We had her psychiatrist, who we engaged for the purpose of assessing and providing an opinion. And she formed the opinion that the client suffered from post-traumatic stress disorder as a result of the violence. We then ran a parenting and property case, over I think 7 or 8 days. There were never findings that the father had perpetrated gross family violence towards the children. It was adult versus adult. So that didn’t impact so much the parenting orders, but it did impact the property orders. And she received an adjustment because of the family violence that he had engaged in, which included physical, it included emotional, and it included financial control. And she then took the next step after those proceedings and commenced proceedings in the District Court of New South Wales. and I believe she’s received a reasonably favourable settlement for damages arising from his conduct towards her. So, there are examples out there for people who are interested in reading them and generally the best way forward is to go and see a competent solicitor who is well-versed in this area of law. Because without it, you might not get the support that you need. And I think it’s important to have this broader network of professionals around people, so you can get the best evidence that you possibly can before the courts.
Benjamin Bryant: And of course Rhys, with the existence of family violence comes the existence of a power imbalance. November 2022 the court rehauled itself and has an incredible focus on pre-action procedures and mediation and family dispute resolution for parties before they even contemplate filing with the court. If the court was to accept that family violence is a factor in a matter, are those parties still required to attend family dispute resolution or mediation or jump through the pre-action procedure hoops?
Rhys O’Brien: No. If family violence is an issue you don’t have to be subjected to those pre-action procedures.
Benjamin Bryant: And Rhys, you mentioned before, while we’re talking about changing of legislation, you mentioned a new bill coming through that’s going to take effect in May 2024. Will these changes affect how family violence is considered when deciding parenting orders? Because of course, right now we have a litigation pathway which we’ve covered in previous, podcast episodes. But I just cut through it quickly now. Essentially, there’s a presumption of equal shared parental responsibility between parents. If the court makes an order for equal shared parental responsibility, then the court must consider whether an equal time arrangement is suitable. And if that’s not suitable, then whether it’s appropriate to have an alternate arrangement or significant, substantial time. The current law is that the presumption of equal shared parental responsibility. So a consideration of equal time is rebutted. So the court doesn’t need to go down that pathway. With the new, legislation that’s coming in (that I understand, Rhys) is that the presumption is completely wiped away. it goes straight into a best interest assessment: risk versus relationship. Is that your understanding?
Rhys O’Brien: Thereabouts. I guess what you’ve said is quite helpful from a parental responsibility perspective. What the bill has done is alter what the court is to consider as being in the child’s best interest. So it’s simplified it, and I’ve got no issue with things being simplified in this jurisdiction. but we’re moving away from the traditional test, which was: is the child exposed to an unacceptable risk of harm, which is a well-trodden path for many lawyers and judges. And now it’s moving into the language of, what arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse and neglect or other harm. And that includes not just the child, but any other person who has the care of the child. So we’re really moving away from established ideas that we’re used to, and everyone’s going to have to adapt to this new language of what orders would promote the safety of the child and the person who has the care of the child. So there’ll be some case law involved. Someone will run a case on this new legislation and the full court or the Court of Appeal will tell us what we’re meant to look at when we examine the terms “promote the safety of”. That’s from a legal perspective. I think from a ground roots perspective, where people who are at the coalface dealing with ordinary matters that involve family violence, I don’t think too much will change in how the family violence is assessed and the approach that people will make. Unless we’re told otherwise by the full court or the Court of Appeal, I think we’ll just see judges changing the language which they use to justify the orders that they make. But it is a significant change.
Benjamin Bryant: That’s what I was going to ask Rhys, a question without notice.
Rhys O’Brien: It is a big change. I don’t want to get too bogged down because I know that your listeners aren’t just lawyers. But I was having a look at this over the Christmas break, as you do when you have an exciting life as a lawyer. And there’s going to be some interesting, arguments that take place because we’re going to be effectively treading in new territory. I think we might have to look at some of the tests from the UK, because they use the language of safety and well-being. So perhaps we’ll be having to look at UK case law to inform this meaning of safety. Because I think it’s pretty broad. I don’t like the changes myself. I think they’re too broad. I think we had, a legislative regime in place in respect of unacceptable risk, which we all knew, which had been commented on by the High Court. So we just have to wait and see how this works itself out. But one of the things that does give me some security in this area is that many of the judges and many of the lawyers are genuinely interested in seeing good and right outcomes occur on the facts. And however legislation is worded, it is generally always, interpreted and put in place, to give judges and lawyers the ability to make arguments that are in the client’s best interests and in the children’s best interests, based on their particular life experience, as is shown in the evidence before the court. So it is significant, and I’ll be interested to see how it all pans out. But I do take great security in the fact that many judges, will use the legislation to do their best to give a just and fair outcome.
Benjamin Bryant: Excellent. And, Heather, before we let Rhys return to his busy practice, I just want to throw to you. You’ve sat through a few legislative changes in your time. Is this just doing the same thing dressed differently, or is this a complete overhaul, in which you see it was a long time coming.
Heather McKinnon: I have a different opinion to Rhys. I think that we are really coming a long way fast in understanding the impact of family violence on women and children. And I think that this flags that it can no longer be ignored. The court’s going to have to look at the psychological and physical safety of women and children in every judgement. because we’re seeing all the time in the media the level of violence, that is, directed towards women and kids in this country is not acceptable. And I think the politicians in making the amendments have sent a clear signal that on every single case that comes before our court, that’s the first thing that’s got to be looked at in detail. How safe are these kids? So I agree with Rhys. It’s going to be really interesting. But my view is it’s the social science in the area of safety that’s driven the legislative change, because we’ve got a much better understanding now of how it impacts on kids over the long term.
Rhys O’Brien: That’s interesting because I think that I didn’t perceive the unacceptable risk test as not encapsulating those two areas. But it’s interesting to see that you read the new change as being something which specifically mandates a court to take into account various factors which you think are important, and I hadn’t thought about it from that perspective.
Benjamin Bryant: I guess we’ll have to wait and see. As long as all roads lead to best interests of children that’s the main thing.
Benjamin Bryant: All right. Thank you, Rhys.
Rhys O’Brien: Thanks guys.
Benjamin Bryant: Thank you. Heather.
Benjamin Bryant: Thank you for listening. Another reminder that there is help out there. If you are suffering domestic violence, you can call 1800RESPECT (or 1 800 737 732) 24 hours a day. The NSW police also stand ready to help.
Benjamin Bryant: If you liked listening to barrister Rhys O’Brien then you should check out episode 11 where we spoke to Rhys about social media and family law. You might be surprised to learn how social media can be used against you in court.
Benjamin Bryant: Next month we will be talking about all the things that people do wrong in child custody disputes – in the hope that this will help you, dear listener, avoid these mistakes. If you have any questions that you’d like us to answer on the program, please send them to familymatters@bryantmckinnon.com.au or message us on Facebook and we will try to get answers for you.
Benjamin Bryant: We’ll put a link to any resources mentioned in today’s show and a full transcript in the show notes on our website. And don’t forget…. please share this show with family and friends who might benefit.