Factoring in the Cost of Violence: the Relevance of Family Violence in Determining Property Settlements Under the Family Law Act

Abstract

There is now a strong body of research, which shows that the impacts of family violence go beyond emotional and physical harm, and that family violence has significant economic implications for individuals, families and the community, particularly women. For example, violence is the key cause of women’s homelessness in Australia, and a leading cause of preventable death, disability and illness for women. It has also been found to have significant implications for women’s engagement in education and employment. Studies have also shown that the experience of severe spousal violence is linked to poorer outcomes for women when negotiating family law property settlements. Despite this, the Family Law Act 1975 does not explicitly deal with the relevance of family violence in family law property disputes, and the case law dealing with this issue has proven for many to be unclear and inaccessible. The purpose of this paper is to refocus attention and reinvigorate discussion on this issue, and to highlight what more can and should be done to improve legal responses to violence in the context of family law property proceedings. The paper looks firstly at the development of jurisprudence in the family law courts on this issue; then based on a review of recent first-instance judgments, looks at how this has been put into practice in recent times. Finally, I set out some options for reform to improve the family law system’s response to the relevance of family violence in determining property settlements under the Family Law Act.