Domestic Violence, Family Law, and the Boiling Frog
Domestic violence allegations and parenting disputes go hand in hand.
You need to focus on the end-game.
As a family lawyer I am often asked how common fake complaints of domestic violence are made by a mothers and wives, in order to get some advantage in family law negotiations including for example to stop the father from having anything to do with his children. The suspicion that false allegations are widespread may be because domestic violence allegations are sometimes only made at the same time as disputes about parenting or property settlement arise, often at the end of long relationships with no history of complaints of family violence or police involvement.
Family violence allegations and parenting disputes often go hand in hand. Where domestic violence orders can have serious ramifications, and going through Court to prove what really happened is emotionally and financially challenging, it makes sense to focus on the end-game.
The legal definition of domestic violence isn’t just physical or sexual abuse. Domestic violence incudes all sorts of threatening or coercive behaviour including threats of self-harm or harm to others (for example the victim’s other family members), unauthorised surveillance, stalking, emotional or psychological abuse (which includes words or actions that torment, intimidate, harass, or are otherwise offensive), and even economic abuse (defined as the unreasonable control of finances that denies the victim financial autonomy, or prevents the victim from meeting their own reasonable living expenses, or the living expenses of children or other dependents).
The boiling frog story is a metaphor for people who will put up with circumstances that get gradually and progressively worse, where they otherwise would not. The idea is that if a frog is dropped into a pot of boiling water, it will immediately jump out to save its own life. However, if the frog is already in a pot of water, and the water is then very slowly brought to the boil, the frog will stay in the pot until it dies.
In a relationship context, it means people will often quietly put up with behaviours from their partners that they have grown to accept with time. Sometimes it is because they have been conditioned to accept the poor behaviour, and sometimes it is because they are worried that if they leave the relationship, they may lose their children or their financial security. Allegations of domestic violence, therefore, will often coincide separation because those behaviours are often not called out until the relationship is beyond saving.
Allegations of domestic violence can also arise simply because when long-term and committed relationships end, people get upset and sometimes even angry at each other, and the legal definition of domestic violence is very broad.
What if the allegations are false?
Because domestic violence often occurs within the home, and away from witnesses, it is usually impossible to know whether allegations of domestic violence are real, embellished, or completely untrue. I have represented both husbands and wives who have admitted to committing domestic violence. I have also represented both husbands and wives who were victims of domestic violence. I have also represented clients who, whilst I do not know whether some domestic violence has occurred, false allegations have also been made.
The purpose of domestic violence legislation is to protect people from violence. In an area of law where evidence is often lacking, and an order is often considered to have little or no adverse consequences for the alleged perpetrator, the Courts invariably take a cautionary and therapeutic approach. This means I must advise my clients very carefully about what course of action they should take even if they vehemently deny the allegations against them or (if I am acting for the victim) their ex-partner is opposing the allegations. While every case is unique, I always encourage my clients to focus on the likely consequences of a domestic violence order, and the long-term outcomes we want to achieve. Those outcomes often including ensuring my client has ongoing contact and (in many cases) equal shared care or even primary care of their children, as well as providing protections for all.
This approach means carefully considering the exact nature of the allegations, and the exact orders being sought or (on occasion) by the police who may have made the application on the alleged victim’s behalf. How and to what extent will the orders being sought affect my client’s other family law matters? Can the orders sought be negotiated to something that doesn’t affect parenting, or does the application need to be challenged in Court?
Where the orders being sought are likely to very significantly and badly impact on my client or on the children, and the allegations can be proven to be false, then the allegations need to be challenged in court. Luckily, however, this confluence of circumstances is rare.
Other options
Domestic violence laws provide a mechanism for alleged perpetrators of violence to consent to an order being sought, without having to admit to the allegations being made. If an order is made “by consent without admissions” then there is no finding by the court as to whether domestic violence did nor did not occur. This means that there’s no legal judgment that can be used by either party in any subsequent parenting litigation.
Under family law, there is an obligation on the Family Court (when determining what is best for the children) to take into account the existence of domestic violence orders. However, where those orders are made by consent and without admissions, then this is usually limited to a consideration of the conditions imposed by the orders, and not the allegations themselves.
When deciding to impose a domestic violence order, the court must be satisfied not only that domestic violence has occurred, but also that the order being imposed is necessary or desirable. This means that, in circumstances where parties have separated and (in some instances) there are separate family law proceedings dealing with parenting or property matters, my role includes negotiating on my client’s behalf to make sure any orders made (including by consent and without admissions) ensure the necessary protections, but impact as little as possible to the family law outcomes my client is seeking in the longer term.
A good lawyer will proactively engage with the other party, to achieve the best long-term outcomes for all parties, especially the children.
The truth is, serious and unacceptable family violence is widespread in our society and it is usually impossible to know whether allegations of domestic violence are real, embellished, or completely false. Statistics on the prevalence of violence between husbands and wives, however, leave no doubt that domestic violence is real. While there are different ways of determining the prevalence of domestic violence, with varying degrees of accepted accuracy, it is broadly accepted that one woman is killed every 9 days and one man every 29 days, as a result of family violence (source: Australian Institute of Health and Welfare).
Good family lawyers, however, will know not to always focus on proving or disproving specific instances of domestic violence, but to deal with the fallout once allegations have been made. Your family lawyer’s role is to find a successful pathway for you out of the nightmare, so that you and your children can get on with your life and heal.
