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Proving non-physical abuse in family court

By January 8, 2022February 22nd, 2024No Comments

With the welcome news that NSW is set to criminalise coercive control, and most other states and territories also working towards legislating to combat coercive control, let’s take a look at how you might go about proving non-physical types of family violence, such as coercive control, when it comes to family court proceedings.

Family violence is relevant to both parenting and property proceedings in the family courts, as outlined in the Family Law Act 1975. In parenting matters, the courts must consider the best interests of the child as paramount. To determine the child’s best interests, the courts must consider both the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm. The latter consideration must be given greater weight, thereby effectively prioritising children’s safety. 

If family violence is identified as relevant, the court will rebut the presumption of equal shared parental responsibility. Under the Act, both parents are presumed to have equal shared parental responsibility, meaning both parents have an equal say on major long-term decisions relating to the child. It does not mean that a child will spend equal time with each parent. However, if the parents are presumed to have equal shared parental responsibility, the courts will then give consideration to, firstly if spending equal time with each parent is in the child’s best interests and secondly, whether spending equal time is practicable and reasonable.

But when the presumption of equal shared parental responsibility is rebutted, such as due to family violence being established, the court does not need to first consider whether equal or substantial/significant time with the child is in the child’s best interest. Instead, the court can make any order it decides is in the best interest of the child, given consideration of the overall matter.

Family violence can also be relevant in property proceedings. You might like to read our blogs on this subject, including protecting your interests if family violence is a factor, and an explainer on the Kennon argument.

Telling the story

If you believe that non-physical abuse is relevant in your family court proceedings, you’ll need to establish that to a court with rock-solid evidence. Merely alleging abuse occurred will not be enough to persuade a court.

You can prepare by seeking a professional therapist who specialises in this type of abuse. As an independent third party they can assist you to tell your story. You could also seek out an advocate from a family violence support group who likewise will have the experience and tools to help you clearly outline your story for a court.

Proving abuse occurred

It’s crucial to document evidence of the abuse. Sometimes, this is made easier by your abuser, such as if they have sent you numerous abusive text messages. Under the Family Law Act 1975, repeated derogatory taunts, for example, are enough to establish family violence under the Act. This is what occurred in a recent family court matter, pseudonymised as Kalmus & Hocking. In this matter, the father admitted numerous abusive, threatening and demeaning messages to the mother and as such, the court found family violence was established.

Remember, always keep your own messaging factual and emotionless (it can help to use an email filtering program that ensures your communications are not inflammatory).

Gathering evidence

Here are some ways you can gather evidence of non-physical abuse.

  • Keep a detailed journal of incidents
  • Download and save relevant voicemails
  • Download emails and text messages and keep them in a file (there are apps for this).
  • Obtain call logs (showing sender, recipient, dates, times)
  • There may be evidence you can obtain from your employer regarding time missed from work due to abuse
  • Consider secretly recording your partner being abusive. However, realise that there are issues with secretly recording others, including whether it is legal. However, if the recorded evidence would be likely to be probative (have some value in establishing proof), then even if illegally obtained, a family court judge may still allow it as evidence. It’s super important to seek the advice of a family lawyer if you are contemplating using secretly recorded material. Their advice will ensure you do not jeopardise your case (judges don’t tend to approve of secret recordings and it can backfire by reflecting badly on the person recording). And the last thing you want is to end up facing criminal charges if the recording was made illegally
  • For both physical and non-physical forms of abuse, keep track of all related medical treatments and evidence relating to doctors and other treating professionals. Emotional abuse can often lead to a victim experiencing anxiety and depression or other mental health issues. If a victim of abuse seeks help for this, then practitioners like psychologists and counsellors may be able to provide evidence
  • Is the abuse also physical? Always seek medical care after physical incidents, even if there are no visible injuries. And ideally, file a police report. The more that is documented, the better.

Should you get family, friends, co-workers to testify in your case?

It depends. If they are only able to provide hearsay evidence (such as what you have told them about what is happening) then there is going to be little benefit. However, it’s quite a different story if they actually witnessed incidents of abuse occurring. In that case their evidence could be very helpful.

How you can store evidence safely

Here are some tips for ensuring you can gather evidence without fear of your abuser finding out.

  • Have a secret email address only for your family court matter
  • Use a password protected online journal rather than a hard copy
  • Hide physical evidence in a safe place or with a trusted friend
  • Memorise your passwords
  • Don’t discuss your plans with anyone electronically (other than your family lawyer)

For help with a family law matter involving family violence, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Alliance Family Law can assist you once you have chosen to take a legal course of action, whether this involves separation, divorce, custody arrangements for your children, or property settlements; as well as supporting you with any related criminal law or other legal matters through our network of referral companies. Whilst we are a Canberra based firm we operate in all east coast States and the ACT.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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