She Gave as Good as She Got? Family Violence, Interim Custody/Residence and the Family Court

Abstract

Experience has shown that family violence directed at one's partner, is rarely regarded by the Court as a disqualifying factor to argue against a perpetrator equating himself and the family home as "stability", nor as "convincing proof" that the child's "physical or mental health or moral welfare would be really endangered" remaining with the perpetrator, unless one can prove to the Court the child has, for example, been physically or severely emotionally abused by the perpetrator. It is thus the writer's view that a "stability facade" is created. Once interim custody/ residence is lost, if trial dates are not expedited the chance of the children being returned to the care of their mother, who often is their primary caregiver, is remote. This article explores the impact of family violence in the Family Court and, to a limited extent, overseas, its impact on interim custody/residence decision making, the stability facade and the possibility of reform.