This week, The Family Law Co. team attended important training about the intersection between family law and personal injury law when it comes to financial claims arising as a result of family violence.
This was part 5 of a 6 part series delivered by Smokeball & Family Property, which examined the extent to which the FCFCOA is willing to consider domestic violence in property settlements under the Family Law Act 1975 (Cth).
Below, I summarise my 5 key takeaways from this webinar:
1. In the family law jurisdiction, victims of family violence can be monetarily compensated by way of a Kennon v Kennon adjustment. Such adjustments are rarely made, and when they are made, they tend to be relatively modest. Between 2006 and 2012, in cases where family violence was accepted to have occurred, only 24 cases had any percentage adjustment for family violence.
2. The Australian Law Reform Report recommended that tort should be included in the Family Law Act 1975 (Cth) and be heard simultaneously with family law property proceedings. It was also recommended that the FCFCOA should be able to award damages to victims of family violence in accordance with established common law principles. These recommendations have not been adopted.
3. Acts of family violence can constitute an intentional tort of assault and/or battery, which give rise to civil liability. Victims of family violence should be referred to a personal injury lawyer at the earliest opportunity to obtain appropriate advice on viability and liability.
4. Generally, a civil claim must be commenced three years from the date of the tortious act. In NSW, the limitation period runs three years from the date of discoverability as victims are often unaware of the long-term impacts of the tortious act, particularly for psychological injuries.
5. Civil claims can take years from commencement to resolution. A victim in immediate need should consider the Victims Compensation Scheme, which provides immediate financial support by way of paying for medical bills, counselling, moving house, and changing locks. The victim is eligible regardless of whether the perpetrator has been charged or convicted. The application should be made within two years of the family violence occurring, or within two years of a child victim turning 18 years old. The client should also be made aware that funds received are repayable upon the successful award of damages in a personal injury claim.
To speak to one of our Family Law Solicitors to find out if Mediation or Collaborative Practice is right for you and your situation, contact the team here.
