Domestic abuse can be difficult to talk about and it is rarely an issue victims of abuse want to raise with complete or near strangers. And yet, in the context of family law matters, it is vital to be open with your lawyer about any abuse perpetrated by a spouse or partner against you or against your children.
In cases involving custody or access to children, your lawyer will be required to ask you whether or not you are aware of any time you or your former spouse has committed violence or abuse against their spouse, a parent of the child subject to parenting proceedings, any member of the person's household, or any child.
Outside of this context many lawyers may not ask, as part of their initial meetings with you, whether or not there have been incidents of domestic abuse in your family. Often this is because lawyers are not sufficiently trained in this area and feel a similar sense of discomfort in raising questions about domestic abuse. Thus, without clients disclosing to their counsel this information, it may take time for this issue to be properly addressed.
Even though the topic is often very painful, it is important to be honest with your lawyer from the start of your case with respect to any instances of abuse as your lawyer will be able to provide you with legal advice as to how the occurrence of abuse might shape your legal matter going forward.
More importantly, especially in the case of litigation, it can be important to be upfront with the court about instances of abuse and about how the abuse may have affected some of the decisions you made in the relationship.
Not being forthcoming with this information to your legal counsel could have a detrimental effect on your case for the following reasons:
- It is expected that any party in a proceeding be completely open and forthcoming about any and all details of their case. This includes instances of abuse. To not disclose this information from the start can suggest that you have something to hide or that you have an agenda when you do finally address the abuse at a later stage.
- In cases where children are involved
the court's main focus will be on the children's best
interests. Clearly, in those instances, the court will want to know
about any abuse perpetrated by one parent against the other or
directly against the children. That is not to say a parent who has
committed violence against their spouse or children will lose any
right of access or custody – and this is something you should
discuss with your lawyer – but the court will probably want
to know this occurred.
Moreover, if you know of the abuse against the children but do not disclose it, then the court could potentially draw a negative inference against you for not thinking about what is in the best interests of the children (i.e., disclosing the abuse serves the children's best interests). - Sadly, many judges see cases in which there has been domestic abuse on a regular basis. In addition, judges are always required to retain a position of neutrality. As such, judges are often hardened against abuse disclosure, and they may or may not be able or willing to give a lot of consideration to the emotional impact the abuse, and its disclosure in the proceedings, has on the victim. As such, it can be important to raise the issue early and openly so that a judge can consider the domestic abuse when reviewing any materials and in the context of the rest of the details in the case.
To be clear, these are not catch-all principles, and it is important that you consult with a lawyer about your case and about how any abuse perpetrated against you or your children may factor in to your particular matter. However, be completely open with your lawyer. They have a duty of confidentiality, and they need to know all the facts so that you can be provided with full and proper legal advice.
Have you been the victim of domestic abuse? The Ministry of the Attorney General website will help you on your way.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
