What is Domestic Violence?
Domestic violence, or Family Violence as it is known in Family Law, is defined in section 4AB of the Family Law Act to mean:
...violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes that family member to be fearful.
Family violence, includes both physcial and psychological violence and can incorporate physical, sexual, spiritual and economic abuse. Examples of behaviour that may constiute family violence include:
- Physical or sexual assault.
- Stalking, harassment or repeated derogatory taunts.
- Withholding financial support or denying financial autonomy.
- Intentional destruction of property.
- Intentionally causing death or injury to an animal.
- Isolating a victim from their friends and/or family.
Protecting Yourself: Apprehended Violence Orders (AVO)
If you are experiencing domestic violence or you fear for your safety, you may wish to apply for an AVO to protect yourself. An AVO is a court order which prevents your prepetrator of domestic violence from assualting, stalking, threatening, harrassing or intimidating you.
Note that an AVO is not a criminal charge, and an uncontested AVO will be made without any finding of guilt on the part of the alleged perpetrator. However, it is a criminal offence to breach an AVO, and anyone who breaches an AVO may be subject to penalties ranging from monetary fines to a term of imprisonment.
How to Apply
If you need an AVO you should contact the police and the police will apply for an AVO on your behalf. If the police decline to apply on your behalf you can apply for an AVO yourself through the Local Court.
Either way, the court will grant an AVO if it is satisfied that you fear the defendant and that there are reasonable grounds for you to fear the defendant.
If the police apply for the AVO on your behalf, you will be represented at court by a police prosecutor. If you are making a private application, you should engage a lawyer to represent you.
All AVO's will include mandatory conditions, providing that the defendant cannot assualt, stalk, harras or threaten the protected person. The AVO may also impose any other conditions necessary to protect you, these will commonly include conditions restricting or preventing the defendant from contacting you or approaching you.
Opposing an AVO
If an AVO is sought against you, you can either consent to it or oppose it. If the AVO is contested the matter will proceed to a hearing and the applicant will be required to show why the AVO should be granted. You should seek legal advice if you want to contest an AVO.
Safety at Court
The Federal Circuit and Family Court of Australia has put in place various measures to ensure the safety of all persons attending court.
Inform the Court
If you are afriad to attent Court, you can contact the Court to discuss safety measures available at your registry. Most registries have safe rooms available and some may be able to provide for separate entry and exit points.
Bring a Friend
If you do not have a lawyer, you may bring a friend or support person to Court with you. Note the extent of involvement that your friend or support person may have will be at the discretion of the judical officer.
Attend Court Electronically
If you have safety concerns about attending Court, you may request to attend Court electronically via telephone or video link.
Your request should set out your reasons for making the request. Note that the acting Judge or Registrar may approve or deny your request at their discretion.
Domestic Violence & Dispute Resolution
All parties to a family law matter are required to make a genuine effort to resolve their dispute through dispute resolution proceses before applying to the Court. However, the Court may exempt a party from the requirement to participate in dispute resolution if the case involves family violence or child abuse, or their is a risk that domestic violence or child abuse will occur.
Domestic Violence & Parenting Disputes
In parenting matters the presence of domestic violence will influence who gets custody, who has parental responsibility and how much time each parent gets to spend with the children.
Best Interest of the Child
The need to protect children from physical or psychological harm and from being subjected to abuse, neglect or family violence, is the paramount consideration in determining the child’s best interest. If the court considers that there is an unacceptable risk of family violence, a parent will not get custody of their children and will be denied non-supervised access to their children.
The presumption of equal shared parental responsibility does not apply in cases involving family violence. This means that the court will give one parent sole parental responsibility, meaning that they will be able to make all decision regarding the care and welfare of the child without consulting the other parent.
If an AVO is taken out against you, it may prevent you from being given custody. While AVO’s are no regarded as definitive evidence of family violence, they provide support of any such allegations.
The court will endeavour to make parenting orders which are consistent with the terms of the AVO; however, parenting orders take precedence over an AVO and the court can make orders which are inconsistent with it.
If your case involves family violence you are exempted from the requirements to participate in compulsory family dispute resolution and you may be able to get an urgent hearing date.
Domestic Violence & Property Settlement
The conduct of the parties or the cause of the relationship breakdown are not generally relevant factors in determining the appropriate division of the property pool. However, in cases involving serious family violence a Kennon Adjustment may be made. That is, the court might allocate the abused party a greater percentage of the property pool if particular circumstances are made out.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.