Family violence in family law court proceedings
australian law protects individuals from acts of domestic violence or abuse. each state and territory has enacted laws that benefit domestic violence victims. in addition, the family law act 1975 requires family law courts to take family violence into account when parties seek parenting and financial orders.
FAMILY VIOLENCE IN FAMILY LAW COURT PROCEEDINGS
The Family Law Act 1975 defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.” Family violence can include:
- A physical or sexual assault;
- Making repeated derogatory taunts;
- Intentionally damaging or destroying property;
- Intentionally harming pets;
- Unreasonably withholding financial support needed for living expenses or preventing a family member from being financially independent;
- Preventing a family member from having contact with family, friends, or culture; and
- Imprisoning or otherwise depriving a family member of his or her liberty.
Family violence and Family Law Court procedures
An allegation that family violence has occurred or that there is a risk of its occurrence can, if accepted by the Family Law Court, excuse compliance with the requirement to attend Family Dispute Resolution before seeking a parenting or financial order.
When a person seeking an order from a Family Law Court believes that he or she (or his or her child) has been a victim of family violence or is at risk of experiencing family violence, that person must file a notice with the court and serve a copy upon the alleged abuser. The court will then consider evidence of family violence when it makes parenting and financial orders.
Family violence and parenting orders
If a parent files a notice alleging family violence in a proceeding seeking a parenting order, the court must consider evidence in support of those allegations when deciding how to fashion a parenting order that protects the other parent and/or the child from family violence. The party accused of family violence will have the opportunity to present evidence that no such violence occurred or is likely to occur in the future.
In most cases, Family Law Courts must presume that ordering parents to share responsibility for making child-raising decisions would be in the child’s best interest. When the court is satisfied that one parent has engaged in family violence, however, that presumption does not apply. A family violence finding may therefore impair rights that a parent would otherwise have to participate in making decisions that have an impact on the life of his or her child.
Family Law Courts consider the contributions made by each party to the marriage or de facto relationship when they fashion a property settlement. Those contributions include nonfinancial contributions, such as housekeeping and child care.
When a party satisfies the court that he or she was the victim of family violence, the court can place more value on the nonfinancial contributions made by that party. The court is entitled to consider family violence as a burden that the victimized party needed to overcome when making nonfinancial contributions to the marriage. A finding of family violence may therefore result in the victim receiving a larger share of the property pool than the court would have awarded in the absence of family violence.
New South Wales makes two kinds of apprehended violence orders (AVOs) available to individuals who fear they will be victim of future violence. An apprehended domestic violence order (ADVO) protects individuals who are married, related, living together, or in an intimate relationship. An apprehended personal violence order (APVO) provides protections when the people involved are not related and do not have a domestic relationship.
If you feel you need an AVO, or if you want to resist the entry of an AVO, you should consider getting legal advice. While the system is designed to permit self-representation (particularly for domestic violence victims who seek an AVO), outcomes are often better if you are assisted by a lawyer.
GROUNDS FOR A DOMESTIC VIOLENCE ORDER
A Local Court in New South Wales can grant an Apprehended Domestic Violence Order (ADVO) if it concludes that the person applying for the order:
- reasonably fears violence, intimidation, or stalking, or
- has suffered violence from the defendant in the past and may suffer violence from the defendant again.
“Intimidation” includes harassment, molestation, causing the protected person to fear for their safety or for the safety of other people in a domestic relationship with them, or damage to property.
As a general rule, the court must enter a requested ADVO if the defendant has been convicted of a domestic violence offence or an offence involving intimidation or stalking. Under unusual circumstances, the court can conclude that the order is not needed despite the conviction.
DOMESTIC VIOLENCE ORDER PROTECTIONS
An apprehended domestic violence order (ADVO) will prohibit the person against whom the order is entered (the “defendant”) from engaging in any of the following behaviours:
- Assaulting, molesting, harassing, threatening or interfering with the protected person.
- Intimidating the protected person.
- Stalking the protected person.
The “protected person” is the person who applied for the order. An ADVO also protects anyone in a domestic relationship with the protected person, including children of the parties.
The court can also elect to include conditions in an ADVO that prohibit the defendant from:
- Approaching or contacting the protected person (or approaching the protected person after drinking alcohol or taking illegal drugs).
- Approaching or entering places where the protected person may live, work or visit (or doing so after drinking alcohol or taking illegal drugs).
- Damaging or removing property.
The court can impose other additional reasonable conditions that it deems necessary to assure the protection of the party who applies for the order. Requiring the surrender of firearms and/or other weapons is one such condition.
There are two ways to apply for an AVO in NSW. First, you can contact the police and explain your fears. If the police believe your fears are justified and conclude that you would benefit from an AVO, the police can apply for an AVO on your behalf. This is often the best route to follow if you have recently been the victim of physical violence stemming from domestic abuse and the police are investigating the case.
You can also make your own application to the Local Court. After you file the application, court staff will give you a date for a hearing. The police will serve notice of the hearing (and a copy of your application) upon the defendant.
If you need protection right away, you can ask for an interim order at the time you file your application. A magistrate will decide whether you have alleged grounds that justify entry of an interim order. If an interim order is entered, it takes effect immediately and remains in effect until the hearing on your application. The police will serve the interim order on defendant at the same time they serve the application.
If the person who applies for an ADVO does not appear at the hearing, the application will be dismissed. If the defendant does not appear at the hearing, the ADVO will be entered by default.
The defendant can consent to the entry of an ADVO if both parties agree upon its terms. If the defendant appears at the hearing and does not consent to the ADVO, the person who applies for the ADVO must present evidence that satisfies the magistrate of the need to enter an ADVO. The defendant is entitled to present evidence to show why no ADVO is necessary.
After hearing evidence from both sides, the magistrate will enter or deny the ADVO. If the magistrate grants an ADVO, the magistrate will decide upon its terms.
An ADVO remains in effect for the period of time determined by the magistrate. The initial period that the order will remain in effect will not usually exceed 2 years, but the order can be extended later if circumstances justify an extension.
ENTRY OF AVO BY CONSENT
A party who receives notice that someone in a domestic relationship has requested an AVO has the option of negotiating the terms of an order and consenting to the court’s adoption of the negotiated order. That can be done without admitting wrongdoing.
Consenting to the entry of an order might be a preferable strategy if it is likely that the court will enter an AVO and if the terms of a negotiated order would be more favourable than the terms that the court might otherwise impose. Consenting to an order without admitting fault might also be better for your reputation than risking a court finding that you engaged in or threatened an act of domestic violence.
Some people decide to consent to an AVO because they do not plan to have further contact with the person seeking the order. If you are in that situation, remember that even an inadvertent violation of an AVO might cause you to be accused of violating the court’s order. For example, if the order requires you to have no contact with a former spouse and you accidentally bump into your former spouse at a supermarket, your former spouse might tell the police that you made deliberate contact. Misunderstandings that lead to punishments are always a risk when you consent to an AVO.
Before you decide to consent to the entry of an AVO, you should receive legal advice. A lawyer might have suggestions about possible terms of a negotiated AVO that could protect your interests.