What is family violence?

Family violence is defined in the Act as physical or threatening behaviour towards a family member or their property, which causes that person to reasonably fear for their personal wellbeing or safety.

Any behaviour that causes you to reasonably fear for your safety or well being is included whether this is actual threats, physical violence or controlling behaviours.The court will look at whether a ‘reasonable’ person would fear for their safety or well being in the same situation.If you or the children are at immediate risk of harm, do not wait, call the police on 000. There are specialist family violence services that can also help you.

The Family Law Act 1975 (Section 4) defines family violence as: 'conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.'

At a more general level, Section 43(ca) requires a court to have regard to the need to protect individuals from family violence in circumstances of family violence.

Section 60 CF Informing court of relevant family violence orders

  • (1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order.
     
  • (2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that person may inform the court of the family violence order.
     
  • (3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

Section J Family dispute resolution not attended because of child abuse or family violence

  • (1)  If: (a)  subsections 60I(7) to (12) apply to an application for a Part VII order (see subsections 60I(5) and (6)); and
  • (b)  subsection 60I(7) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that:
  • (i)  there has been abuse of the child by one of the parties to the proceedings; or
  • (ii)  there has been family violence by one of the parties to the proceedings;

a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.

  • (2)  Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that:
  • (a)  there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
  • (b)  there is a risk of family violence by one of the parties to the proceedings.
  • (3)  The validity of:
  • (a)  proceedings on an application for a Part VII order; or
  • (b)  any order made in those proceedings;

is not affected by a failure to comply with subsection (1) in relation to those proceedings.

(4)  If:

  • (a)  the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and
  •  (b)  subsection (2) does not apply;

the principal executive officer of the court concerned must ensure that the applicant is referred to a family counsellor or family dispute resolution practitioner in order to obtain information about those matters.

Section 69ZW Evidence relating to child abuse or family violence

  • (1)  The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
     
  • (2)  The documents or information specified in the order must be documents recording, or information about, one or more of these:
     
  • (a)  any notifications to the agency of suspected abuse of a child to whom the        proceedings relate or of suspected family violence affecting the child;
     
  • (b)  any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
     
  • (c)  any reports commissioned by the agency in the course of investigating a notification.
     
  • (3)  Nothing in the order is to be taken to require the agency to provide the court with:
     
  •  (a)  documents or information not in the possession or control of the agency; or
  • (b)  documents or information that include the identity of the person who made a notification.
     
  •  (4)  A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.
     
  • (5)  The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.
     
  • (6)  Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:
     
  •  (a)  the person consents to the disclosure; or
  •  (b)  the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.
     
  • (7)  Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:
  •  (a)  is notified about the intended disclosure; and
  •  (b)  is given an opportunity to respond.

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Author

Alan Weiss

17th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.