Family and Domestic Violence
Family violence can leave a lasting and devastating impact on the lives of many.
The existence of family violence will excuse a party to a parenting dispute from the requirement to attend compulsory Family Dispute Resolution in relation to children’s issues. It is also a factor that will be considered when the court makes a parenting order, with the welfare of the children being the paramount consideration in such decisions.
Violence in relationships
The Family Violence Act 2018 contains provisions aimed specifically at protecting children and family members from violence and abuse. The definitions of ‘abuse’ and ‘family violence’ are broad and are purposely so to capture a range of circumstances including both physical and psychological forms of violence and abuse that create fear and anxiety for those exposed.
What is family violence?
Family violence includes physical abuse, sexual abuse and psychological abuse, and dowry-related violence. Psychological abuse can include threats, intimidation, harassment, damage to property, ill-treatment of pets/animals, financial or economic abuse, and hindering or removing access to necessary aids, devices, medication, or other support. Violence can include a pattern of behaviour that may be coercive or controlling or causes the person, or may cause the person, cumulative harm. A single act may amount to abuse, and several acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse. Causing or allowing a child to see or hear the physical, sexual, or psychological abuse of a family member (or putting a child at risk of this) is considered psychological abuse of the child. However, the person subjected to the abuse is not considered to have caused or allowed the child to see or hear the abuse. In the Act ‘family relationship’ is defined as in general, sharing a household, and a close personal relationship. A person may be considered to have a close personal relationship with another person if they are the recipient of care and carer relationship.
A protection order is a legally enforceable court order which protects you (and your children) against violence or contact from someone in a close relationship with you who is threatening or abusing you. A protection order places limitations or prohibitions on the alleged perpetrator of violence that are considered necessary to protect an applicant and his or her children. The order may restrain the person from assaulting, harassing, threatening, stalking, or intimidating the other person and from accessing/attending his or her premises or place of work. Protection orders automatically cover children in the applicant’s family, who live with the applicant either on a day-to-day basis or periodically. You can also ask for the order to cover other people (with their written consent) who are at risk because of their relationship with you (such as new partners and friends). The police may also make a temporary order, called a Police Safety Order, in cases of emergency and at times when a lawyer may not be available. This is a temporary safeguard for up to ten days which lets a police officer remove a violent person from the household. If a Police Safety Order is made, you should seek legal help as soon as possible so you can get a Protection Order from a court.
Protection orders can apply whether the parties are living together or separately. They contain non-violence and non-contact conditions. Non-violence conditions apply whether the parties are living together or not, they state that the person who has used family violence (the “respondent”) must not physically or sexually abuse the protected person or threaten to do so, damage or threaten to damage their property, use psychological abuse against the protected person, or encourage others to do these things. Non-contact conditions prohibit the respondent from making any contact with the protected person. Prohibited contact includes going onto the property; watching or loitering around someone’s home, workplace, school, church, or other place they visit often; following them around or stopping and accosting them; and making telephone calls or sending letters, faxes, texts, or emails to the protected person.
Contact between parents and protected children may be allowed in certain circumstances. If the protected person agrees to live with the violent person, the non-contact conditions of the order are suspended. If they stop living together, the non-contact conditions come back into effect without having to reapply to the court. Protected people who are considering living with the violent person again should seek legal advice from our team beforehand about how any children might be affected, the children’s rights and what the law allows.
How can we help?
We can assist you to apply for a protection order to help protect you, your children, and/or other family members from domestic violence. If you are in immediate danger, we recommend that you contact the police for urgent assistance.
What if a protection order is made against me?
The legal and practical implications of having a protection order issued against you are significant. A protection order can also impact your ability to communicate with or spend time with your children. We recommend you contact a lawyer immediately if you have been named as the respondent in an application. A breach of a protection order is a criminal offence. The police can arrest the violent person and hold them for 24 hours before releasing them on bail. If charged with a breach, the violent person will have to appear in the criminal court. If convicted, you will get a criminal record and may be sent to prison for up to three years.
If you are in immediate danger or fear for your own, or your children’s safety, we urge you to seek immediate assistance through your local police.
Our family law team can assist you in applying for a protection order or responding to an order made against you. Vanessa Leishman and Rebecca Davies have considerable experience representing clients in domestic and family violence matters including to a final hearing stage. Their intricate knowledge of the dynamics of family violence and the impact this has on adults and children who have been exposed to it, means they are both strong advocates for their clients while also demonstrating compassion and empathy.