Domestic Violence is Unacceptable
No one should live in fear or be subjected to domestic violence.
In the Australian Family Law system, Domestic Violence is referred to as Family Violence. Protecting families and children who are engaged with the family law system from the effects of family violence is a priority for the Family Court and the Federal Circuit Court.
What is Family Violence?
The Family Law Act defines family violence as “violent threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”.
Examples of behaviour that may constitute family violence, include but are not limited to:
- Sexual assault or other sexually abusive behaviour;
- Repeated derogatory taunts;
- Intentionally damaging or destroying property;
- Intentionally causing death or injury to an animal;
- Unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support;
- Preventing the family member from making or keeping connections with his or her family, friends or culture; and
- Unlawfully depriving the family member or any member of the family member’s family, of his or her liberty.
A child may be considered to have been exposed to family violence in the following circumstances:
- Overhearing threats of death or personal injury;
- Seeing or hearing an assault;
- Seeing a member of the child’s family being comforted or being provided assistance after an assault;
- Cleaning up a site after intentional damage to property by a member of the child’s family; and
- Being present when ambulance and police have been called because of an assault.
It is a child’s right to be protected
The best interests of the child is the paramount consideration of the Court when decided whether to make a parenting order.
In determining what is in the best interests of the child, there are two primary considerations the Court looks at:
- The benefit of the child having a meaningful relationship with both parents, and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations in respect to family violence that the Court may also consider includes:
- Any family violence involving a child or a member of a child’s family; and
- If a family violence order applies or has applied.
Local Court vs Federal Court Orders
If you find yourself in a family violence situation both a Local Court or a Federal Court can make orders for the protection of a child, other relevant persons or property.
Obtaining an order from the Local Court is quicker and cheaper. Usually the police bring the case before the court within a very short period of time. There is no cost to the Person in need of protection as the police are prosecuting the case.
Private prosecutions are also available in circumstances where the police will not pursue a case.
It is our experience that the Local Court enforcement of orders is quicker, cheaper and more efficient. In the Family Court or Federal Circuit Court, most victims in need of protection are required to hire a lawyer to draft the documents required in support of their case against the perpetrator. Due to the availability of the court it can take up to 6 week to obtain a court date, which is not the hearing of the matter. The hearing date can again take many months to be allocated.
Enforcement of orders may be an issue because of cost and delay of bringing the matter before the court.
There may be instances where orders made by the Family Court / Federal Circuit Court about spending time with your children conflict with a Local Court Order.
Where there are inconsistencies relating to parenting orders that states a party spend time with the child and a local court order that states a party keep away from a child; the Family Law deals with it in 2 ways:
- Where the Family Law Act orders conflict with the Local Court orders, the Court must explain to the party the effect and consequences of the orders and how it can be complied with.
- If a State Court makes a family violence order, the State Court is empowered to amend the existing parenting orders if it is necessary.
What will the Courts do?
- The Court has a duty not to make orders that expose a child or person to unacceptable risk of family violence.
- Family violence and abuse are identified early in the proceedings and the Court can seek that the state agency investigate and report back on their investigations.
- Any views expressed by the children.
- The first step in protecting the child or victim of family violence is to pick up the phone and report the violence.
- The right of the child to be protected from harm outweighs the need of the child to have a meaningful relationship with the parent/perpetrator.
- Where family violence is established the Court may order that the child have no further contact with the perpetrator or supervised contact.
- The Court also has the power to order therapeutic counselling and the perpetrator attend psychological evaluation and treatment.
How can we help?
If you think you are a victim of family violence it is important to seek assistance as soon as possible.
Immediate Danger: 000
Domestic Violence Line: 1800 656 463
Department of Human Services: 132 468
National Family Violence or Sexual Assault Counselling Service: 1800 737 732
Veritas Law Firm: 02 9687 9993 / 131 LAW