Family violence means 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. See section 4AB Family Law Act 1975 (Cth).
The section provides a non-exhaustive list of examples of family violence:
assault
sexual assault or sexually abusive behaviour
stalking
repeated derogatory taunts
intentionally damaging or destroying property
financial abuse
preventing a person from connecting with their family, friends or culture
unlawful deprivation of liberty
If you are in fear of your safety, please contact the police immediately. Depending on the nature of the situation, the police may order an ADVO which is an Apprehended Domestic Violence Order. This can still be ordered even if you are residing under the same roof as the defendant. Most ADVOs are made by the police with very few people making successful private applications for ADVOs.
If there was an incident of family violence and the police were contacted, the police will assess whether a provisional ADVO is made. This involves the police speaking to you, the defendant and any other persons present at the incident. There will be a court date scheduled before a magistrate to determine whether to make the provisional ADVO into the final ADVO. If there are any delays or adjournments made, the police may seek an interim ADVO which is an ADVO pending the outcome of the final determination. Although a provisional or interim ADVO are temporary and not final, a defendant who breaches the provisional or interim ADVO can be charged with a criminal offence. If at a final hearing the magistrate grants the final ADVO, it will be valid for a set period, normally 1 to 2 years. The police may apply for an extension if necessary.
If you are in a family law dispute with the defendant, please inform your family law solicitor of the family violence incident and provide them with a copy of the ADVO.
You should also speak to a counsellor or your GP for a referral to a psychologist or psychiatrist about any trauma you are experiencing from family violence. There are helpful organisations that can provide counselling such as 1800 RESPECT which is an Australian national sexual assault, domestic and family violence counselling service. Their hotline number to speak with a trained counsellor is 1800 737 732.
The Courts take family violence allegations seriously especially in parenting matters. The Court's paramount consideration is the best interest of the children. The Court does this by considering the following:
benefit to the child having a meaningful relationship with both of the child's parents
need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Read s60CC(2) Family Law Act (Cth).
Therefore the Court will take steps in protecting the safety of a child when there are allegations of family violence. abuse or neglect.
The most common way that the Courts have dealt with this issue is for the parent accused of perpetrating family violence to spend supervised time with the children for a period of time until an interim hearing or final hearing. The Court may also require parents to undergo parenting courses, anger management courses, counselling etc.
In some rare and extreme cases, the Courts have ordered for the parent accused of perpetrating family violence not to spend any time with the child. In some situations, the Court will direct that parent to fulfil some requirements before assessing whether it is safe for that parent to spend time with the child.
If you have been accused of perpetrating family violence, you should re-evaluate how you communicate and behave with your ex. Separation is a difficult time for most people and different people react in different ways. It is important to remain respectful, polite and courteous to your ex. Bear in mind that everything you do can be presented before a Court. So think twice when you are about to send a nasty text message to your ex.
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*** Disclaimer:
Information on this website or post does not constitute legal advice and that electronic dialogue with readers does not constitute any form of client engagement unless specifically agreed.
The information is provided on a general basis only. We strongly recommend that you seek your own independent advice from a lawyer about your situation.
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