What is domestic violence?
Domestic Violence can occur in any sort of relationship, and can be directed towards both spouses/partners and children.
Domestic violence can include:
- Wilful Injury: this includes any form of assault, such as hitting, punching or strangling
- Wilful Damage: this includes any damage directed towards your household possessions, your car, or your even your residence
- Intimidation or Harassment: this can include repeated telephone calls or other forms of inappropriate communication, such as persistent watching or stalking
- Indecent Behaviour Without Consent: this includes sexual contact or activity that you have expressly or implicitly made known is unwelcome
In Australia the Family Court and the Federal Circuit Court take family violence very seriously. The Courts are guided by the following principles in responding to family violent concerns:
- Safety is a right and a priority for all who attend and work at the Courts
- Family violence affects everyone in a family, including children
- Family violence can occur before, during, and after separation and it may affect the ability of people to make choices about their family matter and to take part in Court events
- The Courts have a particular concern about the immediate and possible longer term adverse impacts on children who experience or witness family violence
Even if children do not directly witness the violence, they are often very aware of it
For more information please see the Department of Human Services ‘Family and Domestic Violence Strategy’.
Apprehended Violence Orders (AVOs)
An apprehended Violence Order (AVO) is an order made by a Court against a person who makes you fear for your safety, to protect you from further violence, intimidation or harassment. Such Orders can be obtained during a visit at the Police station.
AVOs are divided up into two categories:
- Apprehended Domestic Violence Orders (ADVO) are made where the people involved are related, living together or in an intimate relationship or have previously been in this situation. They are also available to people who are or have been in a dependent care arrangement with another person, including paid carers and to people living in the same residential facility.
- Personal Violence Orders (APVO) are for all other categories of victims where the parties involved are not related and do not have a domestic relationship (e.g. neighbours, colleagues etc.)
There is a range of orders commonly made by the Court in relation to Apprehended Violence Order proceedings. Those common orders are as follows:
When the Court is granting an AVO to an applicant, the following orders must be made:
- The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s);
- The defendant must not reside at the premises at which the protected person(s) may from time to time reside or work, or other premises.
The orders below are discretionary orders.
- The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises, (home/work);
- The defendant must not go within of the premises at which the protected person(s) may from time to time reside or work, or other specified premises, (home/work);
- The defendant must not approach, contact or telephone the protected person(s) except as agreed in writing or for the purpose permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation. The defendant must not approach, contact or telephone the protected person(s) except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorized by an order, or a registered parenting plan under the Family Law Act 1975;
- The defendant must not contact the protected person(s) by any means (including through a third person) except through the defendant’s legal representative;
- The defendant must surrender all firearms and related licenses to police;
- The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises:(school/child care/other);
- The defendant must not approach the protected person(s) within twelve (12) hours of consuming intoxicating liquor or drugs;
- The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s);
- Other orders.
Orders by consent and without admission
Apprehended Violence Orders (AVOs) can be made by consent and without any admission of wrongdoing by the defendant.
Generally, consenting to an AVO without admission guarantees a quick resolution of the matter, an important reduction in legal costs and the avoidance of a formal hearing.
At GMH Legal our team has received appropriate and targeted training in dealing with family and domestic violence concerns. We are aware of the nature, features and dynamics of such issues and have the expertise needed to identify our clients’ concerns and respond appropriately.
Domestic violence and parental responsibility
When the Court makes a parenting order it assumes that it is best for the children if the parents have equal shared responsibility and cooperate on decisions about major long-term issues including education, health and religion.
However any decision made in the Family Courts must:
- Recognise any violence in the family
- Ensure any orders it makes are in line with an ADVO that already applies to your family
- Ensure the children are not exposed to an unacceptable risk of violence
- Consider the children’s rights to know and have a relationship with both parents.
Therefore, in circumstances where there has been domestic violence, or family violence, as it is often referred to, there will be no presumption of shared parental responsibility.
Please refer to the NSW Government ‘Family law, children and domestic violence’ pamphlet.
Before starting proceedings in the Family Court or the Federal Circuit Court, parties are required to attend mediation with a qualified family dispute practitioner and make a genuine attempt to reach an agreement in relation to the arrangements for the child.
If there has been domestic and family violence or child abuse or you feel there is a risk to you or your children’s safety you do not have to go to dispute resolution first.
You can go straight to Court to apply for an order. However you must be able to prove the abuse or violence or a risk of these if you do not have a Certificate. The Court must believe that your fear of violence or concern for your wellbeing or safety is reasonable.
For more information please refer to the Domestic Violence Resource Centre’s ‘Preparing for Mediation’ section.
Property settlements are determined by the Court based on the contributions (financial and non-financial) and needs of each of the parties to the relationship.
When Courts are dealing with property settlement, they tend to consider the contributions of the party who is suffering from domestic violence as more valuable because of the arduous circumstances in which they were made.
Unexpected consequences of domestic violent report
At GMH Legal we take allegations of domestic or family violence very seriously and recognise its devastating effect on victims. Nevertheless we believe it is essential for our clients to understand the consequences that flow from making such reports to the authorities.
Following a report of domestic violence, as a matter of law, members of the Police Force are required to file an application for an Apprehended Violence Order (AVO) in Court to protect the person making the complaint from the alleged perpetrator. In addition, depending of the circumstances, the Police may also bring an assault charge against the alleged perpetrator.
Once a report of domestic violence has been filed, it will be up to the Police to decide whether the above mentioned steps (Application to the Court and assault charge) should be taken against the alleged perpetrator.
Members of the Police Force will not be bound by the opinion of the alleged victim and may proceed with the charges without his/her consent, even if the victim refuses to assist them with the enquiry.
Once again it is important to note that at GMH Legal we do not suggest that domestic violence should not be reported, but rather that the applicant must be aware of the consequences that flow from such allegations Consequences include the start of court proceedings against the alleged perpetrator, loss of employment, creation of a criminal record and significant legal costs to defend the charges.
Over the years we have witnessed many relationships breakdown irretrievably and families undergoing serious financial hardship following the report of domestic violence only ‘for the record’.
Do not hesitate to contact GMH Legal if you wish to discuss the options and strategies available to you and your family. Please also refer to the Family Court ‘What is Family Violence’ section.
Chronology of disputed cases
From the filing of an Application in Court, the average delay by the Court is currently 2-2½ years. If the matter requires an interim hearing, the current period of delay until the interim hearing is approximately four to six weeks.
While matters requiring urgent attention can be expedited, they must be considered exceptional in nature.
Call the experienced team at GMH Legal to assist you in your matter.
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