The Family Law Act 1975 (Cth) (the ‘Act’) contains several provisions aimed specifically at protecting children and family members from violence and abuse.
The definitions of ‘abuse’ and ‘family violence’ under the Act are broad and align with most state-based family violence legislation. These definitions are purposely wide to encompass a range of circumstances that create fear and anxiety and severely impact upon the lives of many.
No matter how the terms are defined, family violence and abuse simply should not happen. Our compassionate, experienced family Lawyers can assist with applications, injunctions and relief to protect family members against actual or threatened violence.
What is family violence?
Family violence is actual or threatened conduct by a family member towards another family member or property, that causes a person to be fearful or anxious about his or her safety or wellbeing. A child is exposed to family violence if he or she hears or experiences the effects of family violence.
Family violence includes actual or threatened assault or sexual assault, stalking, derogatory and intimidating remarks, intentional damage or destruction of property, intentionally hurting or killing an animal, unreasonable suppression of financial resources or support and preventing or depriving a family member of his or her cultural connections or freedom.
Children may be exposed to family violence when they overhear threats towards other family members, witness or hear an assault of another family member, give assistance and comfort to a family member after an assault, or witness the attendance of emergency officers (police, ambulance) to an incident resulting from family violence.
Family Violence Orders
If you experience family violence or you know somebody who may need help, urgent applications can be made to prevent, minimise, limit and discourage violence and abuse.
A Family Violence Order is the generic term used by the Family or Federal Court for an order made under a specific law to protect a person from family violence. In New South Wales this is called an Apprehended Domestic Violence Order (ADVO).
An ADVO is made against a person (the ‘defendant’) on the application of another person (the ‘applicant’) who has reasonable cause to fear for his or her safety. An ADVO is issued if the parties are related, living together, in a relationship, or were previously in a relationship. The applicant’s children can be included in the order and the application can be made privately, through a Lawyer or by a police officer.
What orders can the Court impose?
The Court may impose whatever limitations or prohibitions on the defendant’s behaviour considered necessary to protect the other party and his or her children. The order may restrain the defendant from assaulting, harassing, threatening, stalking or intimidating the other person and from accessing / attending his or her premises or place of work.
A family violence order made by the Family or Federal Circuit Court may be inconsistent to the state-issued order in that it will allow contact between the parties, but only for the purposes of delivering or collecting children spending time with a parent or other person or for the parties to attend court, family counselling or dispute resolution services.
Interim and urgent applications
Generally, where family members are not at risk, parties should attempt to resolve matters in dispute between themselves. However, there are situations that will justify an application for interim or urgent orders. These are orders that are made during family proceedings that have already started or orders seeking an early hearing date at the start of a case.
The Court may make interim and provisional orders in urgent situations and in the absence of and without notice to the respondent named in an application. The Court has broad discretion and may, in its determination, consider matters such as:
- whether there is a history or allegations of family violence or child abuse;
- any past proceedings between the parties, whether there are orders presently in place and if these orders have previously been breached;
- the likely hardship or prejudice to the respondent, child or other party if the order is made;
- the likely damage or harm that may eventuate if the order is not made.
A police officer who believes that a person is in imminent danger of domestic violence and, it is necessary to ensure the safety and protection of that person and his or her children, may bypass the usual application process and request a provisional ADVO via telephone, facsimile or other communication process.
Urgent and interim applications must be credible and be carefully prepared, setting out the reason for the urgency. The Court must be convinced that harm will be avoided or reduced by hearing the application early and / or granting the orders sought. Our Lawyers have vast experience in preparing such applications and will assist you with the process.
If you are in immediate danger or fear for your own, or your children’s safety, we urge you to seek assistance through your local police.