Family and Domestic Violence

The existence of domestic violence in relationships is sadly widely spread in today’s society. The perpetrators and the victims of domestic violence cannot be narrowed to one single social class or to their level of education or their wealth, it can affect people of all ages, gender, cultures and ethnicity. Frequently, marriages and de facto relationships end as a result of domestic violence. In such cases, it is necessary to act quickly to protect the victims of violence which predominantly are women and children. Each State and Territory in Australia has legislation addressing domestic violence designed to provide a fast and efficient method to obtain immediate and urgent protection from the violent party.

What Is Domestic Violence?

AIHW Family, domestic and sexual violence in Australia, 2018

AIHW Report: Family, domestic and sexual violence in Australia, 2018

The term “family violence” and “domestic violence” is defined differently in the ACT and NSW. Normally, the term is defined broadly, beyond simply physical violence on a person. In the ACT, the relevant legislation is named the Family Violence Act, 2016 which defines “family violence as the following behaviour by a person in relation to a family member:

  1. physical violence or abuse;
  2. sexual violence or abuse;
  3. emotional or psychological abuse;
  4. economic abuse;
  5. threatening behaviour;
  6. coercion or any other behaviour that—
  7. controls or dominates the family member; and
  8. causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
  9. behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour;
  10. sexually coercive behaviour;
  11. damaging property;
  12. harming an animal;
  13. stalking;
  14. deprivation of liberty.

What Can a Victim of Domestic Violence Do?

If you are in immediate danger please call 000.

There are numerous other services available for victims of domestic violence such as:

ACT Domestic Violence Crisis Service Ph: (02) 6280 0900 (24 hours)
NSW Domestic Violence Line 1800 656 463
Canberra Rape Crisis Centre Ph: (02) 6247 2525
Victim Support ACT Ph: 1800 822 272 (24 hours)
Victims of Crime Assistance League (VOCAL) Ph: (02) 6295 9600
Lifeline Ph: 131 114 (24 hrs)
White Ribbon Australia
Kids Helpline Ph: 1800 551 800 (24 hrs)

Family Violence Orders and Apprehended Violence Orders

In the Australian Capital Territory and in New South Wales there is legislation in existence which allows parties to obtain orders to protect them from the violent member of the family: in the Australia Capital Territory these are known as “family violence orders” (FVOs), and in New South Wales as apprehended violence orders (AVOs).

Urgent Family Violence Orders

A victim of family violence may obtain urgent Family Violence Orders by applying directly to the Court (1), even after hours including weekends. Police officers may also bring an application on behalf of a victim.

The system is designed to be simple, quick and inexpensive. This applies in the ACT Courts and the NSW Courts. An application once lodged goes before the Court within a short time the same day in the absence of the perpetrator or alleged perpetrator of violence. If the Court considers that it is appropriate, interim Family Violence orders will be made and subsequently served on the perpetrator. The matter is normally listed for further mention afterwards to afford the other party the opportunity to put his/her side of the story and, to defend the matter in a final hearing.

If you have a family or domestic violence matter or just have some general enquires we can be contacted on 02 6206 1300. We are always ready to discuss this important but serious subject matter with you.

If you would like more information or to make an appointment in either our Canberra or Queanbeyan office please contact Gemma Sutherland:

+61 2 6206 1300 | e: gsutherland@elringtons.com.au

The Family Law Amendment Act 2011

Changes to the Family Law Act 1975 introduced in 2012 are aimed at ensuring that the protection of family members from family violence become a priority in family law matters.

The Family Law legislation Amendment (Family Violence and Other Measures) Act 2011 came  into effect on 7 June 2012  the Court has to give greater weight to protecting children when considering the primary considerations under the Act. Those considerations are:
(1) the benefit of the child of having a meaningful relationship with both parents; and
(2) the need to protect the child from harm.[1]

The amended provisions mean that the Court must prioritise protection from harm.
The changes to the Family Law Act were driven by various studies conducted by the Australian Institute of Family Studies, Family Law Council and former Family Court judge Professor Richard Chisholm. Those studies demonstrated high instances of family violence and safety concerns during family breakdowns and argued that the Family Law Act has previously failed to protect children and other family members from family violence and abuse. [2]

The amendments introduced include a new definition of “family violence” and “abuse” which broaden the previous definitions to better capture behaviour that is harmful, and also recognises that exposure to family violence is threatening to a child’s physical, emotional, psychological, social, education and behavioural wellbeing.[3]

Under the amendments, ‘Family violence’ now includes:

Violent, threatening or other behaviour that coerces or controls a family member or causes the family member to be fearful.

Examples given under the act include:

  • Assault, including sexual assault
  • Stalking
  • Derogatory taunts
  • Intentionally damaging or destroying property
  • Intentionally causing death or injury to an animal
  • Unlawfully depriving the family member of his or her liberty
  • Preventing the family member from keeping connections with family, friends and culture.

Abuse now includes:

–          An assault, including sexual assault, of the child;
–          Sexual activity with the child
–          Causing the child to suffer serious psychological harm, including when that harm is caused by being exposed to family violence
–          Serious neglect of the child.
The Explanatory Memorandum to the Family Law legislation Amendment (Family Violence and Other Measures) Bill states that this definition is designed to encompass stalking and financial control.
In the context of family law proceedings, those in the legal community including counsellors, legal practitioners and dispute resolution practitioners are now required to prioritise the safety of children. The Court will have better access to evidence of abuse and family violence by improvements to reporting requirements..[4]
This is achieved in part by the removal of the ‘friendly parent’ provision, which previously required the Court to consider the willingness of one parent to facilitate the child’s relationship with the other parent. The reports also showed that this provision had a practical effect in discouraging parents from reporting family violence and abuse, for fear of being labelled an ‘unfriendly parent.’ Now that this has been removed, it is hoped that all relevant information will be put before the Court in parenting matters..[5]

For more information, contact Carlos Turini

p: (02) 6206 1300 | e: cturini@elringtons.com.au

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[1]. Family Law Act 1975 (Cth) s60CC (2).
[2]. McLelland, R, Second Reading Speech, Family Law Amendment (Family Violence and Other Measures) Bill 2011.
[3]. Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2011
[4]. Ibid.
[5]. Ibid.