DOMESTIC VIOLENCE LAWYER

What is family and domestic violence?

Family violence and domestic violence are terms that are often used interchangeably, however, family violence is more commonly used by Aboriginal communities. The Family Law Act 1975 (Cth) defines it as 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.

Examples of domestic violence include:

  Physical violence (including sexual assault or other sexual abuse)or causing fear of physical or mental harm

  Stalking

  Repeated derogatory taunts

  Intentionally damaging or destroying property

  Intentionally causing death or injury to an animal

  Unlawfully depriving a family member, or any member of their family, of their liberty

  Coercive control

Domestic relationships

A person has a domestic relationship with another person if the person:

  Is or has been married to the other person; or

  Is or has been a de facto partner of the other person; or

  Has or has had an intimate relationship with the other person, whether or not the intimate relationship involved or has involved a relationship of a sexual nature. An example would be someone you have met on an online dating site; or

  Is living or has lived in the same household as the other person. An example would be a roommate; or

  Is living or has lived in the same residential facility as the other person and at the same time as the other person (not a correctional centre or detention centre). An example would be a nursing home; or

  Has or has had a relationship involving his/her dependence on the ongoing paid or unpaid care of the other person. An example would be a home care nurse; or

  Is or has been a family member of the other person. This includes mother, father, child, sibling, cousin, stepparents, stepchildren, step-siblings, nephew, niece, current or ex aunt or uncle, etc; or

  In the case of an Aboriginal or Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Child protection issues

Domestic violence can have a lasting physical, developmental, emotional and psychological impact on children and young people. Domestic violence involving a child is a child protection matter. Allegations of domestic violence may result in a referral to the Department of Communities and Justice (DCJ), previously known as the Department of Community Services and FaCS. Child protection matters are also known as care and protection matters.

There are two components to child protection matters:

Care and protection matters

Care and protection matters are investigated under the Children and Young Persons (Care and Protection) Act 1998 (NSW). It is not just the responsibility of mandatory reporters such as teachers and police to report child abuse. If you suspect a child is the victim of abuse, you can make a report to the DCJ’s helpline.

Where necessary, the DCJ will remove a child from its parents or guardians if it believes the child is in immediate danger. The DCJ prefers to keep Aboriginal and Torres Strait Islander children with their kin, however, this is not always possible.

In most cases, the DCJ gives parents or guardians an opportunity to resolve issues that raised concerns. However, that is not always possible. If the DCJ believes that it is not in the best interests of the child the remain with their parent or guardian, it can refer the matter to the Children’s Court.

Criminal prosecution

Australian States and Territories are responsible for the investigation and prosecution of most child abuse offences. These offences are prosecuted under the Crimes Act 1900 (NSW). However, there may be offences under the Criminal Code Act 1995 (Cth) such as using a carriage service for child abuse material.

Court proceedings for care and protection matters, including criminal prosecution, may significantly impact your Family Law matter, especially your ability to participate in dispute resolution such as mediation and access to your children.

Family Law proceedings

When you file an application for parenting orders, the Family Law Act requires you to complete a Notice of Risk. The Notice of Risk informs the Family Court of Australia or Federal Circuit Court of Australia (depending on which court hears your matter) of:

  Allegations of child abuse or a risk of child abuse; and

  Allegations of family violence or a risk of family violence that amount to an abuse of a child

The Notice of Risk ensures that families are referred to appropriate support services that offer targeted early intervention and assistance. The court is a mandatory reporter and refers the matter to child welfare services.