DOMESTIC AND FAMILY VIOLENCE
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Family relationships are complex and can be highly emotional and sadly, family violence is on the increase in Australia. It can have a lasting impact on all parties involved. Accusations of violence, whether true or unfounded, can also have a significant impact on Family Law proceedings, especially where children are concerned. When presiding over child related matters, the court always considers what is in the best interests of the child.
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
- 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
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.
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.
Legal response to domestic violence
Domestic and family violence is a criminal offence. Each Australian State and Territory is responsible for its own family violence laws. In NSW, it is dealt with under the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2207 (NSW). If you have been accused of domestic violence offences or have an ADVO including children, your ability to obtain or retain a Working with Children Check may be impacted. It can also affect your work in the security industry if you are required to use a firearm as part of your employment.
Criminal offences are serious and have a long term impact on other areas of your life such as your employment. A conviction for any of the following offences may involve paying a fine and/or serving a term of imprisonment. If you have been charged and/or have an ADVO in place, it does not negate your parenting responsibilities such as child support.
Domestic violence offences include:
Destroying or damaging property
Use a carriage service to menace/harass/cause offence e.g. texting, using social media, phone calls, emails, etc.
Stalking or intimidation with intent to cause fear of physical or mental harm
Choking, suffocation and strangulation
Recording and distributing (or making threats to) intimate images (also known as image-based abuse)
Sexual assault offences
For more information about these offences and the sentencing options available, click on the Criminal Law link above.
Apprehended Violence Orders
If the court convicts you of a domestic violence offence, it will likely issue an Apprehended Violence Order, also known as a restraining order or protection order. There are two types of AVOs, however, Apprehended Domestic Violence Orders (ADVOs) are the order that applies to domestic violence. Police can apply for an ADVO on your behalf or you can make a private application to the Local Court.
Even if the court acquits you of a domestic violence offence, it can still issue an Apprehended Violence Order. That is because the prosecution might not have been able to prove you committed the offence beyond a reasonable doubt, however, it may have been able to meet the requirements for an AVO.
Apprehended Violence Orders are not a criminal conviction, rather they are civil court orders that can be issued for the protection of a victim. However, if you breach an AVO, it becomes a criminal offence. It has a lower burden of proof (on the balance of probabilities) than a criminal offence (beyond reasonable doubt). This means that even if the court dismisses the domestic violence charges, it may still issue an Apprehended Violence Order if it believes it is reasonable for the protection of the victim.
If you have an ADVO in another State, it is recognised and enforceable in NSW. For example, if you have a Family Violence Intervention Order issued by the Magistrates Court in Melbourne, Victoria, it will be recognised by the NSW Police.
For more information about Apprehended Violence Orders, click on the criminal law link at the top of the page.
The prosecution has the decision-making power to determine which court your matter will be heard in if you have been charged with an offence. Most domestic violence and family violence charges will be dealt with in the Local Court, however, more serious offences involving significant physical injury or death may be dealt with in the District Court or Supreme Court. If your matter is heard by the Local Court, a jury will not be present.
The following is the Local Court process:
Seek legal advice
Contact our service for legal advice and possible representation so that you can achieve the best possible outcome.
Police ADVO application
Police may apply for an ADVO on your behalf. If the Police believe that you are in immediate danger, they can issue a Provisional ADVO which will remain in place until your matter is heard by the court.
Your matter will go before the court for its first appearance. If you plead guilty to the offence and/or consent to the AVO, your matter will be finalised. You will need to comply with the orders of the court. If you plead not guilty and/or contest the AVO, your matter will be adjourned and set for another date. The ADVO becomes an Interim ADVO and you will need to comply with its conditions. It remains in place until the court removes it.
The police will present you and the court with a copy of the brief of evidence. The matter will then be adjourned again and a hearing date will be set. This will allow you and your legal representative to review the evidence against you and give you a chance to collect evidence to dispute the charges.
Your matter will be heard in its entirety. Both parties will present their evidence. Sometimes this is a straightforward process and the matter is finalised the same day. Sometimes a hearing may be heard over several days. Once your matter is finalised, you will be sentenced the same day.
Court of Appeal
If you are dissatisfied with the Outcome, speak to a Solicitor about your prospects of filing an appeal in the Court of Appeal.
For detailed information about domestic violence offences such as criminal penalties and sentencing options, click on the Criminal Law link above.
The above is general legal information and should not be considered legal advice. You should speak with one of our domestic violence lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
Frequently Asked Questions.
If you have experienced domestic violence, it is important to report your experience to the police. They may be able to charge the other person with domestic violence offences or assist you in applying for an Apprehended Domestic Violence Order. If you have reported your experience to police and they have not been able to assist you, contact our office for a free initial consultation. We may be able to assist you to make an application to the Local Court for an Apprehended Domestic Domestic Violence Order.
You can access social service providers such as:
1800RESPECT (1800 737 732) for free 24-hour sexual assault and family violence counselling
1800 019 123 a dedicated contact line for Aboriginal victims of crime
ACON an LGBTI health organisation where you can access information, referrals, counselling and advocacy for family violence
DVNSW an online referral service for assistance with housing, counselling, etc
Mensline is a telephone and online counselling service for men across Australia.
Family Law does not fall within the jurisdiction of the Police, however, there are limited circumstances where the Police can intervene. If you or your ex-partner fail to return the child after visitation, an application for a Recovery Order can be made to the court. The court can then request the assistance of Police to find and return the child. Police will not act unless there is a Recovery Order in place.
If you are concerned about the safety of your child, you can file a report with the Police. They can complete a welfare check on the child and act accordingly. However, if there is no risk of harm to the child, they will not remove the child until there is a valid Recovery Order in place.
If you are concerned that your ex-partner will remove the child from the country, you can complete a Family Law Watchlist. The AFP monitors the movement of children placed on the watchlist, however, if you have immediate concerns, you can contact the AFP to inform them of your concerns.
Yes. You will be required to complete a Notice of Risk when you apply for parenting orders. The court also needs to be aware of any violence or risk of harm to yourself or your children so that it can make appropriate orders, for example, supervised visits, a neutral third party to conduct handover, etc.
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