Domestic Violence and Australian Family Law

Domestic violence is a very unusual kind of act, in that it is technically a crime, but also has strong connections with family law. You should understand that domestic violence, sometimes known as ‘intimate partner violence’, can happen in many different ways:

• Physical domestic violence is where someone is physically hurting you, and tends to be the most visible of all kinds. You should be conscious of the fact that physical domestic violence tends to be something that starts off slowly and can rapidly develop into a very hostile situation;
• Unlike physical violence, emotional domestic abuse is more sinister and difficult to identify. It can happen in a variety of different ways, e.g. bullying, being made to feel isolated or being in a constant state of fear for your safety;
• Most people have relative freedom to use their money however they like, but if someone is taking severe steps to limit your financial freedom and forcing you to be dependant upon them, then this could be interpreted as a form of domestic violence.

Domestic violence can affect people at any age. Furthermore, this kind of behaviour does not need to occur within the family home for it to be deemed as domestic violence and can occur in any kind of relationship. While domestic violence is more commonly associated with a relationship between spouses, it is still possible for a relationship between parent and child or even brother and sister to be characterised as being one where domestic violence is possible.

Under the Crimes Act 1900 (NSW) the courts are granted powers to make specialised orders, known as Apprehended Violence Orders (AVOs), to help protect you if you are worried about domestic violence.

AVOs can be divided into two categories:

• Apprehended Domestic Violence Orders – this is an order that the courts can make if you are either related to, living with, or are in an intimate relationship with the person who is being violent towards you; and,
• Apprehended Personal Violence Orders – personal violence orders share much of the defining characteristics of domestic violence orders with one difference: they are designed for people who are not related to, or do not have a domestic relationship with the person that is abusing them, e.g. the order is sought against a neighbour or a work colleague.

When you approach the court asking for it to make either of the orders mentioned above in your favour, the court will need to be provided with evidence that there is some level of violence that you are suffering from to warrant the granting of an order. Keep in mind that the court will be aware of the different kinds of domestic violence that there are. The person that you are seeking the order to be made against will also be entitled to attend court and their lawyer is permitted to ask you questions on your evidence.

If the court is persuaded of the need for a Domestic Violence Order, this will amount to a court direction that you are not to suffer abusive behaviour. Orders will always outline the prohibited kinds of behaviour, including stalking, harassment and intimidation. The court can also order additional conditions if it deems it necessary.

You should understand that if your abuser breaches either of these orders, there are grave consequences. Breach of a court order will attract a criminal conviction, which could bring with it additional sanctions. There are also real consequences in terms of family life for someone who is the subject of an Apprehended Violence Order:

• Their responsibility for any child that they may have with you can be severely curtailed. The courts will generally prefer that parents maintain joint responsibility for a child, even where they disagree from time to time. However, the presence of an AVO will make the court more inclined to grant you sole responsibility for your child's welfare, as it will be anxious to ensure that the child's welfare is catered for;

• Their opportunity to save their relationship with you will be diluted. Traditionally, in cases where a couple quarrel, there is a legal requirement for them to attempt to resolve their difficulties through mediation. However, the existence of domestic violence removes this requirement, meaning that they risk losing their tie to you if there is no correction of their behaviour. This will also play an important role in determining the distribution of property where you decide to terminate your relationship with someone who is known to have committed domestic violence against you. A court will be more inclined to award you a more generous proportion of the estate, to reflect the hardship you endured.