We use the term ‘family violence’ instead of ‘domestic violence’ in this section because that is the term used in the Family Law Act. If someone has experienced family violence, this will generally be relevant to their family law matter and they should get legal advice from a lawyer who specialises in family law and has an understanding of the dynamics of family violence.
The Family Law Act 1975 (Cth) is a federal law and covers issues such as divorce, property, arrangements for children after separation and spousal and child maintenance. The laws around property and parenting apply to married, de facto and same-sex relationships.
Definition of family violence
The Family Law Act provides a non-exhaustive list of examples of behaviour that may constitute family violence:
- an assault
- a sexual assault or other sexually abusive behaviour
- repeated derogatory taunts
- intentionally damaging or destroying property
- intentionally causing death or injury to an animal
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support
- preventing the family member from making or keeping connections with his or her family, friends or culture
- unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
The Family Law Act also lists examples of situations that may constitute a child being exposed to family violence. They include but are not limited to the child:
- overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family
- seeing or hearing an assault of a member of the child’s family by another member of the child’s family
- comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family
- cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family
- being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Family violence and mediation
Mediation in family law matters is called Family Dispute Resolution or FDR. In most circumstances, parties must participate in FDR before they can apply to family law courts for orders. However, there are exceptions to this requirement including if there are reasonable grounds to believe there has been or is a risk of abuse or family violence. This is because FDR works best when there is equal bargaining power between the two parties. Where one party has significant power over the other, such as where there has been violence, it is usually difficult to achieve a fair resolution.
FDR is not normally recommended when there is family violence. However, sometimes it can be part of a healing and empowering process and can be undertaken with good support. Sometimes special measures can assist with safety concerns such as undertaking ‘shuttle FDR’, where parties are in separate rooms and/or FDR with a lawyer present which can be arranged through Legal Aid or some Family Relationship Centres.
Family violence and parenting orders
A court must make parenting orders that are in a child’s best interests. In determining what is in a child’s best interests, the court must consider the following primary considerations:
- the benefit to the child of having a meaningful relationship with both their parents
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act requires courts to give greater weight to the need to protect children from physical or psychological harm than the benefit to them of having a meaningful relationship with both parents.
The Family Law Act also requires the court to ensure that any orders made:
- have regard to any family violence order (an order, including an interim order, made under a prescribed law of a state or territory to protect a person from family violence, for example an ADVO)
- do not expose a person to an unacceptable risk of family violence.
How AVOs interact with Family Law
After separation in a domestic violence relationship, it is common for violence to occur when parents are negotiating spending time arrangements for a child, or when parents are dropping off or picking up a child from visits (Parkinson, Patrick, Violence, abuse and the limits of shared parental responsibility Family Matters no.92 2013).
Often, the AVO will contain standard order 6 Orders about family law and parenting to accommodate the family law parenting orders.
Parenting orders include orders about where the child lives (‘live with orders’), who they spend time with (‘spend time with’ orders), how parents must communicate between themselves about the child, the communication the child is to have with a parent while in the care of the other parent and the allocation of parental responsibility. This means that even if a relationship between the parents ends, they are likely to continue to remain in contact to discuss issues about their children.
Generally, parenting orders override an AVO to the extent of any inconsistency. For example, when an AVO states that the defendant must not approach within 100 metres of the protected person’s home, but the family law orders state that the defendant is to collect the child from the home every Friday at 4pm, then the defendant can approach the home on Friday at 4pm and not be in breach of the AVO, as the AVO is invalid to the extent of the inconsistency. However, if the defendant assaulted the protected person while he was at the home, or he went within 100 metres of the home on other days of the week, then the defendant could be charged with breaching the AVO.
Under section 68R of the Family Law Act 1975, a Local Court magistrate has the power to vary, suspend or revoke parenting orders on the making of an AVO if there is new material that was not before the family law court when it made the parenting orders. In this way, AVOs can ‘override’ previously existing parenting orders.
However, sometimes the Local Court is reluctant to change a parenting order. The under-utilisation of section 68R may be due to a variety of reasons – including the complex wording of the legislation and lack of knowledge by police prosecutors, lawyers and magistrates about the section.
Even where magistrates, lawyers and police prosecutors are familiar with the provisions of section 68R, there is often not sufficient time on a busy AVO list day to obtain instructions and evidence in support of a successful section 68R application. In such cases, a protected person will need to make a separate application in a family law court to vary the family law orders.
It is sometimes suggested in the media, or by some police or lawyers, that women routinely make applications for AVOs to gain an advantage in family law cases about children or property. Some people suggest that a woman will apply for an AVO so that she gets a greater share of the marital property, or so that her ex-partner will be denied spending time with children. If one party in a family law matter claims that domestic violence has occurred, they must still prove it to a family law court. Although an AVO may be presented to a family law court as evidence of family violence, this will be considered among other sources of evidence including for example affidavits or expert reports.
Injunctions for personal protection
The Family Court and the Federal Circuit Court have the power to order a court injunction (an order prohibiting certain actions) between parties for personal protection. These orders are often called protection orders. However, applying for an apprehended domestic violence order (ADVO) is cheaper and quicker than applying for a court injunction. Also, ADVOs are specifically aimed at protecting people from domestic violence, and contain orders and enforcement mechanisms that are more suitable for such protection. For these reasons, unless the parties are already involved in proceedings under the Family Law Act they are more likely to apply for an ADVO for their protection than a court injunction.
Family violence and the home
The Family Court and the Federal Circuit Court have the power to make an order which restrains one party from entering or living in the home until such time as the property settlement is finalised. These orders are sometimes called exclusive or sole occupation orders. Before making an order, the court considers things such as the needs of both parties, the needs of the children, the conduct of the parties and any allegations or history of violence.
An exclusion order in an AVO can also be used to remove a person from the home, regardless of whether their name is on the title or not.
A person who is on the title to a property can change the locks without anyone’s permission.
Family violence may be relevant to property matters in family law. It is important to get legal advice about any property issues and be aware that time limits apply.
The Domestic Violence Hot Topic is intended as an introductory guide only and should not be interpreted as legal advice.