Renting and other legal issues
Experiencing domestic violence can impact on every aspect of life and it is common to have many legal issues as a result.
Domestic violence and renting
If a person is renting and experiencing domestic violence there are a number of options available to make them safer in their home.
Removing a perpetrator of violence
In some circumstances, a victim of domestic violence may want the perpetrator removed from the home. The victim of violence or a police officer can make an application for an Apprehended Domestic Violence Order (ADVO) and ask for an exclusion order preventing the perpetrator from entering the property. If a tenant has a final ADVO with an exclusion order, then the tenancy of a perpetrator who is named on the Residential Tenancy Agreement (lease) will terminate (end) automatically.
Where a victim of violence does not have a final AVO with an exclusion order and where the perpetrator of violence is a co-tenant (named on the lease with the victim), the victim of violence can apply for an order from the NSW Civil and Administrative Tribunal (NCAT) to end the tenancy of the perpetrator due to the ‘special circumstances’ of the case. The victim can rely on an ADVO that does not include an exclusion order, and/or support letters from domestic violence services.
Changing the locks
Changing the locks at the property can significantly increase the safety of the victim if they want to stay in their home. Usually a landlord’s permission is needed before locks can be changed, however, there are special provisions that allow a victim of domestic violence to change the locks without a landlord’s consent in certain circumstances. For example, a tenant can change the locks without consent in an emergency or if they have an ADVO with an exclusion order against another tenant or former occupant.
Victim wants to leave
Simply abandoning the property may not end a tenant’s liability and a victim of violence can be left owing a substantial debt to the landlord.
A tenant experiencing domestic violence by someone they have, or have had, a domestic relationship with, can end their lease immediately, without penalty, by giving their landlord and any other co-tenants, a Domestic Violence Termination Notice.
The Domestic Violence Termination Notice they give to their landlord must include one of the following:
- a certificate of conviction of the domestic violence offender; or
- a provisional, interim, or final AVO, including one from any Australian state or territory or from New Zealand; or
- a family law injunction; or
- a declaration by a doctor they have formed the opinion the tenant, or their dependent child, is a victim of domestic violence. The declaration form is available on the Fair Trading NSW website.
Damage to the property
Tenants will not be responsible for damage done to their rental property if they can show that it was caused by a perpetrator of violence during a domestic violence offence.
It is common for victims of domestic violence to be listed on tenant databases due to debts they have incurred as a result of abandoning the property or due to damage caused to the property by the perpetrator. A black listing on a tenant database can make it almost impossible to find alternative housing. If a tenant ends their lease by giving a Domestic Violence Termination Notice, their landlord cannot blacklist them on a tenant database. If a victim of domestic violence has been listed on a tenant database they can make an application to NCAT to have their name removed if the listing was ‘unjust in the circumstances’.
Domestic violence and homelessness
Domestic violence is a common cause of homelessness amongst women and children. Services available in NSW include:
- Referrals for refuges via the NSW Domestic Violence Line
- Start Safely, a program of Housing NSW which provides a rental subsidy for the short to medium term to victims of domestic violence so they can secure private rental accommodation
- FACS Housing can assist victims of domestic violence with emergency accommodation and priority housing.
Domestic violence and employment
Domestic violence and employment do not operate in mutually exclusive domains. Approximately two thirds of women affected by violence in Australia are in paid employment. The 2011 National Domestic Violence and the Workplace Survey (published as part of a broader ‘Domestic Violence and Workplace Rights and Entitlements’ project undertaken by the Centre for Gender Related Violence studies at the University of NSW) found that 30% of the respondents had experienced domestic violence, and that 19% of respondents who had experienced violence said that the violence continued in the workplace in the form of abusive phone calls, texts and emails, and the perpetrator coming to the workplace. Paid leave and an appropriate and supportive response from employers to domestic violence can often play a crucial role in the financial and job security for an employee who is experiencing domestic violence. It also plays an integral part in supporting women who are considering leaving a violent relationship, particularly those who are in the process of setting themselves and their children up having left a violent relationship.
Domestic Violence Leave
Some workplace agreements and awards include paid domestic violence leave. This leave provides for an employee experiencing domestic violence and, in some cases, an employee supporting a person with whom they have a domestic relationship who is experiencing domestic violence to take paid leave to attend the police station, legal appointments, court, medical appointments and so on. This leave can be taken in part or whole days and does not have to be taken all at one time.
Some other workplaces provide unpaid domestic violence leave.
Right to request flexible working arrangements
The Fair Work Act 2009 (FWA) provides victims of domestic violence and those caring for an immediate family member or member of their household who is a victim of domestic violence with a right to request flexible working arrangements. Flexible working arrangements is not defined, but can include changing hours of work (eg working fewer hours or changing start or finish times), changing patterns of work (eg working split shifts or job sharing) and/or changing the place of work (eg working from another office or working from home).
The FWA does not give a right to flexible working arrangements but rather a right to request. An employer is not obliged to agree to the request and can refuse on ‘reasonable business grounds’ and unfortunately there is no right of appeal against an employer’s refusal to grant the request.
However, the FWA does protect an employee against an employer taking adverse action against them for requesting flexible working arrangements. Adverse action is where an employer threatens to, organises or takes action by:
- dismissing the employee;
- injuring the employee in his or her employment;
- altering the position of the employee to the employee’s prejudice; or
- discriminating between the employee and other employees of the employer.
While there are limitations in the flexible working arrangements provisions contained in the FWA, these protections still play an important role in increasing the safety and job security of victims of violence and the people supporting them. Flexible working arrangements are vital for safety planning and provide time and flexibility for people experiencing domestic violence to recover and to attend appointments, go to court and make accommodation arrangements.
Centrelink Crisis Payment
Victims of domestic violence may be eligible for a Centrelink crisis payment. There are tight frames to apply; an application must be made within 7 days of the event that lead to the person making the application.
Domestic violence and immigration
Perpetrators of domestic violence often threaten to send their partners on a temporary partner (or spousal) visa back to their country of origin. However, the Migration Act 1958 (Cth) provides that where a relationship breaks down due to domestic or family violence, the victim can apply for permanent residency. Where a person is not eligible for a permanent visa under the family violence provisions, they may have other options available. The Immigration Advice and Rights Centre provides free legal advice.
The Domestic Violence Hot Topic is intended as an introductory guide only and should not be interpreted as legal advice.