How to escape family violence – the first legal steps to take2-July-2017 Family Law By Mel Collins
Violence within relationships continues to be a significant cause of homelessness, particularly for women and children. The Family Law Act expanded its definition of family violence in 2011 to include psychological violence such as repeated derogatory taunts, intentional destruction of property, unreasonably denying financial autonomy and/or financial support to meet reasonable living expenses and restriction of liberty. This is in addition to physical assault.
It can be very difficult for a victim of family violence to obtain legal protection in the form of an Apprehended Domestic Violence Order (ADVO) from the police and criminal courts in situations where there has been no (or little) physical violence. In these circumstances, some victims (due to desperate financial circumstances) have remained living under the same roof as the former partner, thus increasing the risk of ongoing family violence for themselves and their children.
“It is imperative that victims obtain specialist legal advice to explore the various options available,” said Streeterlaw’s Family Law Accredited Specialist Simone Green. “This could include an exclusive occupation order or an award of spousal maintenance.
“Victims of family violence are often in a much weaker position to negotiate issues with their former partner, who often maintains psychological power over them. For this reason, mediation is not compulsory prior to making a parenting application in the Family Courts for anyone claiming family violence.”
Court’s approach to shared parenting time
Given that it is generally the Court’s preference for children to spend time with each of their parents, it is likely that the Court will allocate contact time with the other parent. The exception is when there is evidence suggesting that the risk of violence towards the child is too great.
When making parenting orders or a parenting plan, reducing or eliminating face-to-face changeovers is extremely important. This can be done by:
- Engaging a contact service to provide supervised contact (in severe cases)
– Separate drop off and pick up times can be arranged to ensure safety, although a major consideration is the availability and cost of this arrangement
- Engaging a contact service to facilitate changeovers only. Again, the availability and cost of this arrangement must be considered
- Engaging a third person to facilitate changeovers. This is not an ideal long-term solution as it is dependent upon the person’s availability and commitment
- Effecting changeovers directly from daycare or school (if overnight) and returning to day care or school or other extra-curricular activity
- Effecting changeovers in a public place where there are likely to be witnesses – eg. a coffee shop.
When attending Court events, a family violence victim may make arrangements directly with the Registry for a special plan regarding entry and exit to the Court and the provision of a safe room for waiting within the Registry. In some circumstances, the Court may permit an appearance via electronic communication, such as telephone or video link, (this is usually in circumstances where being in the same room with a former spouse would cause severe emotional distress).
In property proceedings, it may be possible to claim damages for family violence. This is an additional financial adjustment awarded to the victim in circumstances where their ability to work or make contributions has been minimised due to the violence.