How does the Family Law System deal with Violence?
The Norton Law Group’s team of specialist family lawyers in North Sydney, Sydney CBD and Leichhardt are experienced at navigating the complex role family violence plays in the Court system.
The Federal Circuit and Family Court of Australia provides that the significant proportion (80%) of family law proceedings involve allegations of family violence. The family law system has a central role in identifying and responding appropriately to allegations of family violence.
The Family Law Act 1975 (Cth) introduced a legislative definition of family violence 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.”
The Family Law Act 1975 (Cth) provides examples of behaviours constituting family violence including (but not limited to):
- An assault; or
- A sexual assault or other sexually abusive behaviour; or
- Stalking; or
- Repeated derogatory taunts; or
- Intentionally damaging or destroying property; or
- Intentionally causing death or injury to an animal; or
- Unreasonably denying the family member the financial autonomy that he or she would have otherwise had; or
- 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; or
- Preventing the family member from making or keeping connections with his or her family, friends or culture; or
- Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
It is important to note that the above list is not considered exhaustive, and it is not inevitable that other behaviours meeting one of those descriptions is going to be considered family violence.
The Federal Circuit and Family Court of Australia is guided by the following principles in responding to allegations of family violence:
- Safety is a right and priority for everyone.
- Family violence affects everyone in a family.
- Family violence can occur before, during, and after separation. It has the potential to affect an individual’s ability to make choices about their family law matter, including to initiate legal proceedings, participate in court events and/or achieve settlement of their dispute through negotiation.
- Family violence has immediate and longer-term impacts on children.
Court Appearances
The Courts are obligated to take prompt action in relation to allegations of child abuse or family violence in parenting matters, by prioritising the safety of children and vulnerable parties. The Courts ensure families receive appropriate targeted early intervention and assistance in patenting matters by collecting information through a Notice of Child Abuse, Family Violence and Risk.
In addition to this, the Courts are guided by principles to ensure safety for all court events. The Courts provide assistance to parties with fears for their safety through a number of measures including staggered arrival times, separate entry and exit points, security guards and safe rooms. If you have fears about attending a court appointment or hearing, you may request to attend electronically.
AVOs and Parenting Orders
The Courts must be informed of any AVOs or allegations of family violence when applying for parenting orders. It is important to consider how an Apprehended Violence Order (AVO) may affect parenting orders if inconsistencies arise. For example, in circumstances where an AVO prevents the defendant from going to the protected person’s property and the parenting order states that the defendant must pick up the children from the protected person’s home. The Family Law Act 1975 (Cth) provides that where a parenting order is inconsistent with an existing AVO, the AVO may be deemed invalid.
It is important to note that there are differences between parenting orders and parenting plans in which parenting plans are not considered legally enforceable agreements and, therefore, if inconsistencies arise between a parenting plan and an AVO, the AVO will be given preference.
If you are intending on separating and are experiencing current or historical family violence, we recommend reaching out to our experienced teams of family lawyers in North Sydney, Sydney CBD or Leichhardt to ensure that you are aware of the processes, safety mechanisms and probable outcomes, given the stressful and complex nature of these situations. The Norton Law Group can provide clarification of the relevant law and its relation to your individual circumstances.
