Violence in Family Law
Family violence is a significant and growing concern in Australia, and it plays a role in family law matters, particularly in cases involving separation and divorce, child custody, and property settlements.
The Australian government and the legal system have made considerable efforts to address the issue and to provide protection to those affected by family violence.
What constitutes family violence?
Family violence in the Australian context includes physical, sexual, emotional, psychological, and economic abuse, as well as threats and coercive behavior, that cause a family member to fear for their safety. It can occur between current or former partners, spouses, or family members.
How does the legal system deal with violence in family law?
The Family Law Act of 1975 was amended in 2012 to better address the issues of family violence.
It recognises the importance of ensuring the safety of all parties involved in family law proceedings, including any children, and has identified a number of ways in which matters concerning family violence should be handled differently, or tools that can be used to help those involved.
Some of these processes or tools include:
1. Mandatory Reporting
Family law professionals, such as lawyers and court personnel, are obligated to report any suspicions of child abuse or family violence when they arise in legal proceedings.
2. The use of AVOs and Domestic Violence Orders
In cases of family violence, individuals can apply for protection orders, commonly known as Domestic Violence Orders (DVOs) or Apprehended Violence Orders (AVOs) depending on the state or territory I which they reside. They can also be applied for on behalf of a child who is at risk of harm in a family law dispute.
These orders are intended to protect victims from further harm and prohibit the perpetrator from approaching or contacting the victim. If an AVO is granted, the person who is the subject of the order may be prohibited from doing certain things, such as contacting the person who needs protection, going near their home or workplace, or being in possession of firearms. Not abiding by the rules of the AVO, or ‘breaching’ an AVO, is a criminal offence and can result in penalties such as fines or imprisonment.
3. Exemptions from Family Dispute Resolution
Family Dispute Resolution (FDR) is a negotiation process in which a qualified Family Dispute Resolution Practitioner (FDRP), who is independent of the parties, helps people to resolve some or all of their disputes arising from separation or divorce. For the majority of parenting matters, it is mandatory for the parties to try and reach an agreement through FDR before an application can be filed with the Court.
However, FDR may not be suitable in cases involving family violence, and exemptions exist for those who feel unsafe participating in the process. If you or your family have experienced, or are at risk of, family violence or child abuse, you may seek an exemption from the usual requirement to attempt Family Dispute Resolution before going to court for parenting orders.
4. Focus on the best interests of the child.
Research suggests that shared parenting is good for children when parents can cooperate and there is low conflict. However, in situations where there is high conflict, especially family violence, the court will always prioritise the best interests of the child and will assess the impact of family violence on the child's well-being and safety.
Special orders may be made to protect the child from harm and in some cases, especially those involving complex family violence issues, the court may appoint an Independent Children's Lawyer to represent the child's interests and ensure their safety.
It's important to note that family law is a complex and evolving area and the response to family violence continues to develop. Individuals involved in family law matters are encouraged to seek legal advice and support from professionals experienced in this field to ensure their safety and the best possible outcomes for all parties. If you would like to discuss your situation with CDQ’s experienced family law team contact us today on ph: 02 8556 0130. If you are in immediate danger, or risk of harm, please call 000 in the first instance.
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