Domestic or family violence is a serious issue, and if a party to a relationship is fearful of their own safety, or that of their children, then regardless of whether the Family Court or Federal Circuit Court are involved, the police should be called.
What is domestic or family violence?
Domestic violence occurs where one partner in a relationship uses his or her violent and/or abusive behaviour in order to control and dominate the other partner. The behaviour is either directed towards the spouse or towards the children (in which case it becomes known as 'family violence'). Such behaviour can include physical abuse, damage to property, sexual abuse, verbal abuse, financial abuse, harassment or the threat of any of the above.
The Family Law Act 1975 defines 'family violence' as:
'conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.'
What options are available when domestic or family violence occurs?
The Domestic and Family Protection Act 1989 deals with domestic and family violence issues. The Family Circuit Court can make a domestic violence order for the benefit of the aggrieved party that can either be temporary or permanent. A temporary protection order is an order for a short period of time until the court decides whether to make a permanent protection order in favour of the aggrieved. A Protection Order can only continue in operation for a maximum of two years.
An application for a protection order can be made by the aggrieved, an authorised person, the police, or a person acting for the aggrieved under another Act (such as the Family Law Act 1975).
A Domestic Violence Protection Order not only protects the aggrieved, but also relatives and children of the aggrieved. Such individuals must be specifically named in the Order to be protected. The court will make an order in favour of the aggrieved if the following conditions are satisfied:
- The respondent has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and
- The person is either likely to commit an act of domestic violence again or if the act of domestic violence was a threat, is likely to carry out the threat.
The orders may include requirements that the respondent:
- Be of good behaviour and must not commit acts of domestic violence or associated domestic violence;
- Comply with any other conditions imposed by the court, such as conditions whereby the respondent must remain at least a certain distance away from the aggrieved, he or she must not hold any weapons and must give up any weapons in his or her possession, etc.
The police have considerable powers under the domestic violence legislation, including the power to take the respondent into custody using such force as is reasonable, if they feel that the aggrieved is in danger of being harmed by the respondent or a person's property is in danger of being damaged by the respondent. The respondent who is taken into custody may be held in custody for a maximum of 4 hours, so it is essential that an application for a protection order naming the respondent be heard as a matter of urgency.
For additional information, please contact our Family Law team.