Author: Vanessa Mathews

If you fear violence, you should seek advice immediately.

You cannot be forced to leave just because the property is not in your name. If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave.

Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.

It may be possible to negotiate a settlement with the applicant by writing a letter or attending family dispute resolution.

Where there is family violence or risk of harm to the child negotiation is not advisable.

The Court will only hear child related proceedings if an applicant has attended family dispute resolution and obtained a certificate. A certificate is not required where child abuse or family violence is involved.

As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.

If there has been violence in the relationship, this can affect the division of property. This is due to the possibility that the effects of violence may have limited the ability of a party to contribute.

Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the ‘additional factors’.

Couples who have a dispute about parenting arrangements are required to attend Family Dispute Resolution and make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children.

This requirement does not apply in certain circumstances, such as where there is urgency or in cases involving child abuse or family violence.

An application may be made to the Court to either change the conditions of or remove the Apprehended Violence Order. This application may be made by the protected person, the defendant, a police officer or a person acting on behalf of the protected person.

It is a criminal offense to knowingly breach an interim or final Apprehended Violence Order. The maximum penalty on conviction is a $5,500 fine or two years imprisonment or both. Where the breach itself is an act of violence and the defendant is at least 18 years of age, the defendant will likely be sentenced to a gaol term.    

A defendant may object to an Apprehended Violence Order, in which case, the matter will be adjourned for trial at a later date. It is common that an interim Apprehended Violence Order will be issued until the trial.

You can object to an Apprehended Violence Order being made against you and have the matter adjourned for trial at a later date. Under these circumstances, an interim AVO will be issued until the trial date.

Whilst many apprehended violence applications are warranted some are not. If you have been served with an application that you consider to be unwarranted you should ask for a conference. Applications without proper basis can be dismissed by the Court at the hearing.

An Apprehended Violence Order can be initiated in the form of a complaint by either the protected person or by a police officer acting on behalf of the protected person.

Any person over the age of 16 can make a complaint for an Apprehended Violence Order by registering their complaint at the Magistrates Court.

If a child is not part of an affected family member’s (the person who needs protecting) application:

• a parent or guardian can apply for an intervention order if the child is under 18 or
• the child can apply for an intervention order if they are 14 or older and the court agrees.

In these cases the matter is usually heard in the Children’s Court.

In certain cases, the police are obliged to apply for an Apprehended Violence Order. Circumstances for police application for apprehended violence orders include:

• family violence situations,
• stalking/intimidation or
• child abuse.

This police obligation applies unless the person is at least 16 years of age and either the protected person intends to make a private complaint for an Apprehended Violence Order or the police believe there is a sufficient reason not to make the complaint.

Children who are exposed to family violence are particularly vulnerable. Family violence can have a serious impact on a child’s physical, psychological and emotional well-being.

If you are applying for an intervention order, you will be asked if you believe that your safety or the safety of your children is threatened by the respondent (the person the application is against). If you fear for your children’s safety, you can include them in your application.

You can also ask the magistrate to change (vary) or suspend a parenting order. You can ask the magistrate to stop the children:

• living with the respondent,
• spending time with the respondent or
• communicating with the respondent.

If a child is not part of an affected family member’s (the person who needs protecting) application:

• a parent or guardian can apply for an intervention order if the child is under 18 or
• the child can apply for an intervention order if they are 14 or older and the court agrees.

In these cases, the matter is usually heard in the Children’s Court.

A magistrate must consider if there are any children who have seen or heard the family violence. Therefore, the magistrate will ask the affected family member or respondent if they have any children and how the family violence has affected them.

A magistrate can decide to include a child on the final order, even if the applicant did not name them in the application. The child’s safety is the most important consideration.

If the magistrate decides that the child support applications need to be protected, the intervention order may say that the respondent can have no contact with the child.