16 Apr 2014

Going through a divorce can be traumatic enough in and of itself.  If it is coupled with family violence there can be disastrous consequences for victim and for any children involved. 



According to the Australian Bureau of Statistics [(2006) Personal Safety Survey] approximately 1 in 3 Australian women have experienced physical violence during their lifetime, nearly 1 in 5 women have experienced some form of sexual violence and nearly 1 in 5 have experienced violence by a current or previous partner.  


What is “family violence”?


Section 4AB of the Family Law Act 1975 considers the definition of family violence, as follows:



  1. For the purposes of this Act, family violence means 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.

  2. Examples of behaviour that may constitute family violence include (but are 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 otherwise have 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. 

 

Section 4AB also gives a definition of the circumstances under which it will be determined that a child has been exposed to family violence.

 

For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.


  1. Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:




    • overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family, or

    • seeing or hearing an assault of a member of the child’s family by another member of the child’s family, or

    • comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family, or

    • cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family, or

    • being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.



The broad definition contained in Section 4AB of the Act is not exhaustive.  Even though conduct may not be specifically mentioned in the definition, the courts (through section 60CC(3)(m) of the Act) may still take such conduct into account. 


 


What can you do if you are facing family violence?


There are many support services available if you are experiencing family and domestic violence.  It is important to remember the following:


·         if you are in danger, call the Police on 000


·         be aware of your options – contact the Domestic Violence Legal Unit on 1300 650 579


·         be prepared and ready to leave at a moment’s notice – have your and your children’s documents together and keep them in a safe place outside the home


·         speak to a domestic violence counsellor to review your safety plan


·         make sure you are aware of accommodation options in your area, such as refuges


·         seek legal advice about obtaining a Violence Restraining Order (VRO) against your partner to protect yourself and/or the child.


 


This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

 

 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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