Safety always comes first. Understanding the ways in which you can protect yourself from harm or abuse, particularly during separation, can make your experience of the family law system vastly different. If you feel safe and confident throughout your case, you will find that making decisions that protect your children and yourself moving forward will become easier and more productive.
What types of protective restraining Orders exist and how do they work?
Currently, there are multiple sources of law, both at Federal and at the State level that are important in controlling a person’s behaviour.
Apprehended Domestic Violence Orders
If you or the children have been threatened with or exposed to family violence, the Local Court can make an order designed to keep family members apart and, if the order is disobeyed, a criminal offence is committed by the disobedient person and punished in the same court. Such Orders are called Apprehended Domestic Violence Orders.
If you are faced with a direct threat of family violence, you should contact the Police to make a compliant. If there is a sufficient risk of harm, the Police will apply for an Apprehended Domestic Violence Order for your protection.
Exclusive Occupations Orders
Women who have experienced months or years of family violence in the lead up to the separation can be faced with an immediate and intense dilemma of how to secure safe accommodation for them and the children (if any).
You may be eligible to seek an injunction for the exclusive use or occupation of the family home. An injunction is a Court Order that restrains a person from doing something. In this case, an exclusive use order would restrain your spouse from living in or disturbing your enjoyment of the family home. Such injunctions are provided by the Family Law Courts. The police are not involved in this process.
As you would imagine, the Courts are very cautious when making such Orders, as the consequences for the spouse being booted out of their home are serious. Whether you will be successful in applying for an Exclusive Occupation order depends on the individual circumstances of your case.
Before obtaining legal advice, you should ask yourself the following questions:
- Are you struggling financially, whilst your spouse is earning a comfortable income?
- Can you be adequately housed elsewhere? And is there money available (either yours or your spouses’) to provide that accommodation?
- Do the children live with you?
- Will forcing your spouse to leave the family home cause significant hardship to them or to the children? Or is the application being made to benefit and protect the children?
- Is there a history of family violence?
- For whom is it less convenient to have to live away from the matrimonial home?
- What would be in the best interest of the children?
- Who owns the family home?
- Would an ADVO be an appropriate alternative to an order for expulsion?
- If you continued to live in the family home together, would your spouse be in a position to intimate or harass you into agreeing to a property settlement this unfair?
Essentially, the proposed Order must be necessary having regard to your needs, both physical and emotional, and the needs of the children for whom you are responsible.
What is Family Violence?
People often do not realise how broad the definition of family violence really is. It is much broader than physical violence, and expands to financial control and damage of property in the presence of you and/or the children. If you or your children are victims of family violence, it is important to speak up.
The legislative definition of family violence is “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.”.
If your spouse has engaged in any of the below behaviour towards you, this is family violence. Such behaviours include:
- An assault.
- Sexually abusive behaviour.
- Repeated offensive taunts.
- Intentionally damaging property.
- Intentionally causing death or injury to an animal.
- Unreasonably denying you financial freedom or control.
- Unreasonably withholding basic financial support when you are entirely or mainly dependent on your spouse for financial support.
- Preventing the you from making or keeping connections with your family, friends or culture.
- Depriving you or the children from their liberty.
If the behaviour relates to a child, the definition of family violence is expanded even further. A child is exposed to family violence is the child sees or hears family violence or otherwise experiences the effects of family violence. This includes:
- Overhearing threats.
- Seeing or hearing an assault.
- Comforting or providing assistance to a member of the child's family who has experienced family violence.
- Cleaning up a site after an incident of family violence.
- Being present when police or ambulance officers attend an incident.
If you or the children are the victims of family violence you should let us know as soon as you can. We can help you by putting you in touch with various support services to help you create a safe environment for yourself and the children.
How do you get a restraining order put in place?
Apprehended Domestic Violence Orders
Contact the police as soon as possible after the incident of violence. Do not try and dismiss or explain away your fears – they are important. Your primary concern is to protect the children and yourself. By informing the police of your concerns as soon as possible, you will increase your chances of having an order made in your favour.
Exclusive Occupations Orders
These are Orders which issue from the Family Law Courts. To get an exclusive occupation order put in place, you should contact your family law lawyer. An application, with supporting affidavit material will be required. These applications take time, and the sooner you get legal advice the sooner you will have safe accommodation for yourself and your children.
Maybe you should have both?
Should your spouse pose an extreme risk, it may be advisable to obtain both an Apprehended Domestic Violence Order and an Exclusive Occupations Order.
What happens if my spouse ignores the restraining order?
Apprehended Domestic Violence Order
Your spouse will not have a criminal record if an Apprehended Domestic Violence Order is made against him or her. However, if your spouse does something that the ADVO says he cannot do, he will be in breach of the ADVO.
If your spouse breaches an existing ADVO the police can arrest and charge him or her with the criminal offence of contravening the AVO (breaching the AVO). They could also be charged with other criminal offences, such as assault or malicious damage. They will be required to go to Court to defend the criminal charges. Knowingly breaching an ADVO is punishable by a maximum penalty of two years in prison and/or a fine of $5500.
Exclusive Occupations Orders
Depending on the specific terms of the Order sought, the exclusive occupation order is breached if your spouse refused to move out of the matrimonial home by the nominated deadline, or later attends the property and refuses to leave.
There are a number of consequences that could result from a breach, specifically:
- The behaviour of your spouse will be relevant to the determination of parenting orders at the final hearing; and
- A police officer may arrest your spouse in certain circumstances.
Where the restraining orders were made for your personal protection, or the protection of your children, a police officer may arrest your spouse without a warrant. This will only occur if the officer believes on reasonable grounds that your spouse has breached the restraining order by:
- Causing or threatening to cause bodily harm to you or the children; or
- By harassing, molesting or stalking you or the children.
A power of arrest attaches automatically to injunctions made for the personal protection of a person under certain provisions of the Family Law Act.
Are there other types of protections for Mother’s in abusive relationships?
There are simple ways to ensure that you are protected throughout the separation process, and negotiation of property and/or parenting settlement. These include:
- Make sure you have a friend or adult family member present when you expect to come into contact with your spouse (for example, if he or she attends the home to collect items);
- Avoid situations where you would be alone with your spouse;
- Use your solicitor to establish contact with your spouse, should direct contact between you and your spouse lead to conflict;
- When dropping the children off, or picking them up, from your spouse, arrange for the changeover location to be somewhere independent and neutral. Perhaps a park or café.
- Ask your solicitor about existing welfare and support programs. These are free, and assist you in the development of safety plans to suit your circumstances.
- Ask your solicitor about safety programs within the Court. The Family Law Courts are very conscious of the potential risks associated with abusive relationship, and offer a comprehensive security detail to assist you in your Court appearance should you be required to attend Court.
Talk to us about your protection options.
Your safety and the safety of the children is paramount. Trust your gut feeling. If you feel that you are at risk, contact a solicitor or the police. We can help you take the next step. In high conflicting relationships, negotiating a property or parenting settlement can be a lengthy process, and it is important that you act quickly.