Family violence unfortunately does occur, and parties who are victims need the legislative support mechanisms that exist both at a federal and at the state level. The state, deals with apprehended violence or intervention orders, while family law is the domain of the Commonwealth, which can issue an injunction or restraining order. If there are inconsistencies between a state and federal order, the federal order will be the one that must be followed.
All State family violence laws until relatively recently, covered only heterosexual couples. The situation has changed, and legislative instruments have reflected this by protecting same sex relationships, de facto couples, and a broad range of family members outside of marriage.
What is family violence?
New South Wales (Crimes (Domestic and Personal Violence) Act), Victoria (Family Violence Protection Act) and Queensland (Domestic and Family Violence Protection Act) all have laws that can be used for anyone who is suffering from domestic violence.
Family violence is defined in a similar manner at all levels of government in Australia, covering a broad range of unacceptable behaviours. Using the definition in s 4 of the Family Law Act (FLA) as a gauge, family violence means:
"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."
The s 4 definition of family violence is an objective test, and New South Wales, Queensland and Victoria’s provisions are similar in nature to the FLA.
Who can make a complaint of family violence?
The state and federal Acts define a family member as a current or former spouse, a domestic partner, a child of a person or a spouse, or any other relative. The category of people covered in family violence legislation is broad and covers people who are, or were in intimate relationships, regardless of whether or not they lived with each other or not. It should also be noted that family violence legislation also protects parties that were engaged in a sexual relationship, no matter how brief the liaison.
What if a victim is under the age of 18?
In Queensland’s Act, a person under legal age can make a direct complaint in relation to family violence and can take out a protection order against their partner. However, a protection order cannot be made against a parent in the Queensland Act, but there are provisions available in the FLA.
In Victoria a complaint can be brought by a person under the age of 18, but leave of court is required. However, a complaint can be made by a parent, or any person a parent has consented to make a complaint on behalf of the child.
If an individual under 18 has made a complaint, the court must be satisfied that they’re aware of the impact of the intervention order may have on their situation.
What orders can be made?
Protection orders (QLD), apprehended violence orders (NSW), and intervention orders (VIC) all require that the party who an order is taken out against, behave appropriately to the aggrieved party, and not act violently towards the individual. It should be noted, that the FLA can only be used in the case where the parties are married, or had been married, while the state’s family violence orders cover a far broader range of intimate relationships.
How to make an order to prevent family violence
There are a number of ways that a family violence order can be made. If there has been an instance where violence has occurred, and the police have been called, if the matter is pressing, the police can make an immediate order on your behalf. However, the most common way to obtain an order is to go to the local Magistrates Court, community legal centre, or a welfare service provider who can help. Also, any order made in Australia and New Zealand protects individuals throughout both countries. Finally, if there is already an order in place relating to access to children for example, the courts may be able to vary the order that may lessen the impact of the party suffering from family violence.
There are numerous issues that individuals need to address when dealing with family violence. For anyone that needs assistance, please seek legal help.