Separating as a result of domestic violence

29-November-2010 Family Law By Simone Green

Domestic family violence is a crime. What should you do and what you should take when separating?

Separation can occur by agreement or can occur as a consequence of one party arbitrarily denying the other party access to the primary residence. The law relating to occupation as “joint tenants” of a house can be complex with many unique and particular factual issues to be considered by a judge who is asked to rule on a dispute.

Often in separation there will be accusations of domestic violence, abuse or threats. Often it is violence against women but not always. Domestic family violence  may be considered as criminal conduct. An application by one party against the other for an apprehended domestic violence order (ADVO) can prevent one party from approaching or entering the home.

Separately and in addition to right for a party to make an application for an ADVO a party may make an urgent application to a Court with Family Law jurisdiction for a “sole use and occupation order” which would be a short-term exclusion order that one party have exclusive occupancy of the home until a final property settlement or judgment of the court has been determined.

Family violence and domestic violence help

Family violence is any physical violence, threats, emotional and psychological abuse and includes damaging property.  Violent behaviour is unlawful and in addition to protections and the family law, there may be protections under the criminal regime.

If you are the subject to, or a party to family violence, call the police – 000.

The police have the power to arrest the offender, search for and remove weapons.  If the offender has a gun (or owns a gun) the police may remove it.  The offender may be charged with a criminal offence and the police may apply for an apprehended domestic violence order on your behalf.

If the police do not make an application for a court order you may approach the duty Magistrate or the Registrar at your Local Court to assist you make an application.

As an adult you may apply for an order that protects you and/or your children from family violence. The first instance should be the Domestic Violence Liaison Officer at your Local Police station.

Are you the one leaving your house in separation?

If you are leaving your house, either planned or in circumstances of urgency such as being a victim of domestic violence, be sure that you take the following:

  • personal documents – for example bank / cheque books, passports, marriage certificates
  • any items of sentimental value
  • things that you need for yourself and your children including change of clothing, school uniforms, school bags, books, toys, toiletries

If you are in personal danger from domestic abuse – remove yourself and ensure that you are physically and emotionally safe and those in your care are also removed from threats or risk of family violence.

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