Divorce is always emotional, stressful and difficult.  When there are children involved, the end of a marriage is even more complicated. The most difficult divorces, however, are those that involve allegations of domestic violence and child abuse.

Violent partners often escalate abuse when victims try to escape the situation. There are resources and supports available for victims of domestic violence and child abuse, and there are legal protections in place to protect the safety adults and children during the process of ending a marriage that has turned violent.

If  you or your children are being subject to threats, stalking, or physical abuse of any kind, it is important to get legal help from a strong advocate who can assist you in understanding victim’s rights during a divorce with domestic violence and child abuse.

Victims Rights in a Divorce with Family Violence

 

Victims have the right to protection from abuse committed by a spouse, parent, or close family member.  When abuse occurs, it can affect how a Family Court makes decisions on the relationship a child will have with each parent after a marriage is over.

In divorce law, Victims who are subject to abuse may obtain an Apprehended Violence Order (AVO).  You may obtain an AVO in one of two ways:

  • You may contact the police, who can make an application for an AVO on your behalf.
  • You may go to your local court and make an application for an AVO. Court staff are required as a matter of law to permit you to make an application.

When you apply for an Apprehended Violence Order, the defendant accused of the alleged abuse will also be served with the application.  If the defendant consents to the AVO, the court will enter the Order. A defendant may consent to the Order without admitting wrongdoing.

If the defendant does not consent, a hearing will be scheduled and a court will make a decision on whether to enter the Order after the hearing. Upon your request, the court may make an Interim Order (a temporary Order) to protect you until the hearing occurs. You typically must offer the court details on why the Interim Order is necessary.

The magistrate may ask both you and the defendant to supply written statements to the court by a certain date, and your matter will be listed for mention to determine if you comply. Failure to comply can result in dismissal or you may be ordered to file an outstanding statement. If the defendant does not comply with the court’s direction, the defendant may lose the opportunity to give evidence at the hearing.  Provided you both comply, the matter will be listed for a hearing you must attend.

If the defendant does not come to court on the appointed hearing date or have a good reason for not coming to court, the court may enter an Order in their absence.  If both parties come to court, a hearing occurs and evidence is presented based on each party’s written statement. You will first present your case if you applied for the AVO and you can be questioned by the defendant or defendant’s solicitor. The defendant will then present evidence and you have an opportunity to ask questions of the defendant and their witnesses. If the police made the application, the police prosecutor will ask questions.

If the magistrate believes there are reasonable fears for your safety, the AVO will be made. There are three conditions the AVO always prohibits including:

  • Assaulting, harassing, molesting, threatening, or otherwise interfering with the Protected Person.
  • Intimidation of the Protected Person.
  • Stalking the Protected Person.

When you seek an AVO for yourself, these protections will also apply to your children.  Additional prohibitions may also prevent the defendant from approaching you, entering places where you live or work, or damaging property.

The court can make a Property Recovery Order at the same time as the AVO to allow you or the defendant to get personal property that may be on the other party’s premises.

The AVO does not mean the defendant has a criminal conviction, but it does mean the defendant cannot continue to approach and abuse or threaten you or your children.  The Family Law Act 1975 also establishes that the Family Court must ensure Parenting Orders it makes are in line with an Apprehended Domestic Violence Order applicable to your family.

A Parenting Order is entered by the court during a divorce to establish parenting arrangements. It is different from a parenting plan you and your spouse create on your own to divide up custody. A Parenting Order is appropriate when no agreement can be reached and/or when you want a legally binding Order.  In cases where child abuse or domestic violence occurred, securing a Parenting Order is advisable to try to ensure the court restricts access to your children as necessary to prevent violence.

You can typically apply for a Parenting Order only after getting a certification showing you have been to family dispute resolution. However, this requirement does not apply if there has been child abuse, domestic violence, or family violence or if you feel you or your children are at risk. When applying to the court for a Parenting Order without first getting certification, the court will agree to move forward with creating a Parenting Order only if your fears of violence or allegations of abuse are credible.

The Parenting Order will detail where your child lives, the amount of time the child spends with each parent, and division of parental responsibility. Two main considerations weighed by the Family Courts when entering a Parenting Order include the benefit to the child of having a meaningful relationship with both parents, and the need to protect children from abuse, neglect, family violence, and physical or mental harm.

Owen Hodge Lawyers will help you apply for an AVO, seek a Parenting Order, and take other steps necessary to end a marriage and protect yourself and children from domestic violence. We have also helped many people through this difficult time in their lives and we will assist you in moving forward to begin a better future. Contact us today at 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation with our experienced family lawyers and learn more about how we can assist you.