Family violence can refer to any incident where a person uses violent, threatening or any other type of harmful behaviour to scare or control a family member. It can include physical violence or abuse, sexual violence and abuse, emotional and/or psychological manipulation or abuse, economic abuse, social abuse or violence and threatening, controlling, coercive, terrorising or dominating behaviour of physical, emotional, psychological, sexual or any other manner.
Behaviour like stalking, harassing and heckling, causing property damage, causing harm to an animal or any action that may not directly hurt a family member but will affect them in a detrimental way also falls under family violence. If there is a child that is in the vicinity to witness or experience family violence or is somehow affected by it will also fall under the purview of family violence victimisation.
Let us look at a few examples of what qualifies as family violence.
Physical violence can be hitting, slapping, punching, pulling and pushing, kicking and even head-butting and choking. A person can even use an instrument to cause you physical harm too, like hitting you with sticks, whips or utensils, throwing objects at you or pushing heavy objects on you.
Sexual abuse includes sexual harassment, assault and rape, forcing or coercing someone to perform acts of a sexual nature with the enforcer or another person that one or both have not given complete and willing consent to, forcing someone to watch pornography or join in the process of its making, forcing someone to watch sexual acts of others, forcing someone into incestuous, paedophilic or bestial relationships and so on.
Under emotional and psychological abuse falls gaslighting and manipulation, convincing them that they are alone and have no other place to go, making them feel shame for something like their gender, sexuality, body, etc., curtailing their freedom, narcissistic behaviour meant to demean or distress someone and more.
Economic abuse consists of controlling someone’s finances, forcing someone to be financially dependent on you, forcing someone to work or not work, making someone give you their money, forcing someone to take a debt or give a dowry and so on.
Social abuse can be forcing you to cut contact with your family, your community or the rest of society, making you look bad in front of them, using the excuse of any social norms to control one’s actions, making them feel shame for breaking a social rule, forcing them to follow certain social dictates, using caste, religion and such social constructs to shame or manipulate someone, etc.
Some examples of threatening or controlling behaviour include threats of actions to harm yourself or someone they love to make them listen to you, bullying, blackmailing, threatening to out someone’s gender or sexuality, controlling their lifestyle, forcing someone to get married, withholding means of basic survival, disability aids or essential medications and using medications to drug someone and make them do what you want.
In today’s age of technology, any kind of harmful or intimidating behaviour enforced via electronic devices like phones and computers or on social media or any other means of communication on the Internet is also considered under family violence if said behaviour has the same effect on the victim as other established forms of family violence.
When you are dealing with a family violence case, it is important to know which relationships qualify as family relations in the order. They are:
A family violence intervention order is a legally enforced document passed by the Court to provide protection to victims of family violence, including their children and property, from the perpetrator. The order prohibits the accused from committing further actions of family violence, failing which they will receive harsher legal treatment. While the order itself falls under the purview of civil law, continued offences can lead to the perpetrator being charged with criminal charges.
This has a different name in different states and territories of Australia. In the Australian Capital Territory and Tasmania, it is called a family violence order, in New South Wales, it is known as an apprehended domestic violence order, in Northern Territory and Queensland, domestic violence order, in South Australia and Victoria, intervention orders and finally, in Western Australia, family violence restraining orders.
Anyone can apply for a family violence order if they have experienced any sort of domestic violence from a member of the family. If children are involved who live under the care of an adult, the adult can apply for an order on behalf of the child or children. If the person is not a minor but whose decision-making ability is impaired for any reason, their carer or guardian can apply for them too. That person is called a litigation guardian.
Moreover, a police officer can also apply on the behalf of a victim of family violence. There can be two scenarios here. The first is that the victim is unable to apply for the order themself due to safety or other reasons. The other is that even if the victim is unwilling to apply for the order themselves, the police officer can go against their will and apply for the order because he is more responsible for the safety of the citizen at that moment.
There are two ways you can apply for a family violence order in New South Wales. The first is by calling the police and asking them to apply for the order on your behalf. If you are in immediate danger, you can also ask the police to pass a provisional order for you. The provisional order is effective immediately from the time it is served to the defendant. This automatically translates to an interim order when the application goes to the court for consideration.
You can also apply for a family violence order yourself at the local court by visiting in person or calling and giving the details of your situation to a registrar who will prepare the application on your behalf and then, visiting the court briefly to submit the application. You will be given a date for the court hearing on which you and the defendant must present yourselves at the court.
You must also consider the possibility that the court can refuse to accept your application if it does not see any reasonable cause for it, i.e. if it feels that the cause for the application is not sufficient or serious. The court may suggest mediation in this case instead of going for a family violence order. However, that should not happen in cases where the police applied for the order on your behalf.
If the police made the application for you, you will not need a lawyer. However, if you made a private application, you can consider getting legal aid to support you during your case. However, not everybody will be eligible for this. If you are, you will be able to get a lawyer to help you out.
On the day of the court hearing, even if the defendant does not attend, the hearing will go forward and the order will be passed if the defendant has not provided a good reason for their absence. However, if they have provided a reasonable cause for their absence or the police have not been able to serve the application to the defendant yet, the hearing will be postponed. In the meantime, if you or the police believe that there is sufficient cause for you to fear for your safety, they can ask the court to provide an interim order, which will protect you until the final order is served.
If the defendant does come to the hearing, two things can happen. They may agree to the order cordially without accepting the allegations you made, in which case, a consent order would be passed. This usually can be done within the same day. However, there is also the chance that the defendant will refute your accusation and disagree with the order. If the magistrate feels that there is sufficient evidence that the defendant did indulge in actions that qualify as family violence, then, even if they disagree with the order, the magistrate will pass the order.
However, if that is not the case, the case will be adjourned and the magistrate will set a date for a contested hearing. For this, the magistrate will ask both the applicant and the defendant to submit written statements within a certain date to be presented as evidence on the date of the hearing. If the order was applied for by the police, they will take on the responsibility of preparing these statements. Once the court has confirmed that the statements have been submitted, a new hearing date will be decided. The applicant must attend court on this date; otherwise, the case may be dismissed. However, if the defendant does not attend, the court can go ahead and pass the order.
The written statements are usually the only evidence used for the hearing; however, the court may give permission to present other evidence, including verbal, if it feels it is necessary for the case. The court may also accept evidence from the police in the form of audio or video recordings of the incident that was cited as the cause for the application for the family violence order. The applicant’s side will be heard first in court. The defendant or their legal representative can cross-examine your statement and the evidence provided by asking questions to the applicant and any witnesses they may have.
The defendant’s case will be presented next. Just like before, the applicant or their lawyer can cross-examine their statements and the evidence they provided by asking questions to the defendant and any witnesses they may have brought. After hearing both sides, the magistrate will consider the case and decide whether to pass the final order.
If the order is successfully passed, it will have certain conditions that the defendant will have to follow in their interactions with you and anyone living in a domestic relationship with you. These include prohibitions to assault or threaten you, stalk, harass or intimidate you or damage or destroy any property or animal that belongs to you, whether it be intentionally or recklessly.
The above are the basic and mandatory conditions for the defendant; more may be included based on the circumstances of the case. For example, prohibitions to approach you, contact you, come in your proximity, find you, keep you under surveillance or attempt to do any of these, go in the places you live, work or go, even if in your absence, interact with you while under the influence of alcohol or drugs and so on. If the defendant tries to get someone else to do anything prohibited by the order on their behalf, that will also qualify as a breach of the order.
Failure to follow the conditions of the order will cause the matter to escalate from a civil to a criminal case. That means the defendant can be charged with a criminal offence if they continue to repeat the actions that qualify as family violence or do not follow the stipulations of the order, thus breaching it. If a property recovery order has also been served, you or the defendant would be allowed to retrieve personal property from the residential, professional or other premises of the other, often accompanied by the police for safety reasons.
A family violence order comes with a certain period in which it will be in effect. After the order expires, the court may decide to extend it if it feels that the applicant is still in danger of experiencing family violence from the defendant.
In a family violence order, the term ‘affected person’ is used to denote the person who has been affected by, i.e. who is the victim of, family violence. In most cases, this is the same person who has applied for the order or asked the police to apply on their behalf. However, if a litigation guardian is applying on behalf of a minor or someone with impaired decision-making ability, then it is the minor or the disabled person who is the affected person.
The term ‘respondent’ is used to refer to the person against whom a family violence order is sought or passed. In simple words, it is the person who has been accused of committing acts of family violence against one or more persons or whose actions have directly or indirectly affected a family member in this context and hence, a domestic violence order has been passed against them or an application for the same has been made. However, if the order is not passed against the person after the court hearing or the application for the same is rejected, they can no longer be addressed as the respondent.
‘Protected person’ refers to anyone that the domestic violence order seeks to protect against the respondent. It may seem that the terms ‘affected person’ and ‘protected person’ are synonymous, but that is not true. An affected person is anyone who has experienced family violence and wishes to seek protection by applying for a domestic violence order. On the other hand, a protected person is anyone that the family violence order protects, whether they are an affected person or not.
A great example to put the point across is this: say, a woman is seeking a family violence order against their mother for an instance of violent behaviour. The woman has a child who was not present at the scene and has not directly experienced the incident or its effects. Here, the woman is the affected person. However, when she gets the order against their mother, it automatically protects not only her but also her child. Hence, both the woman and her child are protected persons under the order.
One of the legal areas Maatouks Law Group specialises in is family law. If you have experienced family violence, are in the process of getting a domestic violence order, feel like the respondent has breached the order or need any other kind of help concerning family violence, don’t wait too long – call us as soon as possible and get help from our expert family lawyers in time. We will do everything we can to help you protect yourself.
Get a free phone consultation from Maatouks today.