What is domestic violence?
Domestic violence tends to form a pattern and escalates over time, may be emotional, financial, sexual or physical and can include threats, isolation and intimidation.
What is the Family Law Act and how does it relate to domestic violence?
The Family Law Act 1996 (FLA), as amended by the Domestic Violence Crime and Victims Act 2004, enables a man or woman to obtain an injunction (court order) to protect them from relationship abuse.
What is the purpose of an injunction?
An injunction can either:
- prohibit an abuser from engaging in certain forms of behaviour, such as violence (this is called a ‘prohibitory injunction’)
- force an abuser to perform particular acts, for instance, leaving the home (known as a ‘mandatory injunction’).
Two forms of domestic violence relief are available under the FLA: ‘non-molestation orders’ and ‘occupation orders’.
What is a non-molestation order?
A non-molestation order can protect a man or woman and any connected child from violence or harassment.
A victim can apply for a non-molestation order notwithstanding their desire or need to live with their abuser.
The scope of a non-molestation order is as follows:
- forbidding an abuser from violence, threats towards or harassment of the victim or any children in the family
- forbidding an abuser from coming within a certain distance of the victim’s home
- forbidding an abuser from damaging or disposing of the victim’s personal property.
When considering whether or not to grant a non-molestation order, the court will take into account all the circumstances of the case, including the health, safety and wellbeing of the victim and their children.
What is an occupation order?
An occupation order controls who can live in the family home. It can serve any of the following purposes:
- order the abuser to move out of (or stay away from) the family home
- order the abuser to maintain a certain distance from the family home
- order the abuser to stay in designated parts of the family home at certain times
- order the abuser to allow the victim re-entry to the family home (if the abuser has locked the victim out)
- order the abuser to continue paying the mortgage, rent or bills.
When deciding whether or not to grant an occupation order, the court will consider (among other things):
- the housing needs and resources of the victim, abuser and any children
- the potential effect of making (or not making) an order on the victim, the abuser and any children
- the abuser and the victim’s behaviour towards one another.
In certain defined situations, the court may consider it appropriate to grant both a non-molestation order and an occupation order.
Who can a victim get an injunction against?
A victim can only apply for a non-molestation or occupation order if they are affiliated to their abuser:
- previously or currently married to (or in a civil partnership with) their abuser
- previously or currently engaged to be married (or agreed to form a civil partnership)
- previously or currently co-habiting couples (heterosexual or homosexual)
- previously lived or currently living in the same household (on a non-paying basis)
- parents of the same child
- previously had or currently have parental responsibility for the same child
- parties to the same family proceedings for the same child
- previously or currently involved in an ‘intimate personal relationship of significant duration’.
What sentence would someone who commits domestic violence expect to receive?
Currently, there is no law that specifically deals with domestic violence. If domestic violence occurs the perpetrator may be charged with criminal acts such as assault, harassment of threatening behaviour.
However, if a person is found guilty of displaying controlling or coercive behaviour with a close individual or family member they could receive a sentence of up to five years in prison.
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