Family Violence & AVO’s

Regrettably, some personal relationships can be marred by allegations of violence – especially at the time of the relationship breakdown and separation. Alleged or actual family violence has a significant impact on both spouses and the children, and the efficient resolution of financial and legal issues arising on separation. Family violence is defined legally to not just be physical violence, but also psychological and controlling and coercive behavior.

Consequences of family violence include:

Impact on children

Family violence is damaging children and causes time long term trauma psychological harm. It effects their adult lives and their ability to form their own healthy relationships.

Criminal charges

In respect of  violence between spouses, the most common criminal charge is assault. Police will not generally bring criminal charges unless there are reasonable prospects of proving the charges beyond reasonable doubt.

Apprehended Violence Orders

An AVO can be made in the Local Court if the person in need of protection (“PINOP”) has reasonable grounds to fear, and in fact fears:

  • an act of personal violence;
  • harassment or molestation;
  • stalking or intimidation.

The PINOP does not have to be physically assaulted or to suffer actual abuse. Intimidation, harassment, or threats of damage to property are sufficient. The burden of proof is balance of probability. It is therefore easier for a court to be satisfied to impose an AVO than to make a guilty finding of assault.

The PINOP may make an application for an AVO or the police may apply on their behalf. The police are obliged to apply where they suspect or believe a domestic violence offence has been, or is likely to be, committed. When the police bring the application, the PINOP must be represented by the police prosecutor. Where an individual applies for the AVO, they may represent themselves and have a private lawyer appear for them.

In exceptional circumstances, the police can obtain a telephone AVO from a magistrate which will remain effective for a short period until the matter is listed in court.

At the first court date, the defendant is entitled to be represented by a lawyer. Legal Aid is not generally available for defendants to AVOs. The defendant may consent to the AVO “without admissions”. If the defendant does not consent, the matter will be set down for a hearing at a later date. At the hearing, both parties and any relevant witnesses will give evidence. Each party is entitled to cross-examine the other party and their witnesses.

Consequences of an AVO

AVOs are commonly made for a period of between six months to two years, although they can be made for longer periods. The making of a final AVO automatically disqualifies any fire-arms licence of the respondent.

The making of an AVO does not constitute a criminal offence. A breach of an AVO – if proved – is a criminal offence. A report of an alleged breach of an AVO will result in arrest and criminal charges being laid.

Depending on the terms of the AVO, an AVO may restrict contact by the defendant to children. A court order allowing contact will prevail over an AVO.

Separately from AVOs, domestic violence may give grounds for a spouse to seek a sole occupancy order of the matrimonial home from the Family Court. Allegations of domestic violence will be taken into account by the Family Court in considering parenting arrangements for children after separation. In some cases, the Family Court has found domestic violence to be relevant in dividing the property of the marriage. The contributions of a party to the property of the marriage whilst suffering from domestic violence may be seen by the court to have been greater than if no domestic violence had taken place. A spouse who has suffered domestic violence may in some circumstances be able to seek compensation from the other spouse.

Acts or allegations of domestic violence can have a significant impact on both separating spouses and their children.

They can complicate negotiations or litigation between spouses. Spouses should properly protect themselves in these circumstances.

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