Domestic and family violence are concepts used to identify behaviour that is deemed immoral and wrong. When referred to it is not merely physical abuse that constitutes violent behaviour, but a variety of abusive, intimidating and violently induced behaviour from one individual to another.
Behaviour with the intention to control, dominate, humiliate or threaten another individual falls within the scope of domestic and family violence.
Today, there is increasing awareness about the struggles often faced by victims of domestic violence. As the social and cultural attitude’s begin to change so does the law. A person does not need to experience all forms of abuse for it to constitute domestic or family violence.
One type of abuse alone is enough to constitute domestic or family violence.
Types of abuse include:
- Yelling, swearing and humiliating an individual continuously, in public or in private.
- Criticising an individual on either their intelligence, sexuality, appearance and/or their character as apparent or spouse.
- Screaming, utilising tone and words to intimidate.
- Making threats regarding custody of children.
- Generating graphic images and words in the mind of the victim.
- Carrying out violent behaviour such as destroying property in front of victim, family and friends to instil fear for personal safety.
- Threatening to ‘out’ the person if they do not listen to demands.
- Abusing pets in front of family members.
- Blaming all the problems in the relationship on the victim. Making them feel like it is all their fault.
- Undermining the victim’s self-esteem and self-worth by constantly comparing them to others.
- Randomly and consistently sulking.
- Withdrawing interest, engagement and attention from victim, acting ‘hot and cold’.
- Threatening self-harm (suicidal threats) and emotional blackmail.
- Isolating the victim from interacting with family and friends. Such as, forcefully limiting contact, on-going rudeness to family and friends, alienating the victim from social situations.
- Threatening to instigate the move to an unfamiliar location to the victim, where they have no social ties or work opportunities.
- Monitoring and restricting when and how often the victim can use their mobile phone or car.
- Forcefully forbidding or physically preventing the victim from leaving the house, going out or meeting with people.
- Not allowing the victim to access bank accounts.
- Monitoring how much money they have,
- Providing the victim with a small allowance.
- Preventing the victim from working or having a job.
- Forcing the victim to act by forging documents, make false declarations or sign documents.
- Assaulting the victim by punching, kicking, slapping, burning, biting or choking.
- Using objects to inflict harm and pain assaulting the children.
- Preventing the victim from entering the house or rooms.
- Putting drugs in the victim’s mouth, food or drinks, or withholding food, drink and medication or medical care.
- Making it difficult for the victim to sleep (sleep deprivation).
- Any form of pressured/unwanted sex or sexual degradation causing pain during sex.
- Assaulting genitals.
- Forced sex without protection against pregnancy or sexually transmitted disease
- Making the victim perform sexual acts unwillingly (including taking or distributing explicit photos without their consent).
- Criticising or using sexually degrading insults.
Harassment and stalking
- Following and watching a victim without their consent.
- Continuously calling and harassing a victim online through social media or email.
- Being intimidating.
Statutory domestic violence orders
The Crimes Act 1900 (NSW) contains a chapter designed to protect individuals who have either experienced domestic violence or fear domestic violence or abuse. Inducing fear in the mind of an individual in respect to their personal safety warrants the protection of the act. The New South Wales Crimes Act provides that protection by assigning the Local Courts jurisdictional powers to issue Apprehended Violence Orders (AVO) to protect individuals.
An AVO is divided into two categories:
- Domestic Violence Orders (DVO) – to protect individuals who reside in a domestic relationship with the alleged perpetrator; or
- Personal Violence Order (PVO) – for all other categories of individuals.
The Court may issue a range of orders in relation to AVO proceedings (some of which are set out below).
Discretionary domestic violence orders
Discretionary domestic violence orders regulate the interaction between the applicant and the respondent. The general nature of the orders is to prevent the respondent from entering premises (home, work and/or specified premises), contacting, approaching the applicant that are protected by the orders. The purpose of the orders is to protect the applicant and ensure their safety.
AVO orders by consent and without admission
You can apply for an AVO without consent and without any admission of wrongdoing. This is so the matter does not proceed to a hearing before the court. This can be a practical solution for parties whom are trying to resolve disputes but fear domestic violence or abuse. Contrastingly, a full hearing of evidence may be required to prove that an order is necessary to be enforced.
An AVO does not necessarily abolish a relationship. In most cases, the parties intend on living under the same roof but with greater protection put in place.
The effects of domestic violence on the presumption of shared personal responsibility
Unlike other areas of the Family Law Act which require both parents to be involved in making long-term decisions about children, when domestic violence or abuse are in the picture this does not stand. The parent who is seeking sole decision making power is usually the one awarded that power by the Court where it has been proven that violence or abuse was present in the household at any time.
The presumption of equal shared parental responsibility no longer applies in these circumstances. Ultimately the Court will look to arrangements that are in the child’s best interest when exercising its power.
Domestic violence and the requirement to mediate
Parties to a family law dispute are required to engage in pre-action procedures to mitigate issues in dispute. In parenting situations, there is a further requirement to mediate the dispute by utilising the services of a family dispute resolution practitioner.
In cases where family violence has occurred, the requirement to obtain a certificate from the family dispute resolution practitioner prior to attending court is waived.
Domestic violence in property settlement proceedings
In passing, we mention that a Court may take into account domestic or family violence in determining property and financial settlements.