Leaving a Violent Relationship

by Peter Magee on March 13, 2014

Peter Magee

Making the decision to separate from your partner is difficult for most people, let alone when you have experienced physical violence or other forms of family violence including economic and/or social control, emotional abuse or verbal abuse.

Most people will be aware of at least three recent cases in the media where family violence appears to have played a role. No doubt, hearing of these cases can make the decision to leave a violent partner all the more difficult. It is important to note that these cases are the minority, and help is available.

It is often difficult to make the decision to leave without being fully informed as to what the future may hold and the support available to you. Primary and immediate concerns may be: how you will support yourself and the children; and how to protect yourself from further violence.  Below is a brief outline below of options that may be available to you. Please note that the list is not exhaustive and you should speak to a family law solicitor and social worker.

The First Step

The first step is simple. Remove yourself and your children from harm. How to manage this and afford this is further outlined below.

Financial assistance

You can take steps to ensure that you are able to support yourself and your family by approaching Centrelink about the possibility of receiving financial support. Centrelink has private social workers on hand to meet with you and discuss your options. Financial assistance may include:

  1. Emergency/crisis assistance; and
  2. Single parent payments;
  3. Income support payments;
  4. Unemployment payments and exemptions from seeking employment.

Upon separation you can also apply to Child Support Agency for your former partner to pay child support. If they do not willingly pay child support the Child Support Agency has the ability to seize it through their employer.

Legally, you may make an Application to the Federal Circuit Court of Australia (in the family law jurisdiction) to receive urgent spouse maintenance. This financial support is separate to and in addition to child support. You should speak to a family law solicitor about your prospects of success in such an application.

Housing

If you and your former partner own a home, it is possible to apply to the Federal Circuit Court (family law jurisdiction) for an urgent order for ‘exclusive occupancy’. Exclusive occupancy is an Order that means you (and the children if applicable) can live in the home and your former partner will have to find alternate accommodation.

Otherwise you may look into the possibility of crisis accommodation such as a refuge or other purpose-built accommodation. This might be something you wish to investigate:

  1. for the period of time until an exclusive occupancy Order is made; or
  2. if you do not own property; or
  3. if you are too fearful to reside in the former matrimonial home because your former partner will know where you live.
  4. Such accommodation is not easily located on the Internet and you may wish to speak with a family law solicitor or a social worker about your options.

Custody of Children

I often hear “My partner told me if I leave, I leave the children too” or “My partner told me if I leave I will have the children taken from me because I can’t support them”.

It is important to note that the Family Law Act dictates that the Court must make orders that are in the children’s best interests. Number one on the list of considerations to determine what is in the children’s best interests is protecting the children from harm. The Court takes this very seriously.

The ability to financially support your children is a consideration but protection from harm is a far stronger consideration. As long as your children are fed, clothed, washed and housed, whether it be in emergency housing or otherwise, this consideration will not be a major factor in the determination of your case. With the financial support available to you through child support, spouse maintenance, and/or Centrelink assistance, the Court will likely be satisfied that your children are being properly provided for in your care.

There are a number of other factors a Court must consider and you should speak to a family law solicitor about your specific family circumstances for further guidance.

Apprehended Domestic Violence Orders

It is important to know that you can contact the police immediately if you think that you or the children are at risk of harm.

The police can issue an emergency ADVO that will be in place for a short period of time until the matter can proceed to an interim Hearing. At the interim Hearing a temporary ADVO may be issued after a very short Court Hearing. The interim ADVO will usually be in place for approximately 3 months until the final hearing. The matter will then come before the Court for a Final Court Hearing where a longer term ADVO can be put in place.

Please note that if you feel your children are at risk, the children can be named as "protected persons" under the ADVO. If this occurs, you should let their schools know that this is ADVO is in place and ensure that they do not release your child to the other parent and contact you if that other parent shows up at school.

You should also know that if a report is made to the police, the police must investigate the matter and ascertain whether an assault has occurred. The police will not refrain from investigating the matter if you ask them not to.

Finally…

The three topics covered in this blog are unlikely to cover all the questions you may have about your particular situation.

If you have further queries, there are many organisations set up to help you. 1800 RESPECT is the national family violence and sexual assault counselling service. It is a free, confidential service available 24/7. Call 1800 737 732 to speak to a professional counsellor. Lifeline provides crisis support services, and is also available 24/7 on 131 114.

If you are considering separation and would like to understand more about the legal options available to you in relation to financial assistance, division of property and custody of your children, please speak to a family law solicitor today.

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