Skip to main content

Dangerous “grey area” between federal and state laws regarding domestic violence

By January 11, 2016No Comments

Domestic violence offenders who are the subject of a AVO or DVO type order from a Local Court or Magistrates Court may still able to harass or bully their ex-partners when there are Family Court orders in place which allow for joint custody, victims’ groups warn.

This is because the federal Family Court orders override domestic violence orders, which are State-based and frequently stated to be ‘subject to orders made in a family law court’.

The situation has caused a ‘grey area’ for police who find the domestic violence order outweighed by the Family Court joint custody arrangements. Victims report that abusive ex-partners are using the family law protocols to continue to attempt to exert control over them, using parenting legislation under Family Court orders. Victims say this allows abusive ex-spouses to continue to abuse them.

As reported in the Canberra Times, this issue was raised in the Australian Law Reform Commission’s report on a national legal response to domestic violence last year, and is something State governments will need to address as part of  anti-domestic violence law reform.  

The tension caused by inconsistencies between the different court jurisdictions needs to be resolved in order to improve the way protection and parenting orders work together. At present, domestic violence offenders are able to manipulate the system and get away with harassment and intimidation during the contact that is required to arrange custody of children. Offenders can still call and text message their ex-partners to discuss custody, even if a domestic violence order has been issued via a Magistrates Court that otherwise prevents contact. Often, the behaviour won’t be seen as ‘bad enough’ to warrant an application for breach of AVO, but it can undermine the effectiveness of an AVO.

Theoretically, if there is enough evidence a perpetrator is breaching a domestic violence order, police can act. However in practice, perpetrators are manipulating the system by ensuring that contact, even when allegedly abusive, revolves around custody arrangements. Victims report that inconsistency in how police respond means some perpetrators are simply able to get away with this behaviour. One mother reported having a domestic violence order in place preventing her ex from contacting her or coming within 100 metres of her except as outlined in Family Court orders. The woman’s ex-partner would contact her up to 20 times a day with abusive and derogatory messages but “as long as he said he wanted to see the kids he knew he could get away with it”. She reported that, “The police would say that he was going a bit overboard, but that he was asking to see the kids. Every police officer you speak to has a different opinion. One said there’s nothing you can do because it’s not a breach. Another said it was a minor breach.”

Anti-domestic violence campaigners say the problem is exacerbated by the fact that federal laws “often assumed domestic violence was a one-off incident rather than long-term abuse that can continue after separation”. It is argued that the fact that the court system favours a parent’s right to see their child is inherently problematic, as it places family violence issues secondary to parenting issues. Victims of abuse believe parenting arrangements should be voided if a victim later takes out a domestic violence order against their former partner. Says one victim, “I know fathers have a right to see their kids, but if they’re abusing their mother they should lose those rights.”

If you need assistance with a parenting matter involving an abusive ex-partner, please contact Cristina Huesch or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400—your first no-obligation conference is free.



Call Now Button