What is “Family Violence”?
Unfortunately, many family law matters involve the perpetration of domestic and family violence. If you or a child is in immediate danger, call emergency police on 000.
What is “Family Violence”?
The law1 defines “family violence” as violent, threatening or frightening behaviour exhibited by one family member towards another. A family member includes (but is not limited to) a spouse, a parent or a child.
Below are some examples of “family violence”, however this is not an exhaustive list:
If a child sees or hears any kind of behaviour as listed above, even if that behaviour is not aimed towards them, they will be considered to have been exposed to family violence. 3 This also includes a child providing comfort or assistance to a person who has been assaulted by a family member, cleaning up after a family member has intentionally damaged property or being present when police or ambulance officers attend an incident involving an assault on a member of the child’s family.
Anyone can be a victim or perpetrator of family violence and the law does not differentiate between age, gender, sexuality or culture.
Australian law, and the Family Court of Western Australia, consider family violence to be unacceptable in any form. For more on the Family Court of Western Australia’s “Family Violence Policy”, click here. The Court employs specific policy, procedures and security measures to ensure your safety when at Court.
For more information on Family Violence, visit:
1 Family Law Act 1975 (Cth), s 4AB(1)
2 Ibid, s4AB(2)
3 Ibid, s4AB(3)&(4)
Immediate Assistance & Support Services
If you or a child are in immediate danger, call emergency police on 000.
If you or someone you know is planning to leave a dangerous household, you can contact the Department of Human Services to utilise the “enough” initiative. This initiative can assist you with income support, housing and counselling services in the context of family and domestic violence. To find out more, visit the Department’s website as https://www.humanservices.gov.au/customer/subjects/family-and-domestic-violence.
You can also contact your local council for information about support services and networks in your local area. White Ribbon also provides a list of national and state based support organisations which may be of assistance with family and domestic violence. You can visit their website at www.whiteribbon.org.au.
If you need to contact a women’s refuge in the Perth Metropolitan area, or rural Western Australia, you can find a list of potential safe-houses at Women’s Council. Contact (08) 9420 7264 or click here.
The Family Court of Western Australia and Domestic Violence
If you or a child are in immediate danger, call emergency police on 000.
Australian law and the Family Court of Western Australia consider family and domestic violence to be unacceptable in any form.
The Family Court of Western Australia employs specific protocols, policies and security systems to protect victims of family violence when attending the Court. For more information, and to download the Family Court of Western Australia’s domestic violence policy, click here.
The Family Court of Western Australia’s concern with respect to family violence is the effect that it has on victims and children. Accordingly, the framework that the Court uses to consider a child’s best interests focuses on protecting children from neglect and exposure to family violence, whilst protocol within the Court ensures the protection of a parent or party who could be a victim of violence whilst in attendance.
To notify the Court of any past, current or anticipated family violence, you must complete and file a Form 4 Notice of Child Abuse or Family Violence (or Risk). You can download a copy of this form, and instructions on completing the form, from the Family Court of Western Australia website here. A Form 4 is to be used when allegations of child abuse, neglect and/or family violence (or a risk) are made, and are relevant to whether the Court should make or refuse to make Orders about a child’s care arrangements.
You can file a Form 4 at any point in Family Court proceedings and there is no Court fee charged for filing a Form 4. Information contained in a Form 4 is evidence and needs to be true and correct to the best of your knowledge and belief. Allegations of family violence are taken very seriously in the Court, so all care must be taken to ensure that the facts contained in the form are properly explained and correct.
A Form 4 is an affidavit, so you must swear or affirm the contents of the document before an authorised witness. An authorised witness can be a Justice of the Peace or a Lawyer. You can have your documents witnessed by a Justice of the Peace at the Family Court, at certain times during the week. Call the Family Court, on (08) 9224 8222, to check times and availability. You can also find authorised witnessing services at local and regional Magistrates Courts, as well as some government centres and libraries.
You must file your Form 4 at the Family Court of Western Australia and serve the other party with a sealed copy of the documents.
If you have concerns about your safety at Court, you should contact the Family Court of Western Australia on (08) 9224 8222, or write to the Court (at least two weeks’ before your next Court event) with the concerns you have for your safety and a request for assistance. You can download the template for the “Request for Personal Safety Measures” at the Family Court of Western Australia website (www.familycourt.wa.gov.au).
If there is a Violence Restraining Order between the parties to a case in the Court, you should notify the Court and take a copy of the Order with you to your next Court event. If you have concerns upon reaching the Court, notify a Court officer so they can implement the Court’s safety protocols. Advise Court officers of any threatening or intimidating behaviour, when attending the Court, as soon as possible.
Family violence may constitute a criminal offence. If you have concerns about your safety, or the safety of a child, outside of Court, you may wish to notify the police or the Department of Child Protection accordingly.
Violence Restraining Orders
If you or a child is in immediate danger, call emergency police on 000.
If you and/or a child in your care are victims of threatening or violent behaviour, you and/or the child may be eligible for protection by way of a Violence Restraining Order.
Violence Restraining Orders are made under West Australian state law and prevent a person from being near or contacting another person in circumstances where an act of violence has occurred or is anticipated to occur again.
If a person’s behaviour is directed more towards property or involves a person who you do not have a relationship with, a Misconduct Restraining Order may be more appropriate. For help in deciding which order is right for your situation, contact your local police, Legal Aid on 1300 650 579, or seek legal advice.
Applications for Violence Restraining Orders are made in the Magistrates Court. Although it is not a criminal proceeding, it is highly likely that the police would be involved in some way in a Violence Restraining Order application and that behaviour linked with a Violence Restraining Order would attract criminal charges.
To apply for a Violence Restraining Order, you must file a Violence Restraining Order Application Form and supporting affidavit. You can do this yourself, or utilise the services of a lawyer or Legal Aid to assist you. In some circumstances, the police may also be able to assist you with your Violence Restraining Order application.
Applications for Violence Restraining Orders have specified terms. In the context of a relationship breakdown, you can seek for those terms to include limited contact with the “bound person” if you still wish or need to discuss arrangements for a child’s care or the division of your assets.
You must file your application in the Magistrates Court registry, at any Court location. There are a number of Magistrate Court locations throughout the Perth Metropolitan Area and regional Western Australia. For a list of Magistrate Court locations, click here.
Once you have filed your application, the police will serve the other party who will have 21 days to file an objection. In the meantime, you will have an interim hearing to allow the Court the opportunity to grant you immediate protection. You can seek in your application to have this interim hearing heard without the other party present.
After 21 days, your matter will be listed for a final hearing. At this hearing, both parties will be given the opportunity to give evidence as to why (or why not) a Restraining Order should be made final. This will include cross-examining either party or bringing forward to the Court witnesses and other forms of evidence (including photographs and written messages between the parties).
If you do not have legal representation, in the course of a final hearing you may be required to be in the presence of, speak with or deal directly with, the person you wish to be protected from. This will be under the security and supervision of the Court. In serious circumstances, you can ask to appear at the Court via video link or telephone. To arrange this with the Court, contact the Magistrates Court where your final hearing will be heard as soon as possible.
A Violence Restraining Order, as a civil matter, will be determined on the balance of probabilities. You do not have to prove beyond a reasonable doubt that you anticipate an assault from the other party, but you will have to show that it is more likely than not.
Once a Restraining Order is made final, it remains in force for 2 years. The “bound person” cannot contact you (subject to the terms of the Order) during this time. If you are protected by a Restraining Order and the “bound person” contacts you outside of the terms of the Order, you can call the police for immediate support and protection. Breaches of the Order by the “bound person” can result in that person being criminally charged and prison time.
If you contact the “bound person” outside of the terms in the Order, you could cause for the Restraining Order to be set aside. Accordingly, it is important that you follow the terms of the Order, as well as the “bound person”.
If you wish to amend the terms of an Order, you can do so by applying to the Magistrates Court with a Form 8 – Restraining Order Application to Vary or Cancel. You can also cancel a Violence Restraining Order this way, however you should seek legal advice before doing so.
Note: Restraining Orders are subject to any Orders that the Family Court of Western Australia make in the course of family law proceedings. If you, or your child, is protected by a Restraining Order from the Magistrates Court, the terms of that Order can be affected if the Family Court makes Orders that your child(ren) spend time with the bound party.
You can also apply to the Court to register a Restraining Order that has been made in another state outside of Western Australia. You can do this by filing a Form 12 – Application to Register an Interstate Restraining Order, along with a certified copy of your interstate Restraining Order, in any Magistrates Court in Western Australia. The application will notify police and the Court in which the Order was originally made.
For all Restraining Order kits and forms, including original applications, affidavit forms, variations and interstate registrations, visit the “Restraining Orders” section of the Magistrates Court website here. There is no Court filing fee for applications concerning Restraining Orders.
You can get more information about Restraining Orders, and assistance for making your application, from a lawyer, at any West Australia police station and at Legal Aid. You can contact Legal Aid on 1300 650 579 or visit their Restraining Orders info site here.