In these uncertain times Mathews Family Law continues to be available to provide you with family law advice and support
Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
If you fear violence, you should seek advice immediately.
You cannot be forced to leave just because the property is not in your name. If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave.
Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.
It may be possible to negotiate a settlement with the applicant by writing a letter or attending family dispute resolution.
Where there is family violence or risk of harm to the child negotiation is not advisable.
The Court will only hear child related proceedings if an applicant has attended family dispute resolution and obtained a certificate. A certificate is not required where child abuse or family violence is involved.
As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.
If there has been violence in the relationship, this can affect the division of property. This is due to the possibility that the effects of violence may have limited the ability of a party to contribute.
Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the ‘additional factors’.
Couples who have a dispute about parenting arrangements are required to attend Family Dispute Resolution and make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children.
This requirement does not apply in certain circumstances, such as where there is urgency or in cases involving child abuse or family violence.
An application may be made to the Court to either change the conditions of or remove the Apprehended Violence Order. This application may be made by the protected person, the defendant, a police officer or a person acting on behalf of the protected person.
It is a criminal offence to knowingly breach an interim or final Apprehended Violence Order. The maximum penalty on conviction is a $5,500 fine or two years imprisonment or both. Where the breach itself is an act of violence and the defendant is at least 18 years of age, the defendant will likely be sentenced to a gaol term.