The issues of domestic violence in the family law breakdown are complicated and require detailed consideration. In this short piece, we can only give a very brief overview.
In terms of the Court system, allegations of domestic violence can be dealt with in 2 different Courts, either the Mackay Magistrates Court or in the Federal and Family Court when it circuits to Mackay.
In the Mackay Magistrates Court, the relevant law is the Domestic and Violence Protection Act. An application can be made for an order either by the Police or by the person who says they are a victim of domestic violence – in that court called the aggrieved.
In either case, the Court must be satisfied that a relevant relationship exists between the Aggrieved and the Respondent, that the Respondent has committed an act of domestic violence, and that an order is necessary and desirable to protect the aggrieved from domestic violence. The definition of domestic violence in this context is quite wide and includes physical and sexual abuse, emotional and psychological abuse, economic abuse, threats, and coercion.
If the Magistrates Court makes an order it will usually be for a period of 5 years. If an order
is made, even if the Police applied for it, it is not a criminal issue, but if a person is
convicted of breaching a domestic violence order, that is dealt with as a criminal matter.
In the Federal Circuit and Family Court, which circuits to Mackay from Rockhampton regularly during the year, the situation is different. That Court will be dealing with applications for Parenting Orders as well as the division of property after the breakdown of a relationship. Allegations of domestic violence will more generally be raised in this Court in the context of Parenting disputes. The Court will apply the Family Law Act, which deals with domestic violence slightly differently. The definition of family violence is slightly different – it is defined as violent or threatening behavior that coerces or controls another family member or causes them to be fearful. This Court will also consider whether a child has been exposed to acts of violence, including by witnessing them.
The Federal Circuit and Family Court will take into account whether a domestic violence protection order has been made in the Magistrates Court, but will also consider allegations of violence separately and determine the relevance of that issue to the orders that should be made regarding Parenting arrangements.
ALWAYS KNOW YOUR RIGHTS AND KNOW WHERE YOU STANDBy consulting one of our accredited family law mackay specialists.
This is a complex and difficult area of the law. If you feel you are in immediate danger, you should of course call the Police. If you are involved in proceedings in either the Mackay Magistrates Court or the Federal Circuit and Family Court of Australia and you require legal advice, call the team at Family Lawyers Mackay on 07 4847 0198