Family violence is a pressing and complex issue with wide-ranging implications for families, especially in the context of restraining orders, Family Law matters and proceedings. In Western Australia, understanding the legal system’s response to family violence—including restraining orders and their influence on child custody and property settlements—is critical to protecting both you and your loved ones.
In this comprehensive guide, we will explore family violence and its effects on Family Law matters. We will discuss the purpose and process of obtaining restraining orders, their impact on child custody arrangements and property settlements, and the critical role of a specialised family lawyer in guiding you through this challenging period. By equipping yourself with a thorough knowledge of your rights and available legal options in cases involving family violence, you can make informed decisions that prioritise your safety and the well-being of your family members.
Family violence, which may manifest in physical, emotional, or psychological abuse, can profoundly affect those involved. As such, the legal system offers various avenues to mitigate the impact of family violence, protect victims, and foster safe living environments. Family Violence Restraining Orders (“FVROs”) are common legal instruments that provide a layer of protection for victims of family violence against their perpetrators. In addition to offering this immediate protection, restraining orders can also affect other aspects of family law, such as child custody decisions and property settlement negotiations.
1. Family Violence Restraining Orders: Purpose and Process
In Western Australia, an FVRO is a legal mechanism designed to protect victims of family violence by prohibiting the perpetrator from engaging in certain behaviours, such as contacting the victim or being in their vicinity. The process of obtaining a restraining order includes:
- Application: The victim, or a legal representative on their behalf, submits an application for a restraining order to the local Magistrates Court, detailing the nature of the violence and the necessary protection measures.
- Interim Order: To provide immediate protection while the final hearing is pending, the Court may issue an interim restraining order, which imposes temporary restrictions on the alleged perpetrator. This often occurs on an “ex-parte” basis, i.e. without the other person knowing that the application has been made.
- Final Hearing: A court hearing is held to determine whether a final FVRO is necessary. The victim and the alleged perpetrator can present further evidence, cross-examine the Other Party and make submissions about their case.
- Final Decision: If the court determines that the victim requires ongoing protection, a final restraining order is issued, usually lasting for a specified period of time (often around 2 years).
2. The Impact of Restraining Orders on Parenting Arrangements
Family violence and restraining orders can significantly impact parenting arrangements. Key considerations in this regard include:
- Best Interests of the Child: The paramount consideration in determining a child’s care arrangements is their best interests. One of the primary considerations in determining a child’s best interests is protecting them from risk of harm, including physical, emotional or psychological. If the Court deems that a parent’s violent behaviour puts the child at risk, it may order supervised visitation or restrict the parent’s access to the child.
- Safety Considerations: The Court will assess the potential risk posed by the violent parent to the child’s safety and well-being, and may modify custody arrangements to minimise potential harm.
- Impact on Parenting Orders: Restraining orders can affect existing parenting orders, however any parenting Orders will override a FVRO to the extent of any inconsistency.
3. The Influence of Family Violence on Property Settlements
Family violence can have implications for property settlements, as the Court may consider both parties’ behaviour when dividing assets. Key factors the court may evaluate include:
- The Impact of Family Violence on Contributions: The court may consider whether the family violence hindered the victim’s ability to contribute to the acquisition, conservation or improvement of the property during the relationship.
- The Effect on Future Needs: The Court may also consider the impact of family violence on the victim’s ongoing physical and emotional well-being and their ability to support themselves financially.
- Behaviour Not Automatically Factored In: While family violence may be considered in some cases, it is not automatically factored into property settlements. The Court will scrutinise each case’s unique circumstances when determining whether the behaviour warrants an adjustment in the property division.
4. The Importance of Seeking Legal Advice from a Family Lawyer
An experienced family lawyer can provide invaluable insights and assistance in navigating family violence cases and the subsequent legal implications. Essential legal services provided by family lawyers include:
- Assisting with Restraining Order Applications: A family lawyer can guide you through obtaining a restraining order, advising you on your rights and helping you present a strong case to the court.
- Advocating for Your Interests in Parenting Matters: A family lawyer can represent your interests and voice your concerns during any parenting proceedings impacted by family violence and restraining orders.
- Negotiating Property Settlements: A family lawyer can support you in negotiating a fair property settlement that considers the impact of family violence on your contributions and future needs.
- Providing Expert Guidance and Support: A family lawyer can provide essential advice, support, and guidance throughout the entire process, helping you navigate the complex legal landscape of family violence and its consequences.
Safeguarding Your Family’s Well-being in Cases of Family Violence
Understanding the legal system’s response to family violence in Western Australia, is crucial for safeguarding the well-being of your family. By obtaining a FVRO and seeking the advice of a specialised family lawyer, you can protect yourself and your loved ones from further harm. With expert guidance and support, you can work towards resolving issues relating to child custody and property settlements, ultimately striving for a safe and secure future for your family in the aftermath of family violence.
At Coastal Family Law, our lawyers are highly skilled and experienced in Family Law and have a deep understanding of family violence and how it can manifest, and the support that victims need as they go through their Family Law matter. Further, our lawyers are also experienced in dealing with matters involving coercive control – an insidious form of family violence that can have a profound impact on victims and children.
If you need expert legal advice in this area, get in touch with us to speak with one of our family lawyers in Mandurah.
