The decision to separate is emotional, complicated by any children that the parents may have together and financial issues. For some people, leaving their partner is more difficult than others because of family violence.
The Family Law Act, which determines how the court system deals with parenting disputes, defines family violence as, “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.” The Act contains the following examples of family violence:
- An assault;
- A sexual assault or other sexually abusive behaviour;
- Repeated derogatory taunts;
- Intentionally damaging or destroying property;
- Intentionally causing death or injury to an animal;
- Unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
- Preventing the family member from making or keeping connections with his or her family, friends or culture; and
- Unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
The first step in separating from your partner is to leave the family home with your children. If your partner is violent, you do not need to tell him or her where your new residence is or make arrangements for your partner to spend time with the children until a parenting order has been made by a court.
If you do not work, you should approach Centrelink and see whether you are eligible for a pension. There are social workers at Centrelink who are able to speak with you. You can also contact the Child Support Agency on 131 272 and apply to have your former partner pay child support. If your former partner does not comply with a direction to pay child support, the Child Support Agency can deduct the payments from their wages.
If you own a home with your former partner, you can apply to the court for an order that you have ‘exclusive occupancy’ of your home. This means that you and your children can live in the home, and your former partner will need to find somewhere else to live. If there are issues of family violence, however, you may not wish to live in a residence known to your former partner.
The Family Law Act states that a court must always make parenting orders that are in the best interests of the child or children involved. The primary considerations which the court takes into account are:
- The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Even if your former partner was the primary income earner, the court will not allow the children to live with that person if there is a risk they will be subjected or exposed to family violence. As long as your children are provided with basic necessities, the issue of income or material needs will not be a major factor.
If your partner has threatened you, you should contact the police as soon as possible. The police are able to issue an ‘Interim Intervention Order’, which will serve as an emergency measure to stop your former partner from contacting you. A court hearing will then be listed at which your former partner may choose to attend to contest a long-term Intervention Order being made.
If you are in a violent relationship and need further information about how to separate safely from your partner, please contact Swan Family Lawyers on 8221 7020 or send us an email at email@example.com