Separation when family violence is a factor

If your relationship involves family violence, knowing where to start, what support is available and how to leave safely can be difficult. In this article, we answer some of the most common questions we get about separation when family violence is involved.

Family violence is not just physical violence, it takes many different shapes and forms, including:

  • Physical abuse
  • Emotional abuse
  • Religious abuse
  • Psychological abuse
  • Controlling behaviour
  • Coercive behaviour
  • Dominating behaviour
  • Financial abuse
  • Sexual abuse
  • Threatening behaviour
  • Making you fear for your safety

Where can I get help?

There are many people and organisations there to support you if you are experiencing family violence or are worried about your safety. If you are in immediate danger, call 000.
Safe steps is Victoria’s 24/7 family violence response centre. You can call them anytime, day or night, for immediate crisis support and assistance finding safety.
The Orange Door provides crisis support and can help you to prepare a safety plan to protect you and your children, connect you to services that can help and support you in accessing funds for basic living costs.
Safe + Equal provides a search facility that makes it easy to find family violence and support services near you.

What is an Intervention Order?

A Family Violence Intervention Order is a court order that will help to protect you, your children and your property from a partner, ex-partner or family member who is violent, threatening you or making you feel unsafe.

The conditions of an Intervention Order can require the respondent to:

  • stop a behaviour or action
  • not contact or communicate with you and/or your children
  • not publish anything online about you and/or your children
  • not go near you and/or your children’s home, school or workplace
  • not enlist someone else to do something they are not allowed to do under the order.

How do I get a Family Violence Intervention Order?

There are two ways that you can apply for an Intervention Order:

  1. Obtain a Police Initiated Safety Notice
    A Police Initiated Safety Notice is basically an application for an Intervention Order that is made by the police. It is designed to stop family violence and provide immediate protection while the application waits to be heard by a magistrate.To get a Police Initiated Safety Notice, you can call 000 or go to your local police station. You will need to explain your situation and provide details about the family violence you have experienced.
  1. Apply for an Intervention Order through your local Magistrates Court
    You don’t have to go to court to apply for an Intervention Order, you can apply for a Family Violence Intervention Order online, or by downloading this application form. If this is not safe, you can call the court to discuss your options.If you do not feel safe, you can seek protection immediately by applying for and obtaining an Interim Intervention Order, but you will be required to attend court on the same day to give evidence.

After you have applied for a Family Violence Intervention Order:

  • The family member will be served ­– this involves the police attending their home and giving notice that an Intervention Order has been made against them.
  • There will be a court hearing. At the hearing, the person will have the option to:
    • Agree to the order or consent without admissions – which will lead to an Intervention Order being made.
    • Complete an undertaking – this is a promise that the family member will not commit family violence and you agreeing to withdraw your application. This offers you limited protection as there are no legal consequences if this is broken.
    • Contest the application – which means there will be a further court hearing will occur. You will attend a Directions Hearing where you will need to tell the court about the evidence you have to support your application and the number of witnesses you will call. You will then attend a Contest Hearing to give evidence and the court will determine if an intervention order should be made.

Can I withhold access to our child or children?

If there is a risk that your children could be subjected or exposed to family violence or any behaviour that may result in them suffering emotional, psychological or physical harm, then yes you can and should withhold access to your children.

However, we highly recommend seeking advice from an experienced family lawyer before deciding to withhold your children.

The court does not look favourably upon a parent who withholds the child without evidence to support their reasoning. You must be able to justify your actions and reasoning should the other parent pursue the matter with the court. Things like emails, text messages, medical reports and witness statements can be useful evidence.

Can I change the locks?

This depends on your specific circumstances. You should get legal advice from an experienced family lawyer before changing the locks as there are a variety of factors that will impact how the family court views such an action.

However, if you have obtained a Safety Notice or Intervention Order, the other party is prohibited from attending the home, which gives you the right to change the locks.

Can I make them leave the family home?

If you are both registered owners or named on the lease, you are both entitled to live in the matrimonial home following separation. However, when family violence is a factor, the courts will generally grant exclusive occupation of the home to the party who has experienced it.

Where there is a Safety Notice or Intervention Order that prohibits the other party from attending the home, it provides you with the right to sole occupancy. But if you don’t have one in place, you will need to make an application to the court for sole occupancy.

Where can I get legal advice?

If you are experiencing family violence and need legal advice the team at Lakey Family Law are here to help – simply contact us for an initial, obligation free chat. We have extensive experience in this area and approach all matters with understanding, compassion and professionalism.