How to leave an abusive partner or spouse (ACT & NSW)
When we are asked for advice about how to leave an abusive partner or spouse, we know how vital it is that it can be done without alerting the person responsible.
On this page you can expect information about how to escape family or domestic violence specific to the Australian Capital Territory (ACT) and New South Wales (NSW).
Below you will find answers to common queries including:
- Are these behaviours considered family violence or domestic violence?
- What type of protection is available to me and/or my children in ACT or NSW?
- How can I report an abusive partner or family member; &
- How can I be sure I will be safe / my children will be safe?
We will also unpack:
- The process in ACT & NSW including timelines to get a violence protection order
- What to know if the offender is your partner or spouse
- What to know if you are unsure you can or should leave and get protection orders in place.
Whether it is you that is seeking information on how to leave an abusive partner, or someone you wish to assist, read on to learn the essential steps and legal options, with insights specific to people in the ACT and NSW.
Family violence
Family violence is a broad term used in family law which includes domestic violence. It is a term given to include physical, emotional, financial or sexual abuse, threats, stalking, coercive and/or intimidating or controlling behaviour who have a familial relationship – inclusive of partners, spouses, children and extended family members.
In the ACT, family violence also includes harming an animal and damaging property. In NSW, the harming or threat of harm to an animal is also included, as well as the damaging or a threat of damaging property.
In New South Wales, Coercive Control is a criminal offence.
In ACT, it is not a criminal offence currently however it is anticipated that it will be in time, as has been committed to by the current government, to bring the ACT in line with other states and territories in Australia. That being said, coercive control is recognised when applying for an FVO or seeking injunctions in the Family Law Courts to restrain someone from engaging in certain behaviours.
How to protect yourself & your children from family violence
For information specific to the state or territory you live in, follow the most relevant links:
If you are in NSW, jump to this section.
If you are in the ACT, read on below.
Family violence protection in ACT
The name given to violence protection orders are called Family Violence Orders (FVO’s). These types of applications are dealt with in the ACT Magistrates Court.
In the ACT, any person named to be protected by the FVO, is referred to as a ‘Protected Person’.
An Interim/Provisional FVO is a short-term or temporary Family Violence Order. The conditions of that order are to be followed by the perpetrator until a Court Hearing.
For an interim FVO to be granted, there must be fear for your immediate safety (&/or your children’ s safety).
If an interim FVO is granted, the conditions of that Order may include one or more of the following:
- No contact (direct or indirectly) with the protected person
- No monitoring, surveilling or stalking
- No threats, intimidation or assault
- No harassment
- No alcohol or drugs before contact
- No property damage
- No harm to animals
- No possession of weapons
- Exclusion from home, residence, school or workplace; &
- Other specific conditions as determined by the presiding Magistrate.
If the perpetrator does not comply with the conditions in their FVO, then this can mean the civil proceedings become criminal proceedings, with the alleged perpetrator being charged with breaching the FVO.
Then at the hearing, which is held in the Magistrate’s Court, evidence is heard, and the Court decides if they will grant a final FVO.
A Final Family Violence Order is a longer-term Court Order that can be in effect for around 2 years, depending on the circumstances.
The process for applying for Family Violence Orders in Canberra, ACT
Unlike in New South Wales, in the ACT, the alleged victim of family violence makes the application. On occasion, but very rarely, the police will make the application on behalf of the alleged victim. If they do, Police will obtain a protection order called Special Family Violence Orders which coincides with other criminal charges.
For a personal application, the process starts with filing an Application for a Family Violence Order’ which requires specific evidence to be included. This application requires people to be prescriptive about what they have experienced and often without the assistance of a family lawyer, people can easily under-detail the type of evidence the Court requires for specific conditions to be met.
Next, the application is then listed for an interim hearing where the person applying for the Orders provides oral evidence, completed in the absence of the perpetrator. To ensure your evidence is comprehensive to get the most beneficial protective measures possible, seek legal advice to ensure your evidence meets the requirements.
At that hearing, usually a decision is made on the spot. You have one shot at getting an interim Order and the subsequent conditions in place so you will want to ensure your application and evidence is prepared and comprehensive enough to ensure the conditions of the FVO or ADVO will be sufficient.
If the Court makes an interim FVO, then an Interim Order is served on the other party by Police. Importantly, this only comes into effect once it has been served to the perpetrator, which can take as long as four weeks.
That being said, if an application is filed before 11.30am, the application can be heard the same day. After 11.30 am, it is generally heard the following day.
Read below about family violence protection in New South Wales or jump to this section titled ‘How safe will my children and I be, really?’
Support Services in Australian Capital Territory:
Menslink
Domestic Violence Crisis Service
Family violence protection in NSW
In New South Wales, family violence protection orders are called Apprehended Domestic Violence Orders (ADVO’s).
Unlike the ACT, in New South Wales it is the police who mainly apply for ADVO’s. The police can also issue Provisional ADVO’s from the police station, before the application is heard by the court.
In New South Wales, any person named to be protected in an ADVO is called a Protected Person or a PINOP – a ‘Person In Need Of Protection’.
If an interim ADVO is granted, the conditions of that Order may include one or more of the following:
- No contact (direct or indirectly) with the protected person
- No monitoring, surveilling or stalking
No threats, intimidation or assault - No harassment
No alcohol or drugs at least 12 hours before contact - No property damage
- No harm to animals
- No possession of weapons including firearms
- Exclusion from home, residence, school or workplace; &
- Other specific conditions as determined by the presiding
If the perpetrator does not comply with the conditions of their ADVO, then this can result in their civil proceedings becoming criminal proceedings.
Support Services in New South Wales:
How safe will my children and I be, really?
How safe will my children and I be, really?
When we have our first meeting with clients we ask questions to ascertain their immediate safety needs and learn about their circumstances to identify both their legal options and their support options.
We help clients create a safety plan for how to leave an abusive partner, whether immediate separation is possible or contingency planning is needed.
If you have children, we include them in this safety plan and help you with identifying the most relevant support services or avenues available. This is a confidential process that has you at the centre. You can then consider your options and hold the decision-making power about what comes next.
In the event you decide to apply for an FVO or ADVO, know that regardless of which state or territory the Orders are issued, they are recognised and enforceable Australia-wide.
A Family Violence Order or Apprehended Domestic Violence Order is a civil proceeding. However, if they breach the conditions of the Order, they will then be facing criminal charges.
Your safety and your children’s safety are of paramount consideration when providing you advice about your support and legal options. While we recommend seeking the support of violence support services, it is the family law advice that is often the vital missing piece from the exit strategy.
What to know if you are unsure you can (or should) get protection Orders
It is essential for you to be aware that when the Family Court will determine parenting arrangements, they will assess what arrangements will promote the safety of the children and each person who has care of the child(ren). This includes whether a parent acted to prevent the children from being exposed to family violence or domestic violence.
When care arrangements for children are to be determined, any delay in protecting children from family violence, can reflect poorly on your decision making and have an impact on how much time your children will spend with you. Any perceived inaction to protect children, even if you were the victim, can create other issues for you.
There is no doubt that these are very delicate circumstances you are facing. And, while the domestic violence crisis centres provide excellent essential services, the advice received from these support centres does not extend to include additional considerations from the Family Law perspective.
When the offender is your partner/spouse or your child’s other parent
Before filing an application, we recommend seeking advice from a family lawyer as to which Court is the appropriate forum for the issues you are facing, and then making a strategic decision in terms of what the likely trajectory will be.
For example, if you are considering or intend to separate from your partner or spouse, know that Orders can be made with the Family Law Court in conjunction with other matters such as determining custody (parenting arrangements) and how property is to be divided.
Typically speaking, the speed for which you can get a Family Violence Order or Apprehended Domestic Violence Order is far faster than what you can get in terms of the Family Court. However, what most people are unaware of is that the Family Court has all the same powers and more, with respect to personal protection in circumstances where there are allegations of family violence.
Running two sets of proceedings across two different Courts is more costly. So, it may be a better strategy to apply for a FVO in the Family Court simultaneously with parenting and property applications, as opposed to trying to run both separately.
At this point it is important to know that, in the context of FVO’s and ADVO’s in family court proceedings, if an FVO or ADVO is already in place from a state or territory Court, the Family Court cannot issue further injunctions (i.e. conditions of the AVO/ADVO). This situation necessitates returning to the issuing Court to request to change the Order if the existing provisions are inadequate.
An experienced family lawyer will make you aware of your options and you can weigh up the advantages and disadvantages of either applying for an FVO or ADVO in the Magistrate’s or Local Court, or combining them in the Family Law Court.
How to leave an abusive partner or spouse
While FVO’s and ADVO’s are faster to obtain, the Family Court possesses broader powers. And, after considering the advantages and disadvantages of pursuing both simultaneously, a strategic decision can be made to choose the right avenue to avoid significant costs associated with running two sets of legal proceedings.
Most importantly, reporting family violence without seeking legal advice can result in additional risk. So, if you can, be proactive, seek advice from a family lawyer who can help you devise a safety plan, inform you about your options in terms of protection orders, while also considering the family law context.
While it is important to commit to leaving an abusive partner, it is often the lack of clarity about the options available to people that stop them from getting the very best outcomes.
Consulting a family lawyer with experience in guiding clients on how to leave an abusive partner or spouse can ensure comprehensive preparation and avoid additional complications in parenting and property arrangements.
