---

The High Court of Australia — Australia’s highest court — has definitively stated that to adopt a new and separate defense of battered woman syndrome would go too far for the laws of Australia.^[635] However, battered woman syndrome can be a matter for expert evidence, as well as matters of common sense for a jury when deciding whether a defense is applicable. The High Court of Australia has acknowledged that expert testimony about the general dynamics of abusive relationships is admissible if it is relevant to the issues in the trial and proved by a qualified expert.^[636] The greatest relevance of such evidence will usually concern the process of “traumatic bonding,” which may occur in abusive relationships.^[637] This may be relevant to whether an accused acted reasonably in the circumstances, as is required under most state and territory legislation in Australia governing self-defense.

Every Australian jurisdiction has codified self-defense into its relevant criminal legislation. However, the formulation of the defense varies somewhat between states and territories, for example:

• In the context of family violence, Victoria and Western Australia do not require conduct (such as killing an abusive partner) to occur in response to an imminent attack for a self-defense argument to succeed. This formulation acknowledges situations in which a victim of domestic violence kills an abusive partner in response to a perceived threat that is ongoing.
• Other states and territories, such as Queensland, require a victim of domestic violence who has killed their abusive partner and who is relying on self-defense to demonstrate that they acted in response to a “specific assault that is objectively determined to have been dangerous.”
• Across all of the Australian jurisdictions, an accused must have reasonable grounds for believing that killing their partner was the only way to save themselves from death or serious bodily harm.^[638]

In practice, despite attempts to reform self-defense laws to encompass exactly these types of situations, most women who intentionally kill their abusive partners are not successful in relying on self-defense in Australia. Commentators have made several key observations about why this is the case.

One such observation is that the use of outdated understandings of intimate partner violence within the legal system automatically renders the use of defensive force against an abusive partner “unreasonable.” Another is that certain kinds of expert evidence that could provide valuable context around these issues and educate judges and juries about the defendant’s state of mind (such as evidence provided by social workers) may not be accepted. This was the case in the 2017 Supreme Court of Western Australia (Court of Appeal) case Liyanage v. State of Western Australia (outlined in the table below). Another possible reason is the requirement of imminence in most Australian jurisdictions.

The table below outlines the relevant legislation in each state and territory, along with the defenses available and relevant cases.

Queensland

Criminal Code Act 1899 (Queensland)

Self-defense in Queensland

• The Criminal Code Act 1899 (Queensland) recognizes four forms of self-defense, two of which provide a complete defense when the defensive force resulted in an intended or likely death.^[639] The provision that is most relevant to victims of abuse who use serious violence against their abusers is Section 271(2), which specifies the conditions for the use of lethal force in self-defense against an unprovoked assault. Some features of the defense of self-defense in Queensland limit its value for victims of abuse who respond with violence against their abusers. For example, Professors Mackenzie and Colvin from Bond University Faculty of Law state the following:^[640]

  In all of its forms, the defence requires there to have been an assault. The condition requires that the defender be responding to some specific action of an assailant. The defence is not available to someone who acts in anticipation of an attack, or a series of attacks which has not materialised into an assault at the relevant time, even where there has been a previous history of violence which may provide reasonable grounds for a belief that defensive violence is necessary to avert the danger.

  Where the force used was intended or likely to cause death or grievous bodily harm, the person must have believed on reasonable grounds that preservation from death or grievous bodily harm cannot otherwise have been achieved. This may focus inquiry on the narrow question of whether there was any other option for escaping the danger, regardless of the risks associated with the other option. If there was such an option, the defence might be excluded even though the use of lethal force was a reasonable choice in all the circumstances.

  The issue of the reasonableness of a person’s response to abuse could become confused with the issue of its proportionality to the violence involved in that abuse. This is particularly relevant to victims of abusive relationships who kill their abusers. The disparities of physical strength between male and female partners may force the weaker person to resort to a weapon for defence, with the risk of using force that might unfairly be judged excessive.

• Therefore, if a defending partner kills her abuser during an episode of physical abuse, then this type of case should not be problematic. Under Queensland’s general law of self-defense, the defender should be able to show, perhaps through previous serious violence, that she had reasonable grounds for her fear of grievous bodily harm or death.
• However, in the case of a “non-confrontational” killing, where the killing occurs when the abuser is sleeping or is otherwise not immediately threatening violence, self-defense may be very difficult to illustrate.^[641]

Section 304B — partial defense for victims of domestic violence who kill their abusers

• The Queensland Law Reform Commission previously stated that, in Queensland, it is “extremely difficult, if not impossible, to apply the defence of self-defence to a woman who kills her sleeping husband.”^[642] Section 304B of the Criminal Code Act 1899 (Queensland) regarding the “abusive domestic relationship defense” was enacted as a result of this commonly held view.^[643]
• Section 304B creates a partial defense for victims of serious domestic violence who intentionally kill their violent abusers in the reasonably grounded belief that the killing was necessary for their own self-preservation. If the defense succeeds, the accused will be convicted of manslaughter, despite the fact that the act would otherwise constitute murder. It also operates in addition to rather than instead of other defenses.^[644]Legal academics, such as Edgely and Marchetti, argue that this provision is ineffective and puts victims of abuse who kill in a more difficult tactical position than if it had not been enacted.^[645]

Case law

R v. Falls, Coupe, Cummings-Creed & Hoare [2010] QSC

• The accused, Susan Falls, shot and killed her husband. She had been subjected to numerous incidents of physical and emotional abuse throughout their marriage, including beatings, rape and threats to kill her as well as the couple’s children. Falls drugged the deceased and shot him twice as he slept in a chair, killing him. She was charged with murder.
• Both of the relevant self-defense provisions under Sections 271(2) and 273 of the Criminal Code Act 1899 (Queensland) and the defense of killing for preservation in an abusive domestic relationship (under Section 304B) were raised at trial.
• Two forensic psychiatrists were called by the defense, and they gave evidence about the history of violence and its effect on the accused.
• In this decision, the judge clearly articulated that the fact that someone “is battered for years doesn’t automatically give them a defence.” Instead, whether they have a defense “depends on whether their actions in the circumstances were reasonable.”^[646]

Victoria

Crimes Act 1958 (Victoria)

Self-defense in Victoria

• The applicable test of self-defense in Victoria is found in Section 322K of the Crimes Act 1958 (Victoria). It requires that, at the time of the killing, the defendant believed that it was necessary to do what they did and that there were reasonable grounds for that belief. The first part of the test is therefore a subjective inquiry into what the accused believed the level of risk to them was if they did not kill their abusive partner. However, an accused would only be acquitted of murder based on self-defense if the jury found that the defendant had “reasonable grounds” for their subjective belief. This is an objective inquiry into the facts.
• In Victoria, self-defense in the context of family violence can apply even in situations where the defendant has responded to a harm that is “not immediate” and where the force they used was not proportionate to the threat faced (under Section 322M).
• This is a departure from the previous position, which required that the harm be imminent to successfully prove self-defense. The imminence requirement was abandoned after the Victorian Law Reform Commission’s Defences to Homicide: Final Report stated that women may kill their abusive partners “when they are asleep or have their guard down” and that intimate partner homicide typically involves the use of a weapon. These “non-confrontational” killings pose a problem, as the woman’s actions against her violent partner may seem “disproportionate” to the threat posed and by extension “unreasonable.”^.[647] By dispensing with the imminence requirement, the new formulation of the defense takes into account the reality that women in long-term abusive relationships may perceive a serious threat of harm to themselves and act accordingly, even if they are not being attacked at the time.

Case law

Director of Public Prosecutions (DPP) v. Walker [2018] VSC 83

• The accused and the deceased were in a relationship for over two years, during which time there was a history of arguments, physical violence and drug use. On the day of the offense, the accused and deceased argued and the accused wished to leave the home. The deceased prevented the accused from leaving and handed a knife to the accused. The accused took a knife and swung in the deceased’s general direction, inflicting a single stab wound that killed the deceased.
• The accused was charged with manslaughter and sentenced to seven years in prison. The judge had regard to the fact that the accused had post-traumatic stress disorder and a major depressive disorder as a result of the abuse she had suffered, and that she had entered an early guilty plea, reducing her sentence.

Director of Public Prosecutions (DPP) v. Bracken (Ruling No 16) [2014] VSC 96

• Although this case pertains to a male victim of abuse, it has been included because the principles stated are transferrable to the battered woman context.
• The defendant was on trial for the murder of his de facto partner. He argued that he shot his de facto partner in self-defense, and that he had been subject to psychological and physical violence over the course of the relationship. The argument that the killing was in self-defense was successful and he was acquitted.
• One of the key issues was whether evidence of family violence or “social framework” evidence within the meaning of the then Section 9AH of the Crimes Act 1958 (Victoria) was admissible.
• The judge accepted “social framework” evidence, including a history of his abusive relationship, and evidence about his social and circumstances generally, which provided insight into why the defendant remained in the relationship instead of leaving.

Oslad v. The Queen (1998) 197 CLR 316

• The appellant and her son were charged with the murder of the deceased, the appellant’s husband and the boy’s stepfather. At trial, the pair relied on self-defense and provocation (which no longer exists in Australian law as a defense). These defenses were raised against an “evidentiary background of tyrannical and violent behaviour by Mr Osland over many years.”
• The appellant raised expert evidence of battered woman syndrome in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was “consistent with it being a battering relationship.”

It was accepted by the High Court of Australia that expert evidence of heightened awareness of danger might be directly relevant to self-defense, particularly to the question of whether the battered woman believed she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. Additionally, the history of the relationship as shown through the evidence may bear on the reasonableness of that belief.^[648]

New South Wales

Crimes Act 1900 (New South Wales)

Self-defense in New South Wales

• As in Victoria, the law of self-defense, outlined in Section 418 of the Crimes Act 1900 (New South Wales), applies if a victim of abuse subjectively believed that their conduct was necessary to defend themselves or another person. Additionally, the accused’s conduct must have been a reasonable response in the circumstances as they perceived them.
• In 2001, the partial defense of excessive self-defense (under Section 421) was also reintroduced in New South Wales. The partial defense applies if a person uses force that results in death, but where defense lawyers cannot show that the conduct was a reasonable response in the circumstances, only that the person believed that the conduct was necessary to defend herself. Mackenzie and Colvin confirm that under Section 421(2), an abused woman who kills her partner will be found guilty of manslaughter if the partial defense applies.^[649]

Criminal Code Act Compilation Act 1913 (Western Australia)

Self-defense in Western Australia

• In Western Australia, under Section 248 of the Criminal Code Act Compilation Act 1913 (Western Australia), an act is self-defense if it is a harmful act in response to another harmful act, either directed at the person raising the defense or in defense of another person. Similar to Victoria, the Western Australia conceptualization of self-defense includes conduct done in response to non-imminent acts.
• Also in line with Victoria, the killing must be, in the subjective view of the perpetrator, a reasonable response in the circumstances. Additionally, there must be reasonable grounds for those beliefs. The test for “reasonableness” is therefore two-pronged. There are two main issues that arise with the defense of self-defense in cases in Western Australia where women intentionally kill their abusers, as follows:
• Feminist critics have argued that the defense does not provide adequately for a situation where one party is physically smaller and weaker than the other is, and where the need to act defensively may be protracted and ongoing. The theory of battered woman syndrome has allowed the defense of self-defense to be extended to a situation where a woman kills an abusive partner, despite the act occurring at a time when no immediate threat was posed to her safety.^[650]
• The terms of Section 248 have been described as creating a “torturous doctrinal problem” relating to the question of whether an accused’s act was a “reasonable response.”^[651] Proving that an act was a “reasonable response” is particularly difficult when certain kinds of expert evidence that could provide valuable context and educate judges and juries are rejected.

Case law

Liyanage v. State of Western Australia (2017) 51 WAR 359

• The appellant killed her husband by striking him with a mallet. She provided evidence that the deceased was violent and controlling, and regularly sexually assaulted her.
• The Supreme Court of Western Australia (Court of Appeal) found that while the appellant was suffering from battered woman syndrome, the killing was still not justified. A jury found the appellant not guilty of murder but guilty of manslaughter, and sentenced her to four years of imprisonment.
• The evidence of a social worker was adduced in relation to the psychological impact of prolonged exposure to domestic violence (battered woman syndrome). However, the court held that the evidence did not explain the appellant’s state of mind or quantify the extent of the risk as the appellant perceived it.
• The court said that for “social context evidence” to be admitted in family violence cases, for example, about the history of the parties’ relationship, the defendant’s culture or the nonpsychological impediments to leaving a violent relationship, counsel must explain “precisely and specifically how it is relevant to the issues which the jury are required to decide.”
• This case resulted in a finding that the appropriate qualifications for giving evidence regarding battered woman syndrome were limited to psychiatry or psychology; social work did not qualify.

South Australia

Criminal Law Consolidation Act 1935 (South Australia)

Self-defense in South Australia

• The self-defense law for South Australia is found in Section 14B of the Criminal Law Consolidation Act 1935 (South Australia).
• Under this section, an abused woman would have a defense to any offense for the following reasons:
  • if she “genuinely believed” that her conduct was “necessary and reasonable” for a defensive purpose
  • if the conduct was, in the circumstances as the defendant genuinely believed them to be, “reasonably proportionate” to the threat that she genuinely believed to exist
  • a partial defense in Section 15(2) exists if a genuine belief can be proven but proportionality cannot — a partial defense to a charge of homicide would result in a woman being convicted of manslaughter for killing her abusive partner

Tasmania

Criminal Code Act 1924 (Tasmania)

Self-defense in Tasmania

• The self-defense law for Tasmania is found in Section 46 of the Criminal Code Act 1924 (Tasmania).
• Under this section, an abused woman would be justified in using, in defense of herself, such force as is reasonable in the circumstances as she believes them to be.
• Although the language of this section is different to that of the other jurisdictions, its effect is similar.

Australian Capital Territory

Criminal Code Act 2002 (Australian Capital Territory)

Self-defense in the Australian Capital Territory

• The self-defense law for the Australian Capital Territory is found in Section 42 of the Criminal Code Act 2002 (Australian Capital Territory).
• Under this section, a person is not criminally responsible for an offense if they kill or harm their abusive partner in the belief that doing so is necessary to defend themselves and it is a reasonable response in the circumstances as the person perceives them.
• Reasonableness is assessed objectively.

Northern Territory

Criminal Code Act 1983 (Northern Territory)

Self-defense in the Northern Territory

• The self-defense law for the Northern Territory is found in Section 43BD of the Criminal Code Act 1983 (Northern Territory).
• Under this section and in line with the Criminal Code Act 2002 (Australian Capital Territory), a person is not criminally responsible for an offense if they kill or harm their abusive partner in the belief that doing so is necessary to defend themselves or another person and it is a reasonable response in the circumstances as the person perceives them.
• Reasonableness is assessed objectively.

Federal (commonwealth)

Criminal Code Act 1995 (commonwealth)

• In Australia, murder and most other crimes that would occur in this context are governed by state legislation, not federal laws.
• Examples of crimes that would attract commonwealth (federal) jurisdiction are fraud, serious drug offenses, human trafficking and terrorism.

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In 2014, then Sex Discrimination Commissioner Elizabeth Broderick of the Australian Human Rights Commission stated the following:^[652]

Domestic and family violence is a workplace issue. Having domestic/family violence as a new protected attribute in anti-discrimination legislation can provide another avenue of protection for victims and survivors who experience discrimination, as well as lead to improved measures for addressing domestic/family violence.

The Australian Human Rights Commission has recognized the tangible costs and negative impacts on employees experiencing domestic violence, for example:

1. health costs, as intimate partner violence is the leading contributor to death, disability and illness in women aged 15-44 in Australia^[653]
2. economic costs, as a 2009 report estimated the cost of intimate partner violence to the Australian economy to be around AUD 8.1 billion^[654]
3. workplace costs, a 2016 study found that 62% of women in Australia who are experiencing intimate partner violence are employed^[655]
4. impacts on employees, as the 2011 National Domestic Violence and Workplace Survey found that the main impact of violence was on work performance: 16% of victims reported being distracted, tired or unwell in a way that affected their work performance, and 10% reported needing to take time off work^[656]

In addition to the above, instances of family and domestic violence can increase during periods of emergency, such as the COVID-19 pandemic. Safe Work Australia recognizes that if a perpetrator makes threats or carries out violence against a family member while they are at work (including while working from home), this is a work-related hazard occurring in the workplace.^[657]

Domestic violence advocates argue that victims should have legal protections under anti-discrimination laws and, due to the highly gendered nature of the issue, victims should be able to claim the protected attribute of gender.^[658] However, this is yet to be considered by an Australian court and no specific protected attribute (other than gender) for domestic violence victims has been specifically introduced into any anti-discrimination legislation in Australia; therefore, no anti-discrimination law avenues are currently available to employees suffering domestic violence in Australia.

However, it has been suggested that an unfair dismissal claim under the Fair Work Act 2009 (commonwealth) may potentially be available to a victim in instances where an employer dismisses an employee due to absenteeism, which they know to be a result of domestic violence. Whether a dismissal is “unfair” ultimately depends on whether the dismissal is found to be harsh, unjust or unreasonable in the circumstances.

In Australia, only the Australian Capital Territory has a workplace-specific court order available to employees suffering from domestic violence, called a workplace protection order. The employer is the applicant of a workplace protection order and applies on behalf of the affected employee(s).^[659]

In all other states and territories, two types of general orders exist to protect individuals from physical and mental harm that may assist employees, as follows:

1. domestic violence orders (also referred to as family violence orders)
2. restraining orders or intervention orders^[660]

Domestic violence orders protect individuals from a family member using domestic violence.^[661]

Restraining orders and intervention orders are not limited to family members. They protect individuals from many others, such as neighbors, friends, work colleagues, employers, employees, landlords, strangers or anyone else the individual may know.^[662] Some Australian states and territories use intervention orders instead of domestic violence orders (which function similarly), while others have intervention orders available in addition to domestic violence orders.

Both types of orders contain conditions that prohibit the person whom the order is taken out against (called the respondent or defendant) from doing certain things to protect the applicant or victim (also referred to as the protected person).

A condition commonly attached to these orders is to prohibit the respondent from being in close proximity to or in the vicinity of the protected person. This includes being in the vicinity of the premises at which a protected person works.

These orders can be final (with long-standing effect) or interim (temporary or short-term effect). Many orders are ongoing until revoked by a court.

Since 25 November 2017, all domestic violence orders issued in an Australian state or territory are automatically recognized and enforceable across the country. This means that local police, regardless of wherever the order was issued, will enforce the conditions of the order.^[663]

Generally, a person can apply for a domestic violence order through local police or a magistrates’ court. If applying through the police, the police are able to make the application to the court on the individual’s behalf. The applications vary between states and territories, but application information is commonly available on the relevant magistrates’ court (or equivalent court’s) websites.

The below table provides further details of each of these orders in each state and territory and the conditions commonly available.

 Queensland

• In Queensland, individuals can apply for a domestic violence order.
• There are two types of domestic violence orders: a protection order and a temporary protection order. Most protection orders last for five years, while temporary protection orders are for a shorter period.
• For someone in immediate danger, a temporary protection order and a protection order can be made at the same time.

Conditions

• Every domestic violence order contains a standard condition that the person subject to the order (the respondent) must be of good behavior and must not commit domestic violence against the person applying for the order (the aggrieved) or any other person named on the order (this includes children, relatives or friends if they are at risk of violence).
• If a domestic violence order is made against someone who holds a weapons license, they cannot own weapons and their license will be suspended or canceled. Additionally, they cannot hold another license for up to five years.
• Domestic violence orders can contain conditions to stop someone from doing the following:

• approaching the aggrieved at home or work
• staying in a home they both currently share or previously shared, even if the house is owned or rented in the respondent’s name
• approaching relatives or friends (if named in the order)
• going to a child’s school or day care center

Any additional conditions can be listed in the application form for the order.^[664]

Victoria

Family violence intervention order

Victorian Act

• In Victoria, individuals can apply for a family violence intervention order.
• Family violence intervention orders can be made where the people involved share or shared an intimate personal relationship (e.g., married, de facto, domestic partners or ex-partners), parents and children (including stepchildren), relatives by birth, marriage or adoption or other people who are treated as family (including a carer or guardian).
• Family violence intervention orders can be applied for at a local magistrates’ court or through the Victoria Police. If an immediate order is required, a magistrate can put in place an interim intervention order. The interim intervention order will provide protection until both parties can attend court. There is also the option to apply for a protection order online.

Conditions

• There are mandatory conditions as well as additional conditions a protected person may apply to the court for to be included in the family violence intervention order.
• Mandatory conditions prohibit the following:
  • committing family violence against the protected person
  • intentionally damaging the protected person’s property or threatening to do so
  • attempting to locate or follow the protected person or keep them under surveillance
  • publishing on the internet or by email or another electronic communication any material about the protected person
  • contacting or communicating with the protected person by any means
  • approaching or remaining within a certain distance of the protected person
  • going to or remaining within a certain distance of where the protected person lives, works or attends school or childcare
  • getting another person to do anything the respondent must not do under the order
• Additional conditions that the protected person may ask the magistrate for include the following:
  • to return the personal property of the protected person or a family member
  • to return jointly owned property that allows the protected person’s everyday life to continue with little disruption
  • to hand in any firearms or weapons to the police
  • to suspend or cancel any firearms authority, weapons approval or weapons exemption^[665]

New South Wales

Apprehended domestic violence order

NSW Act

• In New South Wales, individuals can apply for apprehended domestic violence orders.
• Apprehended domestic violence orders can be made where the people involved are related, living together or have previously been in any of these situations.
• Apprehended domestic violence orders concern the “protected person” who will make the application.
• A court can make an apprehended domestic violence order if the defendant consents and, if after hearing the evidence, the court is satisfied that there are fears for the individual’s safety and those fears are reasonable, or the defendant has been served with the apprehended domestic violence order but did not appear in court.

Conditions

• An apprehended domestic violence order includes three mandatory conditions, which prohibit the defendant from the following:
  • assaulting or threatening the protected person
  • stalking, intimidating or harassing the protected person
  • intentionally or recklessly destroying or damaging any property that belongs to or is with the protected person
• Additional conditions can be included to prevent the defendant from the following:
  • approaching or contacting the protected person
  • going near where the protected person may live, work or go
  • approaching the protected person or being in their company after drinking alcohol or taking illegal drugs
  • trying to find the protected person
  • any other conditions the court thinks are necessary for the safety and protection of the protected person^[666]

Western Australia

Family violence restraining order

WA Act

• In Western Australia, individuals can apply for a family violence restraining order.
• Family violence restraining orders provide protection from persons with whom the person making the application is or was in a family relationship. This includes people who are married, de facto partners, ex-partners, related to each other (including by culture or kinship) or otherwise in an intimate or family-type relationship.

Conditions

• A family violence restraining order can prohibit the defendant from doing certain things, including the following:

• coming to or near where the protected person lives or works
• being at or near a certain place
• coming within a certain distance of the protected person
• contacting or trying to communicate with the protected person in any way^[667]

South Australia

Intervention order

Interventions Orders (Prevention of Abuse) Act 2009 (South Australia)

• In South Australia, individuals can apply for an intervention order.
• Intervention orders can either prohibit the defendant from doing certain things or require the defendant to do certain things

Conditions

• A defendant may be prohibited from the following:
  • being on or in the vicinity of premises at which a protected person resides or works
  • being on or in the vicinity of specified premises frequented by a protected person
  • being in a specified locality
  • being within a specified distance of a protected person
• Any intervention order must include a firearms term requiring the defendant to surrender any firearm and any associated license or permit, and suspend any license or permit while the order is in force. In addition, it disqualifies the defendant from having a license or permit relating to a firearm while the order is in force.
• Additional orders that can be made include intervention program orders, tenancy orders, problem gambling orders and an order about when the defendant may apply to vary or revoke the order.^[668]

Tasmania

Family violence/restraint order

Tasmanian Act

• In Tasmania, individuals can apply for family violence orders or restraint orders.
• These can be applied for at the magistrates’ court by victims of domestic violence, family violence or other unwanted behaviors such as threatening behavior, damage to property or trespass.

Conditions

• A defendant may be prohibited from the following:
  • coming near the protected person, or directly or indirectly threatening, harassing, stalking or assaulting the protected person
  • coming near, going on or damaging the protected person’s property
  • contacting the protected person by mail, email, phone, text messages, Facebook, etc.
  • using other people to contact the protected person^[669]

Australian Capital Territory

Workplace protection order/family violence orders

Personal Violence Act 2016 (Australian Capital Territory)

Workplace protection order

• In the Australian Capital Territory, an employer can apply for a workplace protection order to protect employees against someone who has committed or who is likely to commit personal violence against a person in the workplace.
• The applicant must be the legal entity who is the employer at the workplace (as opposed to the trading name).
• If the applicant is not the employer, evidence must be attached evidencing that the applicant is authorized to make the application on behalf of the employer (for example, if applying on behalf of a company, attaching evidence that the applicant is a director of the company or a signed authority).

Conditions

• Conditions of a workplace protection order include prohibiting the respondent from the following:
  • entering the workplace
  • being within a specified distance of the workplace (including exceptions)
  • engaging in behavior that constitutes personal violence in the workplace
  • contacting or approaching a person in the workplace (more than one individual may be listed)
  • causing someone else to engage in personal violence in relation to the workplace
  • any other conditions that would ensure the safety and protection of the affected person^[670]

Family violence order

Additionally, individuals may apply for a family violence order to prohibit a family member from committing violence against the protected person.^[671]

Domestic violence orders

NT Act

• In the Northern Territory, persons may apply for a domestic violence order. Domestic violence orders protect victims, their property and their children from violence that occurs in domestic relationships.
• In addition to police officers, a territory families officer may apply for a domestic violence order on behalf of the protected person.

Conditions

• Common conditions prohibit the defendant from the following:
  • contacting the protected person
  • using violence against the protected person
  • causing damage to the protected person’s property
  • verbally abusing the protected person
  • stalking and harassing the protected person
  • selling the protected person’s property without their knowledge
  • pressuring the protected person into giving the respondent money
  • protecting the protected person’s children from exposure to domestic violence^[672]

Family violence order

Family Law Amendment (Federal Family Violence Orders) Bill 2021 (commonwealth)

• There are currently no orders available at a commonwealth level.
• However, on 24 March 2021, the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (commonwealth) was introduced in the Parliament of Australia.
• The bill aims to establish new family violence orders at a federal level. If successful, the orders would be able to be criminally enforced when breached.^[673]

Australia does not have a “for good cause” termination or severance doctrine. Instead, individuals may pursue other employment law avenues regarding termination of employment, such as making a claim for unfair dismissal under the Fair Work Act 2009 (commonwealth). An unfair dismissal occurs when an employee is dismissed from their job in a manner that is harsh, unjust or unreasonable^.[674]

Importantly, “unfair dismissal” claims are narrower compared to a “good cause” doctrine. The concept of “unfair dismissal” mainly concerns due process and the reason for the employee’s termination. Further, certain preconditions must be met for an individual to be eligible to make an unfair dismissal claim, including the following:^[675]

1. The applicant must have completed the minimum period of employment (12 months if the employer is a small business, otherwise six months).
2. The applicant’s earnings must be less than the high income threshold (currently AUD 158,500 per year).^[676]
3. The applicant’s employment must be covered by a modern award or enterprise agreement.

Currently, domestic violence in itself does not constitute a ground for a successful unfair dismissal claim. However, family and domestic violence could be taken into account in the context of a claim for unfair dismissal, weighing toward the dismissal being characterized as “harsh,” depending on the circumstances (for example, where an employer is aware that an employee is experiencing domestic violence and/or there is a clear link with the reason for dismissal).^[677]

There is limited case law on this point; however, absenteeism has been considered in the context of unfair dismissal claims involving domestic violence. The case of King v. D.C Lee & L.J Lyons [2016] FWC 1664 stands for the proposition that where an employer dismisses an employee due to absenteeism that they know to be the result of domestic violence, the employee’s claim will be valid and the employee will be entitled to compensation.

Domestic violence has formed part of the background in unfair dismissal claims in a few cases, some examples of which are outlined in the table below.

Rebecca Meyer v. BMS Retail Group Pty Ltd T/A Champions IGA [2018] FWC 7315 

Facts

An IGA supermarket dismissed a female employee suffering domestic violence who had been working at the location for 10 years. The supermarket dismissed the worker because her attendance had become erratic and she had been warned on multiple occasions.

Decision

The Fair Work Commission upheld the termination stating that the employer had been “very supportive” and “went to extraordinary lengths over an extended period of time to assist in dealing with issues outside of work.” 

Moghimi v. Eliana Construction and Developing Group Pty Ltd [2015] FWC 4864

Facts

A construction firm employed the worker and her husband. An apprehended violence order had been imposed on him because of a domestic violence incident, which meant he could only come within a specified maximum distance from her (3 meters). As a result, the firm dismissed the female worker. They considered the male worker to be more important in the business and the female worker was notified that the reason for her dismissal was because the order meant that she could no longer work in the office.

Decision

 The Fair Work Commission stated that there are limits to the extent to which an employer can be expected to accommodate the private lives of employees, but ultimately held that the employer could have made arrangements for both employees. The Fair Work Commission held that there was no valid reason for the dismissal and she was not given an opportunity to respond to the reason given for dismissal. The Fair Work Commission ordered the employer to pay compensation. 

King v. D.C Lee & L.J Lyons [2016] FWC 1664

Facts

In this case, the employee was dismissed after being absent from the workplace to attend a court hearing relating to domestic violence. The employee was a victim of domestic violence and the perpetrator was her partner. The employee only told a select number of people at her workplace about her circumstances and this did not include her supervisor. The employee had been previously warned by her employer about being absent from work with no warning.

Decision 

The Fair Work Commission held that the applicant was protected from unfair dismissal. While the applicant should have told the firm sooner that she would be absent, there was “a lot going on,” which excused the day. The Fair Work Commission ordered the employer to pay compensation. 

In Australia, employees can take time off — referred to as “leave” — for a number of reasons (and, in some cases, for no reason). Through these leave entitlements, family members and friends of domestic violence victims can use some of these leave entitlements to assist domestic violence victims. Victims themselves may also use some of these leave entitlements in respect of their own domestic violence situations.

The National Employment Standards, located in the Fair Work Act 2009 (commonwealth), outline the minimum statutory leave entitlements for all employees (although, more generous entitlements may be included in an individual’s employment contract).^[678]

The National Employment Standards provides for specific “unpaid family and domestic violence leave,” which can be taken where an employee is experiencing domestic violence. It entitles employees to five days of unpaid family and domestic violence leave each 12-month period.^[679] All employees, including casual and part-time workers, are entitled to this leave and it does not accumulate from year to year. The leave renews in full each year and it can be taken continuously or one day at a time.

An employee may take unpaid family or domestic violence leave if the following occur:

1. if the employee is experiencing family and domestic violence
2. if the employee needs to do something to deal with the impact of the family and domestic violence
3. if it is impractical for the employee to do that thing outside the employee’s ordinary hours of work^[680]

The legislation provides examples of an action that an employee experiencing family and domestic violence may need to take that would fall within paragraph (b) above, such as arranging for the safety of themselves or a close relative (including relocation), attending urgent court hearings or accessing police services.^[681] A close relative of an employee is defined as either a member of the employee’s immediate family or related to the employee according to Aboriginal or Torres Strait Islander kinship.^[682] Notice and evidence requirements must be complied with.

There are other types of leave that a domestic violence victim or their family member could use in some circumstances relating to domestic violence. A summary of the leave that could be taken in domestic violence situations is set out below.

Type of leave^[683]

Annual leave (paid)

Personal leave (paid personal/carer’s leave) 

Personal/carer’s leave can be taken when an employee is unfit for work due to their own injury or illness (which could include an injury/illness sustained by the employee due to domestic violence), or when the employee is required to provide care to a family member or member of their own household due to an injury, illness or unexpected emergency.^[687]

An unexpected emergency could include an emergency in circumstances of domestic violence and, therefore, personal (carer’s) leave could be taken by employees to assist their family or household member who is suffering from domestic violence. Employees could also take personal (carer’s leave) to provide care to their family or household member who has suffered an injury or illness as a result of domestic violence.

There are notice and evidence requirements for taking paid personal leave.^[688]

Full-time employees are entitled to 10 days of paid personal/carer’s leave each year (part-time employees are entitled to a pro rata amount).^[689]

In addition to paid personal leave, employees are entitled to two days of unpaid carer’s leave each year (for the same permissible occasions as for paid carer’s leave set out above).^[690] This leave could be taken by employees to assist their family or household member who is suffering from domestic violence.

There are notice and evidence requirements for taking unpaid carer’s leave.^[691]

Unpaid family and domestic violence leave can be taken where the employee is experiencing family and domestic violence, the employee needs to do something to deal with the impact of the family and domestic violence, and it is impractical for the employee to do that thing outside the employee’s ordinary hours of work.^[692]

There are notice and evidence requirements for taking unpaid family and domestic violence leave.^[693]

Long service leave is a specific leave entitlement available to employees who have been working for a long period for the same employer (the entitlement generally crystallizes after seven to 10 years in most states and territories of Australia). There is no reason required for taking the leave, but the timing of taking long service leave generally needs to be agreed with the employer. In some states and territories, it can only be taken in particular blocks of time.

Where long service leave has accrued and an employee is eligible to take it, this could be used in respect of their own domestic violence situation or to allow time to assist an immediate family/household member suffering from domestic violence.^[694]

***

Employers and employees can also agree on additional paid or unpaid leave that goes beyond the National Employment Standards. Employees in Australia may be, on occasion, successful in requesting their employer’s agreement to some extra unpaid leave if they are dealing with a domestic violence situation.

Employees may also be entitled to additional leave (paid and/or unpaid) of various types under an enterprise agreement. There have been some recent campaigns by unions in Australia seeking for particular employers/industry sectors to provide paid domestic violence leave.

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Cancellation of a visa

Only the minister or a delegated officer has the power to refuse or cancel a person’s visa. A perpetrator of domestic and family violence, family members or other people in the community cannot cancel a victim’s visa.

Visa holders experiencing domestic and family violence will not have their visa canceled if their relationship breaks down because of domestic and family violence. Where domestic violence has occurred, individual visa holders can continue their application for a partner visa, even if the relationship that forms the basis of their application has broken down.

However, a perpetrator’s visa may be refused or canceled if they commit domestic and family violence. This is because they will not meet the requirement of being a person of “good character.”

The violence must have occurred while the relationship was in existence and captures a broad range of actions, including physical, emotional or financial threats, intimidation, violence or other abuse. As such, before assessing the family violence claim, the Department of Home Affairs (DOHA) must determine whether the married or de facto relationship was, before the breakdown, genuine and continuing: Regulations 1.23(3), (5), (7), (12) and (14) of the Migration Regulations 1994 (commonwealth) (“Regulations”). The DOHA is to have regard to the following evidence (although it is not limited to these considerations):

• the date which the DOHA was advised that the relationship commenced and ceased, including withdrawal of sponsorship
• previous advice from either the applicant or sponsor that the relationship had broken down
• advice about the commencement of separation/divorce proceedings

Practice tip: When completing a family violence claim, make sure to include appropriate evidence to show that the relationship existed between the visa applicant and the alleged perpetrator when the family violence occurred.

Partner visa holders

Victims of domestic and family violence can apply for consideration under the special provisions relating to family violence in the Regulations. Victims may be eligible for a visa if the following circumstances apply:

• you have married your spouse while the holder of a prospective marriage visa (subclass 300) and applied for a partner visa (subclass 820/801)
• you are awaiting the outcome of your application for a temporary partner visa (subclass 820)
• you have been granted a temporary partner visa (subclass 820)
• you have entered Australia as the holder of a provisional partner visa (subclass 309)
• you or your family members have experienced domestic and family violence
• your relationship has ended

To be considered under the family violence provisions, victims must provide evidence to the DOHA of the following:

• if you hold or held a prospective marriage visa, you would have continued to be your sponsor’s spouse but your relationship has broken down
• for partner visas, you would have continued to be your sponsor’s de facto partner or spouse but your relationship has broken down
• domestic and family violence directed at you, your family members, the alleged perpetrator’s family members, or your or the alleged perpetrator’s property took place in your relationship

Victims can use different kinds of evidence to establish the above, including the following.^[695]

1)

Type of evidence

Medical report, hospital report, discharge summary or statutory declaration that is made by either of the following:

• a person who is registered as a medical practitioner and who is performing the duties of a medical practitioner
• a person who is registered as a nurse within the meaning of Section 3 of the Health Insurance Act 1973 and who is performing the duties of a registered nurse

Includes the following details

• identifies the alleged victim
• details the physical injuries or treatment for mental health that is consistent with the claimed family violence

2)

 Type of evidence

Either a report, record of assault, witness statement or statutory declaration that is made by the following:

• a police officer of a state or territory
• a police officer of the Australian Federal Police
• a witness statement that is made by someone other than the alleged victim to a police officer during the course of a police investigation

Includes the following details

• identifies the alleged victim, and identifies the alleged perpetrator
• details an incident of family violence

3)

 Type of evidence

Report or statutory declaration made by an officer of the following:

• a child welfare authority
• a child protection authority of a state or territory

Includes the following details

• details fears for the dependent child’s safety due to family violence within the household
• identifies the alleged perpetrator

4)

 Type of evidence

Letter or assessment report made by the following:

• a women’s refuge
• family/domestic violence crisis center
• on the organization’s letterhead

Includes the following details

• states that the alleged victim has made a claim of family violence
• states whether the alleged victim was subject to family violence
• identifies the alleged perpetrator
• details any evidence used to form the opinion

5)

Type of evidence

Statutory declaration made by the following:

• a member of the Australian Association of Social Workers
• a person who is eligible to be a member of that association
• who has provided counseling or assistance to the alleged victim while performing the duties of a social worker

Includes the following details

• states in their opinion the alleged victim was subject to family violence
• details the reasons for the opinion
• identifies the alleged perpetrator

6)

Type of evidence

Statutory declaration made by a registered psychologist in a state or territory who has treated the alleged victim while performing the duties of a psychologist

Includes the following details

• states in their opinion that the alleged victim was subject to family violence
• details the reasons for the opinion
• identifies the alleged perpetrator

7)

Type of evidence

Statutory declaration made by a family consultant appointed under the Commonwealth Act or a family relationship counselor who works at a family relationship center listed on the Australian government’s Family Relationships website

Includes the following details

• states that the alleged victim has been treated or counseled by the family consultant or family relationship counselor
• states that in their opinion the alleged victim was subject to family violence
• details the reasons for the opinion
• identifies the alleged perpetrator

8)

Type of evidence

Statutory declaration or a letter on the school’s letterhead made by a school counselor or school principal in their professional capacity

Includes the following details

• states that they have made or been made aware of observations that are consistent with the alleged victim’s claims that they were subject to family violence
• identifies the alleged perpetrator
• provides details of those observations

What happens if the claim is not accepted?

In cases of non-judicially determined claims of family violence, if the DOHA (or the tribunal) is not satisfied that family violence has occurred, then, under Regulation 1.23(10)(c)(i), the application can be referred to an independent expert (as defined under Regulation 1.21(1)) for further consideration. An independent expert for this purpose is a suitably qualified person employed by or contracted to provide services to an organization that is specified in a gazette notice (F2013L00586 [02/04/2013]). Under Regulation 1.23(1C), the DOHA (or the tribunal) must accept the opinion of the independent expert as to whether the family violence has or has not occurred.

If an independent expert has determined that family violence has not occurred, the alleged victim will be provided with an opportunity to comment on any adverse information that was relevant to their decision. If the independent expert’s opinion remains unchanged following the alleged victim’s response, the applicant must be taken not to have suffered family violence. Unless the visa application can proceed on other grounds, the applicant will fail to meet the visa eligibility criterion relating to family violence, which generally will lead to the refusal of the visa.

Changes in relationship

If a person is experiencing domestic and family violence and if they are concerned about their visa status, they can contact the DOHA to discuss their situation. Moreover, if a victim’s relationship status has changed due to domestic and family violence, they can inform the DOHA by doing the following:

• completing the online form your relationship has changed
• submitting a completed Form 1022 — notification of changes in circumstances
• contacting their processing officer directly
• calling 131 881
• sending a letter to the DOHA

Unless there is an immediate threat to a person’s life or an immediate risk of harm and where mandatory child reporting obligations exist, the DOHA will not refer the matter to the police (if it has not already done so) without the person’s consent.

The DOHA also recommends that victims of domestic and family violence set up their own ImmiAccount and remove their application from any other ImmiAccounts (e.g., a former partner or migration agent). Further information on this process can be accessed  here.

We have not found any specific provisions for immigration remedies to be granted as a result of a domestic abuse victim’s cooperation with law enforcement. From a practical perspective, law enforcement’s involvement may provide helpful evidence in forming part of a case to apply for leave to remain in Australia (see above for more detail), but there is no guarantee.

Instances of domestic and sexual violence by non-state actors where the state is unable or unwilling to provide effective protection to the victims are well recognized as bases for claims for asylum in Australia.

Per Section 36(2) of the Migration Act 1958 (commonwealth), a protection (Class XA) visa may be granted to a noncitizen in Australia to whom the minister is satisfied that Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees, as amended by its 1967 Protocol (“Refugee Convention”).

According to the Refugee Convention, a refugee is a person who is outside their own country and who is unable or unwilling to return due to a well-founded fear of being persecuted because of the following (together, “Prerequisite Grounds”):

• their race
• their religion
• their nationality
• their membership of a particular social group
• their political opinion

An asylum bid by a victim of domestic violence for a protection (Class XA) visa depends on three elements: 

1. the membership of the claimant of a “particular social group,” which is at least one of the Prerequisite Grounds
2. a nexus between that particular social group and the harm suffered by the claimant
3. an inability or unwillingness of the state in question to assist

Australia’s refugee status decision-makers routinely consider the claims of those at risk of family and domestic violence if returned to their home country. The Australian courts have demonstrated a willingness to take a holistic approach to the reconciliation of domestic violence-related asylum claims with the requirements of the Refugee Convention. However, the Australian judiciary is ambiguous as to any definitive ruling on the legitimacy of such claims, preferring to set guidelines and a case-by-case assessment policy.

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There is nothing in the reviewed materials indicating that a military protective order is available to a victim of domestic violence.

However, a family and domestic violence working group, comprising of representatives across each of the services and the Defence Australian Public Service, is developing and implementing a range of strategies designed to respond compassionately to victims and reduce the effects of violence on families.

The Defence Family and Domestic Violence Strategy 2017-2022 (“Strategy”) sets out the Department of Defence’s objectives and key areas of focus and principles, and aims to do the following:

• ensure the safety of those subjected to or affected by the use of family and domestic violence
• provide those subjected to or affected by family and domestic violence with appropriate immediate support and referral to professional services
• provide Department of Defence personnel with the skills, knowledge and confidence to identify people subjected to and affected by family and domestic violence, and respond effectively to their needs
• promote accurate understanding of family and domestic violence and its impact on the workplace

The Strategy is founded upon the key principle that family and domestic violence is unacceptable in any form, and that perpetrators will be held accountable through informal and formal resolution options. The Strategy does not specifically outline how perpetrators are dealt with.

For military members and their families, support and advice is available through Defence Member and Family Support, 24 hours a day. Contact the Defence Member and Family Helpline on 1800 624 608 or email memberandfamilyhelpline@defence.gov.au.

Civilian Defence personnel and their families needing support or advice can call the employee assistance provider helpline on 1300 361 008, 24 hours a day.

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In making a parenting order under the Commonwealth Act, the court must consider the need to protect the child from physical or psychological harm and from being subject to or exposed to abuse, neglect or family violence as a primary consideration in determining the child’s best interests.^[702]

“Family violence” is defined broadly under the Commonwealth Act as violent, threatening or other behavior by a person that coerces or controls a member of the person’s family, or causes that family member to be fearful.^[703] Examples provided in the Commonwealth Act include but are not limited to assault; stalking; repeated derogatory taunts; intentionally damaging or destroying property; intentionally causing death or injury to an animal; or unlawfully depriving the family member or any member of the family of their liberty. In 2011, the definition of family violence in the Commonwealth Act was expanded to incorporate notions of coercion and control, such as unreasonably denying financial autonomy that a family member would otherwise have had or unreasonably withholding financial support required to meet the reasonable living expenses of a family member (or their child) who is entirely or predominantly dependent on the person for financial support.

The court must balance the need to protect a child from physical or psychological harm against the benefit to the child of having a meaningful relationship with both parents. However, the court must give lesser weight to the latter consideration.^[704] When considering what order to make, the court must ensure, to the extent that it is possible to do so consistently with the child’s best interests, that the order does not expose a person to an unacceptable risk of family violence.^[705]

Additional considerations in determining the child’s best interests include any inferences that may be drawn from a family violence order (if applicable).^[706] The court must be made aware of any family violence order that applies to the child or a member of the child’s family^[707] and, to the extent possible, ensure that any parenting order is consistent with a family violence order.

There is a rebuttable presumption of equal shared parental responsibility when making a parenting order for children under 18 years old. However, this relates solely to the allocation of parental responsibility and it does not provide a presumption regarding the amount of time the child spends with each parent.^[708] This presumption does not apply where the court is satisfied that equal shared parental responsibility would not be in the best interests of the child or there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.^[709]

Since 31 October 2020, it has been mandatory for any person seeking a parenting order who files an initiating application or response in the family court or federal circuit court to complete a notice of child abuse, family violence or risk form.^[710] The court must take prompt action in relation to any allegations of child abuse or family violence.^[711]

Any views expressed by the child is an additional consideration that the court may consider when assessing the best interests of the child and deciding whether to make a particular parenting order in relation to the child.^[712] The child’s maturity or level of understanding may be relevant to the weight that the court gives the child’s views.^[713] However, children do not have to express their views if they do not wish to.^[714]

Children do not typically attend court and a court would not usually hear a child’s view directly. The views expressed by a child may be made known to the court via a report by a family consultant, through the assessment of an independent children’s lawyer or by any other means that the court deems appropriate.^[715]

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Although each state and territory in Australia has different laws^[716] governing the rights of landlords and tenants, currently, no laws in Australia include provisions to protect tenants from eviction by landlords due to being victims of domestic violence.^[717]

All Australian jurisdictions provide landlords with the power to take steps to terminate tenancies based on a breach of prescribed terms, which include terms such as nuisance, illegal use and excessive noise. Therefore, landlords can evict victims of domestic violence when those victims have breached a prescribed term.^[718]

Additionally, in all jurisdictions apart from Victoria,^[719] landlords can issue tenants, including victims of domestic violence, with termination notices without grounds. In the majority of jurisdictions (excluding Tasmania and Victoria), a no-grounds termination notice may be given when the fixed term of a tenancy comes to an end, and at any time during a tenancy that is without a fixed term or that has continued past a fixed term.^[720] In Tasmania, no-grounds termination notices are limited to where tenancies are coming to the end of a fixed term.^[721]

Each state and territory in Australia has different laws governing whether a tenant can terminate their lease early due to domestic violence. Please see below for a jurisdictional overview.

New South Wales

Yes. If a tenant or their dependent child are in circumstances of domestic violence, they can end their fixed-term or periodic tenancy immediately without being penalized under the Residential Tenancies Act 2010 (New South Wales). To do so, the tenant will need to provide to the landlord a domestic violence termination notice and attach one of the following forms of evidence:

• certificate of conviction for the domestic violence offense
• family law injunction
• provisional, interim or final domestic violence order
• declaration made by a competent person in the prescribed form^[722]

The domestic violence termination notice will also need to be provided to any cotenants.^[723]

Victoria

No. Victims of domestic violence in Victoria do not have the power to terminate their lease early due to domestic violence.

Under the Residential Tenancies Act 1997 (Victoria), for a periodic tenancy, the lease can be ended by giving the rental provider (landlord or agent) 28 days’ notice in writing. For a fixed-term lease, if the landlord does not agree to end the lease early, the victim of domestic violence will need to do one of the following:

• break the lease and pay any fees that apply
• apply to the Victorian Civil and Administrative Tribunal that there is an interim or final intervention order in place that would exclude the perpetrator of domestic violence from the premises^[724]

Queensland

Yes. Changes were made to the Residential Tenancies and Rooming Accommodation Act 2008 (Queensland) as a result of COVID-19, which allows a victim of domestic violence to terminate their lease early by providing the rental provider (landlord or agent) with seven days’ notice and the following:

• a domestic and family violence notice ending tenancy or a domestic and family violence notice ending residency
• appropriate evidence of domestic violence, which includes the following:

• a protection order or temporary protection order
• a police protection order
• an interstate order or injunction for personal protection under the Commonwealth Act
• a domestic and family violence report signed by an authorized professional who is defined as: (i) a doctor; (ii) a social worker; (iii) a refuge or crisis worker; (iv) a domestic and family violence support worker or case manager; (v) an Aboriginal and Torres Strait Islander medical service; or (vi) a solicitor^[725]

These provisions are expected to expire on 30 April 2021.

South Australia

Yes. Victims of domestic violence can apply to the South Australian Civil and Administrative Tribunal to terminate their lease early under the Residential Tenancies Act 1995 (South Australia), and to allow them to leave without being adversely affected financially or otherwise.^[726]

Tasmania

Yes. If a court has made a family violence order under the Family Violence Act 2004 (Tasmania) for a victim of domestic violence, the court can also make an order to terminate a tenancy agreement.^[727]

Northern Territory

Yes. A victim of domestic violence can apply to the Northern Territory Civil and Administrative Tribunal requesting that the lease be terminated due to domestic violence.^[728] Alternatively, where a court domestic violence order has been awarded that includes a premises access order or the victim no longer wishes to live in the premises, the court, in the domestic violence order, may make an order terminating the tenancy agreement.^[729]

Western Australia

Yes. A victim of domestic violence under the Residential Tenancies Act 1987 (Western Australia) can terminate their lease early by giving seven days’ notice to the landlord in the form of a prescribed notice of termination accompanied by evidence that demonstrates that the tenant or a dependent of the tenant is likely to be subjected or exposed to domestic violence. Relevant evidence can include a domestic violence order or a declaration, signed by a medical professional or other independent third party, to confirm that the lease is being terminated because of domestic violence.

Australian Capital Territory

Yes. Victims of domestic violence can apply to the magistrates’ court for a domestic violence order. Once obtaining a domestic violence order, the Residential Tenancies Act 1997 (Australian Capital Territory) allows victims of domestic violence to apply to the Australian Capital Territory Civil and Administrative Tribunal for a no-cause lease termination. This allows a lease to be terminated early or, alternatively, allows an existing lease to be terminated and to enter into a new lease with the landlord.

As above, each state and territory in Australia has different laws governing whether an abuser can be excluded from a residence. Please see below for a jurisdictional overview.

New South Wales

Yes, a victim of domestic violence can apply to a court for an exclusion order as a condition of apprehended domestic violence orders.^[730] An exclusion order allows the victim of domestic violence to remain in their home and “excludes or removes” the abuser from the residence.^[731] An exclusion order can also be awarded as part of a provisional order, which police can apply for following an incident of domestic violence.^[732]

The court will consider the following factors when deciding whether to make an exclusion order:

• The safety and protection of the protected person and any children living at home, if such an order is not made.
• Any hardship that may be caused by making or not making the order, particularly to the protected person and any children.
• The accommodation of needs of all relevant parties, particularly the protected person and any children.
• Any other relevant matter. Remember to report any breaches of the exclusion order to the police.^[733]

Victoria

Yes. A victim of domestic violence can apply to a court for a family violence intervention order, which may include an exclusion condition preventing the abuser from being near the victim of domestic violence and means the abuser cannot reside in the same residence as the victim.^[734] Police can also issue a family violence safety notice, an interim measure, if the victim of domestic violence requires immediate protection.^[735] Police can include as part of an family violence safety notice a condition that the abuser must leave the victim’s residence.^[736]

Queensland

Yes. A victim of domestic violence can apply to a court for a protection order, which can be either temporary or final, and can include an ouster condition that prevents the abuser from residing in the same residence as the victim.^[737] The court will consider the following when deciding to impose an ouster condition:

• whether the aggrieved and any child living with the aggrieved can continue to live safely in the residence if the ouster condition is not made;
• any views or wishes expressed by the aggrieved about imposing an ouster condition on the respondent in relation to the aggrieved’s usual place of residence;
• the desirability of preventing or minimising disruption to the aggrieved and any child living with the aggrieved, including by minimising disruption to their living arrangements and allowing them to continue, or return, to live in the residence;
• the importance of the aggrieved and any child living with the aggrieved being able to maintain social connections and support that may be disrupted or lost if they cannot live in the residence;
• the need to ensure continuity and stability in the care of any child living with the aggrieved;
• the need to allow childcare arrangements, education, training and employment of the aggrieved and any child living with the aggrieved to continue without interruption;
• the particular accommodation needs of the aggrieved and any child who may be affected by the ouster condition;
• the particular accommodation needs of the respondent.^[738]

South Australia

Yes. Tenants who are victims of domestic violence can apply to the South Australian Civil and Administrative Tribunal to have the abuser, if they are a cotenant or a person permitted on the premises by a cotenant, excluded from their residence as part of a restraining order.^[739] The South Australian Civil and Administrative Tribunal will have regard to the following orders and proceedings (if any) as are relevant to the application:

• an order, injunction, undertaking, plan, recognizance or other form of obligation imposed or agreement made under the Commonwealth Act
• an order made under the Children’s Protection Act 1993 (South Australia) or the Children and Young People (Safety) Act 2017 (South Australia)
• an order made under the Intervention Orders (Prevention of Abuse) Act 2009 (South Australia)
• a pending application for an order referred to above
• any other relevant legal proceedings^[740]
• An application for a restraining order can be made without notice being given to the person against whom the order is being sought.^[741]

Tasmania

Yes. Tenants who are victims of domestic violence can apply to the magistrates’ court for a family violence order, and can apply as part of the family violence order to have the original residential tenancy agreement terminated and a new residential tenancy agreement created for the benefit of the victim.^[742] This effectively revokes an abuser’s right to enter the premises and excludes them from the residence.

Northern Territory

Yes. Tenants who are victims of domestic violence can apply to the local court for a domestic violence order, which may include a premises access order that does the following:

• requires the abuser to vacate the premises where the victim and abuser live together or previously lived together
• restrains the abuser from entering the premises described above except on stated conditions^[743]

When making a premises access order, the local court must consider the effect of making the order on the accommodation of the persons affected by the order.^[744] Orders to establish a new tenancy agreement in favor of the victim may also be made.^[745]

Western Australia

Yes. Tenants who are victims of domestic violence can apply to the magistrates’ court for a family violence restraining order, which may impose restraints on the lawful behavior and activities of the abuser. This includes but is not limited to the following:

• being on or near premises where the victim lives or works
• being on or near specified premises or in a specified locality or place^[746]

When making a family violence restraining order, the court must be satisfied of the following:

• that the abuser has committed family violence against the victim and that the abuser is likely to commit family violence against the victim in the future
• that the victim has reasonable grounds to believe that the respondent will commit family violence toward them^[747]

Australian Capital Territory

Yes. Tenants who are victims of domestic violence can apply to the magistrates’ court for a protection order.^[748] In determining the restraining conditions to be included in a family violence order, the court will give paramount consideration to the protection and safety of the victim and any child who is indirectly or directly affected by the abuser’s conduct.^[749]

In deciding whether to include an order prohibiting the abuser from being on the premises where the victim lives,^[750] the court must consider the following primary and secondary factors:

• primary factors:

• the physical, emotional and psychological needs of the victim
• any disability the victim has

• secondary factors:

• the accommodation needs of and options for accommodation available to the victim, the abuser and any child of the victim or abuser
• the length of time required for a person to find alternative accommodation^[751]

The court must also be satisfied that the conditions included in a family violence order are the least restrictive possible of the personal liberties and rights of the abuser, while still achieving the objectives of the act and giving paramount consideration to the protection and safety of the victim.^[752]

Currently, no formal provisions are in place across Australia that empower the court to forbid abusers from alienating or mortgaging the property in their name if it is the family domicile. Relevant domestic violence legislation for each state deals mainly with the treatment of personal property.

New South Wales

No. Currently, no formal provisions are in place that alienate abusers and/or prevent the mortgage of a property in their name if it is the family domicile.^[753]

Victoria

No. No formal provisions confer the court the power to forbid abusers to alienate or mortgage the property in their name if it is the family domicile.

Queensland

No. Currently, no formal provisions are in place under the Domestic and Family Violence Protection Act 2012 (Queensland).

South Australia

No. Currently, no formal provisions are in place under Section 12 of the Intervention Orders (Prevention of Abuse) Act 2009 (South Australia).

However, Section 10(2)(d) of the Intervention Orders (Prevention of Abuse) Act 2009 (South Australia) states the following:

If considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of the property - the income, assets and liabilities of the defendant and the protected person must be considered by the court.

Tasmania

N/A

Northern Territory

No. Currently, no formal provisions are in place under the NT Act.

Western Australia

No. Currently, currently no formal provisions are in place under the Restraining Orders Act 1997 (Western Australia).

Australian Capital Territory

No. Currently, no formal provisions are in place under the Family Violence Act 2016 (Australian Capital Territory).