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Domestic Violence and the Law - Update

There are considerable new legal developments around domestic violence to report this month.

Legal Aid Cross Examination Scheme

In March, the Family Law Act was amended to include s102NA. Victims have been and are being re-traumatised in the court system by self-represented perpetrators currently allowed to cross examine the victim in the court proceedings. This section 102NA provides for mandatory protections for alleged victims from alleged perpetrators and will ban direct cross examination certain circumstances. The Act will protect victims of family violence by requiring that cross examination must be conducted by a legal representative, either a privately retained lawyer or one funded through Legal Aid.

The changes apply to matters listed for final hearing after 10 September 2019.

Tenancy and Domestic Violence Law Reform

There are many societal issues caused by the proliferation of domestic violence in our society poverty and homelessness are just two. Many women and children find themselves homeless after fleeing for their safety or as subjects of the relentless attack and manipulations of narcissistic partners.

I’ve personally had women who while they are from extremely wealthy backgrounds, for many reasons are unable to access housing and effectively become either prisoners in their own beautiful home or forced into homelessness at the hands of domestically violent and manipulative partners exercising control over finances. Or they they have had no other option but to flee and if they don’t have understanding family or close friends to go they may be fortunate enough to find space in a refuge they are left homeless.

Up until 28 February 2019, victims of domestic violence were not able to immediately end their tenancy, there was a requirement to provide 14 days notice and a copy of a Final Apprehended Violence Order (which can take many months to obtain).

These laws have recently been changed in order to allow victims to end a lease immediately and will not be liable to pay any fees associated with early termination. The new laws also ensure that victims are not at a disadvantage when seeking a new tenancy.

Requirements for ending the tenancy

Victims of domestic violence can now end their tenancy immediately, there is no 14 day notice requirement and a final apprehended violence order is not the only evidence of domestic violence that can be provided.

Ending the tenancy is done by way of a Domestic Violence Termination Notice and this Notice must be accompanied by one of the following forms of evidence and provided to the landlord or landlord’s agent:

  • Provisional, interim or final Domestic Violence Order (DVO);

  • Certificate of Conviction of the Domestic Violence Offender;

  • An in-force family law injunction regarding family violence;

  • A declaration by a medical practitioner that the person and/or any dependent child are victims of domestic violence.

The Notice, not including the supporting evidence, must be provided to the landlord or landlord’s agent and any co-tenant of the property. This includes the perpetrator of the domestic violence.

Privacy and ensuring there is no disadvantage in securing future tenancy

Victim’s privacy needs to be protected and victims are also protected from discrimination should they want to secure a rental property in the future following the termination for domestic violence reasons. The information that is provided to the landlord or landlord’s agent is prohibited from being entered into any database, co-tenants need only be provided with the Notice and not the supporting evidence and the information provided in the Notice and evidence cannot be used for any other purpose.

Landlords disputing validity of Notice

Landlords may dispute the validity of a Notice through the NSW Civil and Administrative Tribunal. However, NCAT can only examine whether the Notice was provided correctly under the new tenancy laws and a medical declaration of domestic violence cannot be contested.

New Zealand Introduce Paid Domestic Violence Leave

New Zealand is leading the way in addressing the societal issues caused by domestic violence. Earlier this week a private members bill was passed. Often Domestic Violence finds its way in to the workplace and women many times will lose their jobs because of the effects or domestic violence or the impact their partner has on their workplace.

“Domestic violence doesn’t respect that split between work and life. A huge amount of research tells us a large number of abusive partners bring the violence into the workplace, ... Be that by stalking their partner, by constant emails or phone calls or threatening them or their workmates. And some of that is about trying to break their attachment to their job to get them fired or get them to quit so they are more dependent on their partner. It is very common.”

The New Zealand legislation comes into effect in April next year and provides or 10 days paid leave on top of sick leave and holidays. Victim will not have to prove their circumstances and they will then be fast tracked to flexible working conditions designed to ensure their safety.

Other countries that have introduced paid domestic violence leave include the Philippines and Canada.

Australia introduced 5 days unpaid leave earlier this year.

If you or any one you know is subject to domestic violence, please seek help. You can call 1800RESPECT visit the national hotline, or if in immediate danger call emergency 000.

If you need legal representation in a Family Law matter, you can contact Voice Lawyers for a confidential discussion on (02) 92611954

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