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Family Violence Fact Sheet 1: A kit for people who have experienced family violence and need to make changes in their tenancy.
CONTENTS NEW FAMILY VIOLENCE PROVISIONS IN THE RESIDENTIAL TENANCIES ACT .............................................. 2
LANGUAGE ................................................................................................................................................... 2
I WANT TO LEAVE – USING A FAMILY VIOLENCE TERMINATION NOTICE.................................................... 3
WHAT DOES FAMILY VIOLENCE MEAN HERE? ............................................................................................. 3
USING THE FAMILY VIOLENCE TERMINATION NOTICE? .............................................................................. 3
SERVING THE FAMILY VIOLENCE TERMINATION NOTICE ............................................................................ 4
WHAT DOES THIS MEAN FOR CO-TENANTS OR SUBTENANTS? .................................................................. 5
WHEN DOES MY INTEREST IN THE TENANCY END? ..................................................................................... 5
CAN MY LANDLORD DO INSPECTIONS? ....................................................................................................... 5
CAN ANYONE CHALLENGE MY FAMILY VIOLENCE TERMINATION NOTICE? ................................................ 6
AFTER YOU’VE TERMINATED YOUR INTEREST IN THE TENANCY ................................................................. 6
I WANT TO STAY. INFORMATION ABOUT NEW SECURITY PROVISIONS AND APPLYING TO HAVE A PERSON WHO COMMITTED FAMILY VIOLENCE TAKEN OFF THE LEASE ...................................................... 6
CHANGING THE LOCKS ................................................................................................................................. 6
MAKING CHANGES TO INCREASE SECURITY ................................................................................................ 7
INCREASING SECURITY BEFORE THE REGULATIONS COME INTO EFFECT? .................................................. 7
TAKING THE PERSON WHO COMMITTED FAMILY VIOLENCE OFF YOUR LEASE .......................................... 8
WHAT DOES AN ORDER TO TERMINATE A PERSON WHO COMMITTED FAMILY VIOLENCE’S INTEREST IN A TENANCY MEAN? ...................................................................................................................................... 8
HOW TO APPLY FOR AN ORDER TO TAKE THE PERSON WHO COMMITTED FAMILY VIOLENCE OFF YOU LEASE ............................................................................................................................................................ 8
WHAT IF I AM THE VICTIM, BUT THEY ARE CLAIMING TO BE THE VICTIM AND MAKING THESE APPLICATIONS? .......................................................................................................................................... 10
HOLDING PEOPLE WHO COMMIT FAMILY VIOLENCE RESPONSIBLE FOR COST AND DAMAGE ................ 10
APPLYING FOR YOUR BOND BACK ............................................................................................................. 10
APPLYING FOR ORDERS THAT THE TENANT WHO COMMITTED FAMILY VIOLENCE MUST PAY FOR THE COSTS AND LIABILITIES .............................................................................................................................. 10
WHAT ABOUT GOING TO COURT? ............................................................................................................. 12
WHERE CAN I GET HELP? ........................................................................................................................... 12
FURTHER HELP – TENANTS’ ADVICE AND ADVOCACY ............................................................................... 13
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In the Residential Tenancies Act the landlord is referred to as the lessor.
The real estate agent is a representative of the lessor.
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NEW FAMILY VIOLENCE PROVISIONS IN THE RESIDENTIAL TENANCIES ACT
Domestic violence can impact on your tenancy in many ways. There are new domestic violence laws in the Residential Tenancies Act 1987 (WA) which take effect from 15 April 2019.
These new laws help tenants who have experienced domestic violence, and provide options to leave the tenancy easily or to stay more safely in your tenancy.
The new options are:
1) I want to leaveIf you or your dependant is likely to be subjected to family violence during the term of yourtenancy, then you can use a Family Violence Termination Notice, with a supportingdocument confirming the risk of family violence, to terminate your interest in the tenancy.This process is quick (you can terminate your interest in 7 days), free (you do not have topay any compensation to the landlord for leaving early) and generally has no court process.
2) I want to stayIf you want to stay in the tenancy the laws provide you with rights to increase the securityon your home, and also an option to apply to Court to have a person who committed familyviolence taken off the tenancy agreement.
3) People who commit family violence can be held liable for costs and damages in sharedtenanciesThe laws provide new fairer ways to get your bond back, and to apply to get a Court orderto apportion liability to a tenant who has committed family violence, so a victim of familyviolence doesn’t carry the financial burden of family violence.
This fact sheet provides information about your rights and responsibilities. You may want advice about your specific situation, and there are contact details for places to help at the end of this kit.
LANGUAGE
We have used “you”, meaning a tenant who is a victim of family violence. There are several fact sheets in this series on the family violence laws, and we have a specific fact sheet for co-tenants, “My co-tenant has terminated their interest in our tenancy, what can I do now?”, and for people who are alleged to have committed family violence “I’ve been accused of family violence, what does this mean for my tenancy agreement?”
The language in the law is gender neutral. This means any tenant who is a victim of family violence can apply to use these provisions: women, men, trans and gender diverse people are all included.
The Residential Tenancies Act uses the term “lessor” for Landlord. The Real Estate Agent is the representative of the landlord.
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I WANT TO LEAVE – USING A FAMILY VIOLENCE TERMINATION NOTICE
If you are at risk of family violence and need to leave your tenancy you now have the option of a Family Violence Termination Notice (under section 71AB of the Residential Tenancies Act) to terminate your interest in the tenancy.
This is a required form which is available at the government website www.safetenancy.wa.gov.au, and a copy is attached at the back of this kit.
You can use this termination notice if you or your dependant is likely to be subjected to family violence during the tenancy period.
WHAT DOES FAMILY VIOLENCE MEAN HERE?
Family violence is given a broad definition, from the Restraining Orders Act, and includes violence or a threat of violence to a family member, and includes other behaviour that coerces or controls or causes fear for a family member. A family relationship includes married and de facto couples, children, and other relatives, and also includes broader family groups recognised in your culture.
USING THE FAMILY VIOLENCE TERMINATION NOTICE?
The Family Violence Termination Notice requires a supporting document. It is not valid without a supporting document. The supporting document must be one of the following documents which are authorised by the legislation, and the document needs to be applicable during the tenancy agreement:
1. A domestic violence order. This includes a family violence restraining order, an interim familyviolence restraining order, an interstate restraining order, or a police order.
2. A Family Court injunction or an application for a Family Court injunction.3. A copy of a prosecution notice or indictment for a charge relating to violence against the tenant,
or a court record of a conviction for violence against the tenant.4. A report of family violence in the required form (a support letter is not enough). There is a copy
of the report form at the back of this kit and it is also available on the government informationsite www.safetenancy.wa.gov.au. This report should be completed by an authorised person:
o doctoro psychologisto social workero police officero women’s refuge manager
Some additional professionals are likely to be authorised by regulations from October 2019, including child protection workers, family support workers and the managers in charge of Aboriginal health, legal and welfare organisations. However these professionals are not authorised until the regulations come into effect.
The professional needs to be working with you, and sign off that they have assessed the information provided by you, and they have determined that you have been or are likely to be subjected to family violence. The forms don’t include any details of the family violence, and your privacy is protected.
This Family Violence Termination Notice is intended to be used in a broad range of circumstances. You can use it in all of the following cases:
• Where the person who committed family violence is living with you.
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• Where the person who committed family violence has never lived in the house, but is a risk toyou now (for example someone starts stalking you again and you need to move).
• The family violence does not need to have happened in the house, it could have occurredsomewhere else.
You can use a Family Violence Termination Notice to terminate your interest in your tenancy where you or your dependant is likely to be subjected to family violence, and have one of the supporting documents to make the termination notice valid.
SERVING THE FAMILY VIOLENCE TERMINATION NOTICE
You need to give at least 7 days notice of ending (terminating) your interest in the tenancy.
You can leave the house earlier, but the termination notice needs to give 7 days notice before your tenancy interest will end.
You can give more than 7 days notice, for example if you have found a new safe house to move into in 2 weeks’ time, you can give 2 weeks’ notice of termination.
When you fill out the Family Violence Termination Notice you need to write in the termination date.
The minimum 7 days is calculated like this:
Don’t count the day that you are going to give the notice to the landlord, and start counting from the next day. Once you’ve counted 7 days, the 8th day is the earliest date you can put on the termination notice. If the termination date lands on a weekend or public holiday, go to the next working day. If you’re going to post the termination notice to the landlord, make sure you include enough time for the mail, in addition to the 7 days’ notice. You need to leave 3 days for metropolitan post, and longer for post to country areas (see diagram below for guide).
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You can hand the Family Violence Termination Notice and supporting document to your landlord or real estate agent, or you can post it to them, or if they have agreed to electronic communication for notices (check your lease agreement) then you can email it to them. Keep a record of how you served the landlord with the Family Violence Termination Notice by keeping a receipt or taking a photo to record the postage details.
Handing the notice to the landlord or real estate agent is the safest service, posting the notice will take longer, but is also safe as there are deeming provisions that mean that if you can show that you posted the notice, then it is deemed to have been served in the ordinary course of the post. Email is quick, but can be difficult to prove that the landlord received the notice if this is disputed. Ask for the landlord to reply to your email, as their reply is good evidence of service.
WHAT DOES THIS MEAN FOR CO-TENANTS OR SUBTENANTS?
If you have co-tenants, then the landlord has 7 days to serve your termination notice on the co-tenants (but the supporting document is not given to co-tenants, this has to be kept private). Each co-tenant has 7 days from getting the notice to decide what they want to do. The co tenant can choose to stay in the tenancy, or they can choose to give 21 days’ notice to terminate their interest in the tenancy. Once your interest in the tenancy terminates, then the co-tenants will be liable for the full rent at the house.
There is a separate fact sheet for co-tenants about this process – see “My co-tenant has issued a Family Violence Termination Notice – what are my rights?” or “I’ve been accused of family violence – what does this mean for my tenancy?”.
The options are the same for the co-tenants whether they are the person who has perpetrated family violence or any other family members or a housemate.
WHEN DOES MY INTEREST IN THE TENANCY END?
If you have issued a valid Family Violence Termination Notice then your interest in the tenancy will end when you vacate the property and the notice period is up.
If you are the only tenant, then this will terminate the whole tenancy.
CAN MY LANDLORD DO INSPECTIONS?
Yes, there are new provisions to allow the landlord to inspect the property, so that they can be clear about any damage and liabilities.
The landlord can inspect in the 7 days after you have served the Family Violence Termination Notice on them, and they need to give you 3 days’ notice before inspecting. This is an optional inspection for the landlord.
• You may want this inspection to go ahead if you’re worried that the house might be damagedfurther after you leave.
• If you can, it’s good to take photos of the condition of the property when you leave. Of coursethat may not be possible in many cases.
The landlord can also inspect in the 10 days before a hearing at Court for the application to remove a tenant’s name from your lease and determine the liabilities and again the landlord will need to give 3 days’ notice. This is so the landlord can assess any damage and the Court can make orders about who is liable for the costs.
The landlord has an obligation to complete an outgoing property condition report (PCR) within 14 days after your tenancy terminates or your interest in the tenancy terminates. However if the landlord has Fa
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already inspected in the week after you served the Family Violence Termination Notice, then this can count as the PCR and the landlord isn’t required to do another one.
CAN ANYONE CHALLENGE MY FAMILY VIOLENCE TERMINATION NOTICE?
The landlord can challenge the Family Violence Termination Notice, by applying to Court for a review under section 71AC, within 7 days of receiving the notice. The Court can review whether the notice is valid, but cannot review whether you have been or might be subjected to family violence. This means that the Court will check that the Family Violence Termination Notice is on the correct form, that you have given at least 7 days’ notice, and that your supporting document is an authorised document. The Court won’t consider the issue of family violence, as the question of whether you are at risk of family violence is covered by the supporting documentation, and your own declaration on the termination notice. We expect it will be rare that a landlord challenges a Family Violence Termination Notice. Seek advice if your notice is challenged. The Court has indicated that these applications will be fast-tracked so that you can have certainty about whether your interest in the tenancy has terminated.
Only the landlord can challenge a Family Violence Termination Notice. Other tenants can’t challenge the notice in Court.
AFTER YOU’VE TERMINATED YOUR INTEREST IN THE TENANCY
After you have terminated your interest in the tenancy with a Family Violence Termination Notice, you may want to apply to Court to get your bond back (if the parties don’t all agree to the return of your bond) or you may want to apply to Court for orders that the tenant who committed family violence must pay for rent arrears or damage at the property. You can make these applications to Court, and these are discussed in detail below. You can start these applications, or you can respond to an application from the landlord with a counterclaim that the tenant who committed family violence should be held liable. See the section below “Holding people who commit family violence responsible for costs and damage”.
I WANT TO STAY - INFORMATION ABOUT NEW SECURITY PROVISIONS AND APPLYING TO HAVE A PERSON WHO COMMITTED FAMILY VIOLENCE TAKEN OFF THE LEASE
CHANGING THE LOCKS
If you want to stay in your tenancy there are new options to increase the security of your home.
You can change or add locks on the house, without seeking the landlord’s permission, if that would help to prevent family violence against you or your dependants.
If you change or add locks you need to provide a key to the landlord, as soon as possible and at least within 7 days. If the landlord is the person who is a family violence threat to you, then you do not need to give the new keys to the landlord, and we recommend you seek advice as your case is complex.
If the person who committed family violence is a co-tenant, you can provide written instructions to the landlord not to give the new key to them. The landlord is then required by law to not give the keys to them, even if they are still on the lease. Your instructions to the landlord about the keys need to be in writing. This new right to change the locks is in section 45(2) of the Residential Tenancies Act.
In some cases you may want to urgently change locks, and this provision allows this. In other cases it may be beneficial to negotiate with the landlord, as they may be willing to cover all or some of the cost of changing the locks, as this may also reduce the risk of damage to the house.
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If the original locks are sophisticated locks (for example the kind that some community housing providers use) then it is worth negotiating with your landlord for them to change the locks and maintain the quality if this is difficult for you to afford.
If you change the locks and put in lower quality locks, then you may be liable for returning the original locks or similar quality locks at the end of your tenancy. If you are changing the locks you can seek a written agreement from the landlord that they do not require you to put it back when you leave at the end of the tenancy.
You may be able to seek a compensation order making the tenant who committed family violence liable for the cost of changing the locks if you get a Court order to take the tenant who committed family violence off your lease (see the next option). Seek advice about options for orders, and ways to minimise the risk of enforcement proceedings.
The Safe at Home program run through the women’s refuges may be able to assist you with safety planning and help to pay for security upgrades if you cannot afford them.
MAKING CHANGES TO INCREASE SECURITY
There are new powers which will come into effect about October 2019, when the further regulations take effect. These new powers will allow tenants who are at risk of family violence to make prescribed changes at the property to prevent entry onto the premises, to prevent family violence.
The prescribed changes are likely to be:
• Install security alarms and camera• Locks, screens, shutters on windows• Security screen on doors• Exterior lights• Locks on gates• Pruning shrubs and trees to improve visibility
When the regulations take effect, you will be able to make these changes to your rented home without seeking permission from the lessor. You are required to:
• Send the landlord written notice that you are going to make changes• Ensure the work is done by a qualified tradesperson• Ensure the changes are appropriate for the age & character of the home and meet strata by-
laws
If the landlord requires it, you will need to return the premises back to their original condition at the end of your lease. If you want to leave the things in place, we recommend that you negotiate with the landlord beforehand, and get a written agreement that you can leave the items in place and do not have to pay for the cost of making it good at the end. If you are negotiating for the items to stay in place, you can propose that the landlord contributes to the cost of installing the security items, as it will be increasing the value of the landlord’s property, although be aware that the landlord is not obliged to pay.
INCREASING SECURITY BEFORE THE REGULATIONS COME INTO EFFECT?
If you want to make these changes before the regulations come into effect, you can negotiate with your landlord for permission. It may help to explain that you are likely to have the right to make these changes when the regulations come into effect. If you go ahead and make changes without permission before the regulations come into effect there could be consequences:
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• the landlord could breach you, and• could potentially seek an order that you remove the additions, and• you may be liable for the cost of removing them and making good.
You may be able to seek compensation orders that make the tenant who committed family violence liable for these security costs, if you apply to have the tenant who committed family violence taken off your lease. Seek advice about the options for these orders, and see the section below “Holding people who commit family violence responsible for costs and damage”.
TAKING THE PERSON WHO COMMITTED FAMILY VIOLENCE OFF YOUR LEASE
WHAT DOES AN ORDER TO TERMINATE A PERSON WHO COMMITTED FAMILY VIOLENCE’S INTEREST IN A TENANCY MEAN?
You now have the option to apply to Court to have the person who committed family violence taken off the lease.
This means that your tenancy will continue on the same terms, but without the tenant who committed family violence, as their interest in the tenancy will be terminated.
There are some pros and cons when applying to remove a tenant who committed family violence from the tenancy agreement. There are some circumstances where you might need the tenant who committed family violence to remain on the lease and remain responsible for paying rent. Eg: if you have not yet made arrangements to be able to pay the full rent (this could include for example getting in a housemate or family member to help, or getting child support payments).
Applying to have the tenant who committed family violence taken off the lease is a civil process, which changes the contractual agreement between you, the co-tenants and your landlord. The order is not an “ousting order”, it is not enforced by the police like a restraining order is. The legal effect of an order taking a tenant who committed family violence off the lease is that they no longer have any rights as a tenant at your house. So if they come to the house or refuse to leave, they are trespassing. You could call the police to report the trespass. Trespass is a lesser offence than breaching a restraining order, and is likely to be treated less seriously by the police. If the person who has committed family violence against you isn’t willing to just leave and stay away, then you may still need a restraining order to give you protection.
HOW TO APPLY FOR AN ORDER TO TAKE THE PERSON WHO COMMITTED FAMILY VIOLENCE OFF YOUR LEASE
You can apply to Court on a Form 12 application (included at the back of this pack). The Court will send the paperwork to the landlord, and all co-tenants named on the lease. You need to list all of these people as parties on the application.
You will need to show that you have a current family violence order, or if you don’t have a family violence order, you will need to prove to the Court that the person you want taken off the lease has committed family violence during the term of the tenancy.
If you don’t have a family violence order in place, you can prove the family violence by:
• giving your own evidence of what has happened, and
Supporting documents can help:
• taking documents to show a record of charges or convictions or police orders• medical records Fa
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• copies of text messages with threats or abuse• statement from a support worker who knows about your case,
The Court will use the civil standard – the “balance of probabilities”, not the criminal standard of “beyond reasonable doubt” in assessing whether you have proven the family violence. You only need to prove the family violence if you don’t have a family violence order (VRO) in place. If you have a family violence order, then the Court will accept this and there will be no examination of whether there was family violence, or the details of the family violence, (unless the Court needs to consider whether a perpetrator is misusing the laws).
Once the Court has established that you have a family violence order, or you have shown that there was family violence, then the Court will consider the following factors before making a decision about taking the person off your lease:
• The best interests of any children living at your home (this is the primary consideration for theCourt).
• Your best interests (including your ability to meet social housing eligibility criteria without theother tenant).
• The impact on the landlord or other co-tenants.• The impact on pets.• The fact that people who commit family violence might seek to misuse the protections offered
in these new laws, and the need to prevent that from happening.This two-step process means that if you have a restraining order against the tenant who committed family violence then you are very likely to get the order to take them off your lease, if you have applied for the order.
When the Court hears an application to take a person who committed family violence off a lease, the Court will also have to consider making any orders to determine the liabilities. This means you should be prepared to explain what orders you want. You can ask for orders that the tenant who committed family violence is liable for rent arrears or damage to the property, or for other costs in the tenancy. See more about this in the sections below. A person who committed family violence can also apply to Court to have themselves taken off the lease. They would need to admit that they are excluded by a restraining order or admit that they committed family violence. You will be sent the paperwork by the Court, and you will have a chance to respond. If you agree they should come off the lease, then you can consent to their application, and if you want to, you can request the Court to make orders for the tenant who committed family violence to be liable to rent arrears or damage (see more detail below). If you do not want the tenant who committed family violence taken off the lease, for example you need them to continue to pay rent on the property until you can find a new place to move into, then you can oppose their application. If you oppose the application and explain to the Court why it is not good for you, then it is likely that the Court will side with you, as the factors (set out above) are designed to protect the victim of family violence. You can seek advice if you are in this situation.
The order to take a person who has committed family violence off your lease can be made in the Magistrates Court with a residential tenancies application. These orders can also be made in the proceedings where you get a family violence order. This means that you could apply to get this order in your restraining order proceedings (but not at the interim hearing), or in the Family Court if they are making a restraining order or injunction, or potentially in criminal proceedings where a restraining order is made for your protection. In practice we expect that most applications will need to start with a residential tenancies application to the Magistrates Court, and it will usually be listed in the residential tenancies list, or could be listed for the same date as your restraining order hearing, before the restraining order magistrate. You can seek advice if you are working with several legal processes at
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once, and you can ask your restraining order lawyer, family lawyer and tenant advocate to work together. Tenancy WA provides a community worker hotline to provide tenancy advice to other workers.
WHAT IF I AM THE VICTIM, BUT THEY ARE CLAIMING TO BE THE VICTIM AND MAKING THESE APPLICATIONS?
The changes to the law anticipate that sometimes a person who committed family violence may intentionally misuse provisions to further their violence. This is one of the factors that the Court is required to consider, so you can raise this as an issue for the Court. If this is happening to you, seek advice about the best way to manage your situation.
HOLDING PEOPLE WHO COMMIT FAMILY VIOLENCE RESPONSIBLE FOR COST AND DAMAGE
APPLYING FOR YOUR BOND BACK
If you have terminated your interest in a tenancy, but the tenancy is continuing with other co-tenants, you can now apply to the Court to have your share of the bond back. The family violence provisions create a new starting point, that each co-tenant is entitled to an equal share of the bond. However, you can make an argument to the Court about why this should be different and you should get more or are agreeing to get less.
If you can reach agreement with the landlord and all co-tenants named on the lease about how much bond you can get back, then you don’t need to go to Court, you can apply to get your bond back from the Bond Administrator.
All parties (you, landlord and any co-tenants) will need to sign the “Joint application for disposal of security bond” and you can apply to just get your share returned. Then you should complete the “Variation of security bond” form to take your name off the bond record.
If you have an order to terminate the tenant who committed family violence’s interest in the tenancy, they can apply to have their share of the bond back. You can consent to this, or you could make arguments about this, for example if the bond should go to arrears or damage at the property. If their share of the bond is paid out and you are staying at the tenancy, then there is a process for you to top up the bond.
To top up the bond you can complete the “Variation of Security Bond” form and just include the top up amount (keep the rent rate the same), and add any new co-tenants (named on your lease, not subletting from you) that should go on the bond.
APPLYING FOR ORDERS THAT THE TENANT WHO COMMITTED FAMILY VIOLENCE MUST PAY FOR THE COSTS AND LIABILITIES
The new family violence laws give the Court the power to make orders to determine the rights and liabilities of the parties to the agreement, and make compensation orders relating to the termination. The new powers mean that you can seek orders for the following:
• That all rent arrears or damage arising from family violence should be paid by the tenant who committed family violence.
• That a proportion of the rent arrears should be paid by the tenant who committed family violence.
• That the cost of changing the locks or increasing security is paid by the tenant who committed family violence. Fam
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• That you are not liable for the cost of repairs for damage. In this case the cost of repairs fordamage are carried by the lessor, where the damage was caused by a family violenceperpetrator who isn’t on the lease. This means the repairs costs are treated just like if there wasanother crime like a burglary, where the landlord covers the cost of the repairs, and can claim itfrom insurance if they are covered. The insurance company can then pursue the person who didthe damage.
• other orders determining liabilities and rights or providing compensation relating to thetermination – these are new provisions and it will take some time for the Courts to consider theimplementation.
This does not include compensation to the landlord for early termination of the tenancy (no break lease compensation), and it doesn’t include compensation for personal injuries.
The Court will consider the following factors when dealing with these applications:
a) that family violence is a fundamental violation of human rights and is unacceptable in any form;b) the need to prevent further victimisation of a person who has experienced family violence
through the unjust application of the principle of joint and several liability or the principle ofvicarious liability1;
c) the need to maximise the safety of persons who have experienced family violence by reducingany financial burden arising from the family violence;
d) the need to prevent, or reduce to the greatest extent possible, the consequences of familyviolence;
e) the need to protect the wellbeing of children by preventing them from being subjected orexposed to family violence;
f) the need to encourage perpetrators of family violence to accept responsibility for theirbehaviour and the effect it has on others.
These new powers override the provisions of your lease that says you and your co-tenants are jointly or jointly and severally liable. The Court can make orders saying who is individually liable for what costs.
The Court can only make a determination about who is liable for costs in a family violence case where someone’s interest in the tenancy has been terminated under these new family violence provisions. This means it’s an option where you have terminated your interest or where you have got orders taking the person who committed family violence off the tenancy. If you just reach an agreement with your landlord and the co-tenants to leave, then you won’t be able to apply to court later for an order making the person who committed family violence pay for the costs. We recommend that you formalise any agreement for you to leave by sending the Family Violence Termination Notice, if you want to keep open the option to use the Court process to determine liability.
If you have terminated your own interest in your tenancy using the Family Violence Termination order then you can apply to Court later for orders about the liabilities. If the landlord applies to court for the rent arrears and damage at your old house, and you’re included in the claim as some of the issues came from before you terminated your interest, then you can file a counterclaim to have the Court make orders that the tenant who committed family violence is liable for all or some of these costs. So you can choose whether you want to apply to Court for the orders (eg if you need Court orders to get your share of the bond back) or you can use this like a defence if you get a claim from the landlord. We have included some example orders in the application forms at the back of this kit. You can seek advice from
1 These are contract law principles that sometimes meant victims of family violence were held liable for the cost of family violence committed against them. The new laws seek to stop this from happening. “Vicarious liability” is the rule that if a tenant allows someone to come onto the property, then the tenant is liable for any damage that other person does. Joint or “joint and several” liability are rules that hold co-tenants both responsible for all of the costs and damage, even if only one of the tenants did the damage. Fa
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a tenant advocate or lawyer about how to apply. Many Courts will have a Duty Advocate who may be able to assist you at your first court date. Contact your local tenant advocate to check if they provide a duty advocate service at Court, as some regional courts do not have a duty advocate service.
WHAT ABOUT GOING TO COURT?
You can see more details in our 4 fact sheets about Going to Court for a rental dispute, available at www.tenancywa.org.au/fact-sheets
The first Court date will be a pre-trial conference, where the Registrar will see if the parties can reach an agreement, and make orders by consent. This will be a good opportunity to settle the matter. The Court has the power to proceed in the absence of a party, so if you have applied for orders, and the landlord or real estate agent is there, but the tenant who committed family violence is not, then you can still go ahead and get orders (as long as the Court records show that everyone was notified of the Court date).
If you don’t go to Court when you have made an application, it might get dismissed. Seek advice if this happens as you may have options to set aside the decision or apply again.
WHERE CAN I GET HELP?
Tenancy Advice
Tenancy WA – You can book an appointment online on our website or call our advice line on 9221 0088 or country freecall 1800 621 888. Find your local tenant advocate here: http://www.tenancywa.org.au/find-a-tenant-advocate
Tenancy WA and Tenant Advocates will assist all tenants, both victims and people who have committed or been accused of family violence. If one party has sought advice from a Centre, that Centre can refer the other party to another service for advice.
More Information
Family violence can result in lots of legal issues. You may want advice about restraining orders, family law for children’s arrangements and for property settlement, advice about child support, support as a victim of crime through the criminal law process, assistance applying for criminal injuries compensation and possibly advice about child protection law too.
This national website provides information about legal issues in family violence https://familyviolencelaw.gov.au/
If you are experiencing family violence and need help with all of your options, including crisis accommodation, counselling, financial help and other support, the best starting point is:
National family violence support telephone service 1800 RESPECT (1800 737 732)
Crisis Care – for access to refuge services and other supports - Telephone (08) 9223 1111
1800 199 008 (country free call). This service is run by the Department for Communities, Child Protection. This is a 24 hours service 7 days a week.
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Restraining Orders and family law
If you need advice about a restraining order and about family law you can contact:
Legal Aid Domestic Violence Legal Unit - Legal Aid WA - Telephone 1300 650 579
Your local Community legal centre
Women’s refuges have support workers to assist with restraining orders as well as safety planning.
There is a DV duty lawyer at most Magistrates Court to assist with restraining orders, and there is a duty lawyer service at the Family Court to assist with urgent applications.
There are some specialist hubs which provide wrap around support and legal assistance:
Safe as Houses – wrap around legal and support service - based in Perth https://www.safeashouses.tenancywa.org.au/
Wren (Women’s Resources Engagement Network) wrap around family violence legal and support service in the Northern suburbs - https://nsclegal.org.au/legal-services/wren/
DV Legal Hub at SCALES in Rockingham - http://www.murdoch.edu.au/School-of-Law/Southern-Communities-Advocacy-Legal-and-Education-Service-Inc./
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FURTHER HELP – TENANTS’ ADVICE AND ADVOCACY
Tenancy WA provides free, state wide telephone advice services and referrals. Metro: (08) 9221 0088 • Country: 1800 621 888 (free call) • www.tenancywa.org.au
Department of Mines, Industry Regulation and Safety 1300 304 054
METROPOLITAN COMMUNITY LEGAL CENTRES
Fremantle CLC (Western Suburbs) 9432 9790 www.fremantle.wa.gov.au Gosnells CLC (South Eastern Suburbs) 9398 1455 www.gosclc.com.au MIDLAS (Eastern Suburbs) 9250 2123 www.midlas.org.au Northern Suburbs CLC (Northern Suburbs) www.nsclc.org.au Mirrabooka – 9440 1663 Joondalup - 9301 4413 SCALES (South Western Suburbs) 9550 0400 www.law.murdoch.edu.au/scales Sussex Street CLS (South Central Suburbs) 6253 9500 www.sscls.asn.au Welfare Rights & Advocacy Service (North Central Suburbs) 9328 1751 www.wraswa.org.au
REGIONAL COMMUNITY LEGAL CENTRES
Albany CLC (Great Southern) 9842 8566 www.albanyclc.com.au AccordWest (South West) 9729 9000 www.accordwest.com.au Regional Alliance West (formerly GRC) (Mid-West/Gascoyne) https://raw.org.au/ Geraldton – 9938 0600 Carnarvon – 9941 1062 Goldfields CLC (Goldfields) 9021 1888 www.gclc.com.au Kimberley CLS (Kimberley) 9169 3100 Peel CLS (Peel) 9581 4511 www.peelcls.com.au Pilbara CLC (Pilbara) Karratha - 9185 5899 Newman - 9175 0148 Roebourne - 9182 1169 South Hedland - 9140 1613 www.pcls.net.au Wheatbelt CLC (Wheatbelt) 9622 5200 www.wheatbeltclc.com.au
Disclaimer: This fact sheet is intended as general information only and should not be relied on as a substitute for legal advice. You may wish to seek advice from a tenant advocate or lawyer about your particular circumstances. Tenancy WA does not accept responsibility for any consequences, including damage or loss, arising from your use of, or reliance on, the information contained in this publication. Tenancy WA does not accept responsibility for the accuracy of any information obtained from third party website links. © Tenancy WA
Family Violence Fact Sheet 1 Version 1 published April 2019
Notice of Termination of Tenant’s Interest in Residential Tenancy Agreement
on Grounds of Family Violence Residential Tenancies Act 1987 s. 67(2), 71AB(1)
Residential Tenancies Regulations 1989 r. 18
Part A
Lessor Family name:
Other names:
Tenant Family name:
Other names:
Residential premises Address:
Postcode:
Notice I, the tenant, give notice of the termination of my interest in the
residential tenancy agreement on the grounds that I am, or my
dependant is, likely to be subjected or exposed to family violence.
The last day of my tenancy will be (a day that is not less
than 7 days after the giving of this notice). I will move out of the
residential premises on or before this day.
Accompanying document(s)
I attach 1 or more of the
following: a DVO
a Family Court injunction or an application for a Family Court
injunction
a copy of a prosecution notice or indictment containing a charge
relating to violence against the tenant or a court record of a
conviction of the charge
a report of family violence under the Residential Tenancies Act
1987 s. 71AB(2)(d).
Signature Tenant:
Date:
Further information See Part B of this form and also refer to the Residential Tenancies Act
1987 or contact the Department of Mines, Industry, Regulation and Safety
— Consumer Protection Division on 1300 304 054 or at
www.safetenancy.wa.gov.au.
For Translating and Interpreting Services please telephone TIS on 13 14 50
and ask to speak to the Department of Mines, Industry Regulation and
Safety (1300 30 40 54) for assistance.
Part B
Important information about this notice
The types of tenancy agreements to which this notice applies
This notice applies to all tenancy agreements under the Residential Tenancies Act 1987.
Period of notice by tenant
A tenant can give the lessor this notice if the tenant, or a dependant of the tenant, is likely to be exposed
or subjected to family violence during the term of the residential tenancy agreement. The period of the
notice must not be less than 7 days before termination day.
Co-tenants
A lessor must give a copy of this notice (but not an accompanying document) to any co-tenants named on
the residential tenancy agreement within 7 days after receiving this notice.
A co-tenant may, within 7 days after receiving a copy of this notice, give the lessor notice of termination of
the co-tenant’s interest in the residential tenancy agreement. This period of notice must not be less than
21 days before the termination day.
Notice by co-tenant to terminate their interest in the residential tenancy agreement
A co-tenant does not need to use a specific form to notify the lessor that they wish to terminate their
interest in the residential tenancy agreement. They simply need to notify the lessor in writing.
Co-tenant remaining in residential premises
Any co-tenants who wish to remain in the residential premises are entitled to do so and the existing tenancy agreement will continue to apply to them.
Documents must be kept confidential
A lessor must not disclose information contained in this notice or an accompanying document to another
person except as allowed by the Residential Tenancies Act 1987 or another written law. A penalty of a fine
of up to $5,000 applies for failure to comply with this requirement.
A lessor must ensure that information given to them in this notice and an accompanying document is kept
in a secure manner so far as it is reasonably practicable to do so. A penalty of a fine of up to $5,000 applies for failure to comply with this requirement.
Family Violence Report - Evidence FormSection 71AB(2)(d) Residential Tenancies Act 1987 and section 45A(2)(d) Residential Parks (Long-stay Tenants) Act
2006
This form will be provided to the lessor as evidence accompanying a notice of termination of the tenant’s interest in the tenancy agreement. Section 1 – Tenant Information
Given Name(s) Surname (Family Name)
Address of the rental premises Suburb Postcode
Telephone Number Email Address
Section 2 – Tenant Declaration
I declare the information about family and domestic violence I have provided to the authorised
professional listed below is true and accurate to the best of my knowledge and was provided in good
faith.
I understand that it is an offence to make a fraudulent declaration, and that I may be liable for a
penalty if found guilty of this offence.
Name Date Signature
Section 3 – Authorised Professional Information - (please see overleaf to * Who can complete this form.)
Name of Authorised Professional
Occupation / Position
Business Address
Suburb
Postcode
Agency Name or Stamp (if applicable)
Section 4 - Certified Professional Declaration
By signing below, I declare I am authorised to complete this form (see reverse of form).
I declare I have assessed the information provided by the tenant and have determined that he/she,
or their dependant(s), has been or is likely to be subjected or exposed to family violence during the
tenancy period.
Name Date Signature
An authorised professional should sign the above declaration only after assessing the tenant and the
tenant’s circumstances, and should make the determination based upon the accepted standards of
their profession and relevant knowledge and professional judgement.
Guidance notes for completing this form PURPOSE This form will be provided to the lessor as evidence accompanying a termination notice of the tenant’s interest in the tenancy agreement.
It is to be completed by prescribed persons under section 71AB(2)(d) of the Residential Tenancies Act 1987 or section 45A(2)(d) of the Residential Parks (Long-stay Tenants) Act 2006 for tenants who wish to terminate their interest in a residential tenancy agreement on the grounds that they, or their dependant(s), have been or are likely to be subjected or exposed to family violence during the tenancy period.
* WHO CAN COMPLETE THIS FORMThe following authorised persons who have worked with the tenant can complete this form: • A person registered under the Health Practitioner
Regulation National Law (Western Australia) Act 2010in the medical profession;
• A person registered under the Health PractitionerRegulation National Law (Western Australia) Act 2010in the psychology profession;
• A social worker as defined in the Mental Health Act2014;
• A police officer;• A person in charge of a women’s refuge; or• A prescribed person or class of persons (refer to
safetenancy.wa.gov.au for more information).
MEANING OF FAMILY VIOLENCE Family violence means a reference to – (a) violence or a threat of violence, by a person towards
a family member of the person; or (b) any other behaviour by the person that coerces or
controls the family member or causes the member to be fearful.
Examples of behaviour that may constitute family violence include (but are not limited to) the following – (a) an assault against the family member; (b) a sexual assault or other sexually abusive behaviour
against the family member; (c) stalking or cyber-stalking the family member; (d) repeated derogatory remarks against the family
member; (e) damaging or destroying property of the family
member; (f) causing death or injury to an animal that is the
property of the family member; (g) unreasonably denying the family member the
financial autonomy that the member would otherwise have had;
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;
(i) preventing the family member from making or keeping connections with the member’s family, friends or culture;
(j) kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
(k) distributing or publishing, or threatening to distribute or publish, intimate personal images of the family member; or
(l) causing any family member who is a child to be exposed to behaviour referred to in this section.
WHO IS A PERPETRATOR OF FAMILY VIOLENCE Family violence can be committed by anyone who is in a family relationship with the tenant or their dependent. A family relationship means: • Spouses or partners, or former spouses or partners of
the tenant or their dependent;• People who are or were related to the tenant or the
tenant’s dependent, taking into consideration thecultural, social or religious backgrounds of thepersons;
• People who are related to the tenant or theirdependent’s spouse/former spouse orpartner/former partner.
• Persons who are in, or have had, an intimate or otherpersonal relationship with the tenant or theirdependent;
• A tenant or their dependent and a child, where thechild ordinarily or regularly resides with or residedwith the tenant or their dependent, or where thetenant or their dependent is the guardian of thechild;
• Personal relationship of a domestic nature betweenthe tenant or their dependent and another person, inwhich the lives of the persons are, or were,interrelated and the actions of one person affects, oraffected, the other person.
The perpetrator of the family violence does not have to reside at the premises with the tenant in order for family violence to have occurred.
DOCUMENTS MUST BE KEPT CONFIDENTIAL – Attention Landlords (Lessors) A lessor must not disclose information contained in this document to another person except in accordance with the Residential Tenancies Act 1987 or the Residential Parks (Long-stay Tenants) Act 2006 or another written law. A penalty of a fine of up to $5,000 applies for failure to comply with this obligation. A lessor must ensure information given to them in this document is kept in a secure manner so far as it is reasonably practicable to do so. A penalty of up to $5,000 applies for failure to comply with this obligation.
