Family Law: New tenancy laws protecting victims of family and domestic violence
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In February 2019, a new Act was passed in WA that provides more options for people experiencing family or domestic violence (FDV) while renting. The Act allows victims of FDV to choose to leave the premises or change locks and other security measures without permission, among other things. The new laws came into force in April 2019.
The Act is called the Residential Tenancies Legislation Amendment (Family Violence) Act 2019. Its primary aim is to better protect victims of FDV in WA.
In 2016-17, there were more than 33,000 reported incidents of FDV in WA and 88 fatalities caused by FDV. Currently, Australia spends about $22 billion on health and social welfare costs linked to FDV yearly and in WA, FDV is responsible for about 40% of all requests for homelessness services.
This article will outline the new options for tenants who are the victim of FDV.
What is FDV?
In WA, ‘family violence’ means violent or threatening behaviour by a person towards a family member. This is behaviour that coerces or controls the family member or causes them to be fearful.
‘Domestic violence’ refers to violence, abuse and intimidation between people who are currently, or have previously been, in an intimate relationship.
FDV can include assault, sexual assault, financial abuse, stalking, repeated derogatory taunts, destroying property and depriving a person of their liberty, as well as other things.
Options for victims under new Act
The new Act allows victims of FDV to do any of the following:
- Leave their tenancy agreement without going to Court with only seven days’ notice. (Note: Victims can leave immediately, but will need to pay rent for the seven-day-period.)
- Apply to Court to have a perpetrator’s name removed from a lease.
- Change the locks without permission.
- Upgrade security measures at the premises without permission.
- Seek removal from, or avoid being listed on, a tenancy database.
- Apply to Court to have the Court assign the cost of damage or unpaid rent to the perpetrator, if the damage or unpaid rent was due to FDV.
Leaving a tenancy agreement with seven days’ notice
Victims of FDV are now able to leave a tenancy agreement with only seven days’ notice. If you wish to do this, all you need to do is provide your lessor or property manager with a:
AND one of the following:
- Domestic Violence Order (or Family Violence Restraining Order)
- Family Court injunction or application for a Family Court Injunction
- Copy of a prosecution notice or an indictment detailing a charge relating to family violence
- Official Consumer Protection ‘Family violence report – Evidence form’. This will need to be signed by either a doctor, psychologist, social worker, police officer or person in charge of a women’s refuge.
As long as you provide the proper Notice of Termination and one of the abovementioned documents, your lessor/property manager cannot challenge your request to leave the tenancy agreement.
However, if you do not provide the proper documentation, or if it is not completed correctly, your request can be appealed. If you need assistance with compiling or filling in the paperwork, you can either ask a trusted friend or family member or contact Lynn & Brown Lawyers for assistance.
All of the documentation that you provide your lessor/property manager in relation to FDV must be kept confidential. To demonstrate the importance of this, lessors/property managers who fail to keep the information confidential face a fine of up to $5,000.
However, they must provide any co-tenants with the Notice of Termination.
Removing a perpetrator from the leased premises
If you wish to remain in the premises, an alternative option is to apply to the Court to have the perpetrator of FDV removed from the tenancy agreement. If you choose to do this, please keep in mind that any co-tenants and the lessor/property manager will be sent a notice of your application.
To make this application to the Court, you will need to complete a Residential Tenancies Form 12.
Another option is to change the locks on the leased premises. If you are experiencing FDV and changing the locks is necessary for you safety, or if a perpetrator’s lease has been terminated, this can be done without the lessor/property manager’s permission.
If you choose to do this, you must provide your lessor/property manager with a copy of the new keys within seven days of having the locks changed. This does not apply if the lessor/property manager is the perpetrator.
If you request that the lessor/property manager refrains from giving a copy of the keys to a specific person(s), they must oblige with your request. This request must be made in writing (an email is considered to be a notice in writing).
Other security measures
You can upgrade security on the leased premises in the same circumstances as described above for changing locks.
You will need to inform your lessor/property manager about your intention to make the upgrades. Further, the upgrades must be completed by a qualified tradesperson and must comply with strata-bylaws.
You will be required to pay for security upgrades to the premises and if the lessor/property manager asks you to restore the premises to its original condition at the end of your agreement, you must do so.
Damage and unpaid rent
If there is damage to the premises or unpaid rent as a result of FDV, you can apply to the Court to have them assign these costs to the perpetrator of FDV. Without a Court Order, all tenants will be jointly liable for such costs.
Getting more information
There is lots of information available designed to assist victims of FDV. We have compiled some lists below.
Information about FDV and the new Act:
- There is a Family Violence website which provides a lot of information and useful contacts.
- Website: https://familyviolencelaw.gov.au/
- Lynn & Brown has also written an article about the website
- Safe Tenancy WA website: https://www.commerce.wa.gov.au/node/8026
Forms mentioned in this article:
- ‘Notice of Termination on the grounds of FDV’
- For residential properties: ‘Notice of Termination on the grounds of FDV’
- For residential parks on-site homes: https://www.commerce.wa.gov.au/publications/notice-termination-tenants-interest-site-home-agreement-grounds-family-violence
- Family violence report – Evidence form: https://www.commerce.wa.gov.au/publications/family-violence-report-evidence-form
- Residential Tenancies Form 12: https://www.magistratescourt.wa.gov.au/_apps/search/results.aspx?query=Residential+Tenancies+Form+12
- If you are in immediate danger: 000
- Women’s Domestic Violence Helpline: 1800 000 599
- Men’s Domestic Violence Helpline: 1800 000 599
- Aboriginal Family Law Service: 1800 469 246
- Family Relationships Advice Line: 1800 050 321
- The Salvation Army: 13 72 58
- Sexual Assault Resource Centre: 1800 199 888
- QLife (for LGBTIQ+): 1800 184 527\
- National Disability Abuse and Neglect Hotline: 1800 880 052
- Suicide Call Back Service: 1300 659 467
- Alcohol and Drug Information Service: 1800 198 024
- Legal Aid WA: 1300 650 579
- Women’s Law Centre WA: 1800 625 122
We understand that the specifics of the Act and the procedures that need to be followed can be daunting and confusing. If you or someone you know would like assistance with any of the matters discussed in this article, or any other FDV-related issues, please do not hesitate to contact Lynn & Brown Lawyers.
If you found this article interesting, you may be interested in more family law news.
About the authors:
This article has been co-authored by Chelsea McNeill and Steven Brown at Lynn & Brown Lawyers. Chelsea is in her fourth year of studying Law at Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.