Family Violence Regulations took effect at the end of December 2022, meaning that if a tenant had been subjected to family violence, they can provide their landlord with at least two days’ written notice accompanied by qualifying evidence to withdraw from their tenancy.
We wrote about these regulations in January 2023; however, this provision is being utilised more than anticipated and it is therefore important that landlords understand how the regulations work and what we must do to comply. It is also important that victims of family violence can remove themselves from a harmful environment with as few barriers as possible, particularly as many instances of family violence involve vulnerable children.
What is family violence?
Family violence is violence inflicted on someone with whom a person is, or has been, in a family relationship and includes all or any of the following:
• physical abuse
• sexual abuse
• psychological abuse.
What is a family relationship?
A person is in a family relationship with:
• a spouse or partner
• a family member
• a member of their household
• a close personal relationship.
A close personal relationship can exist without the people living together and does not have to include sexual relations.
Evidence of family violence
A tenant who is withdrawing from a tenancy following family violence must provide qualifying evidence of family violence, which can be:
• a statutory declaration from the withdrawing tenant
• a copy of the first page of a Protection Order
• a copy of a Police Safety Order
• a copy of a charging document
relating to family violence against the withdrawing tenant or,
• a written statement (such as a letter or email) or statutory declaration from a person specified as able to provide evidence of family violence.
These documents must have been issued or completed during the withdrawing tenant’s current tenancy to be used as evidence. Protection Orders issued earlier than this are also permitted if the withdrawing tenant also provides a written statement that they have been a victim of family violence while in their current tenancy.
If a tenant provides evidence of the family violence, a landlord or property manager must not question whether the family violence occurred.
When there are other tenants
If there are remaining tenants, the tenancy continues. The withdrawing tenant must give notice of the withdrawal to the other tenants, no later than two days after their withdrawal from the tenancy. This does not have to be done in person, and no evidence of family violence or other information needs to be shared. A failure to notify any remaining tenants does not invalidate the withdrawal notice.
The amount of rent for which the remaining tenants are liable for is reduced for 14 days following the withdrawal. This is based on the number of tenants at the property. After 14 days, the rent will return to the normal rent payable, as per the tenancy agreement.
Disclosure
Only the tenant’s landlord or property manager will receive the statement or declaration, which they must keep confidential and can only disclose in very limited circumstances. A landlord may not challenge whether the family violence did or did not take place. If the documents are not completed properly or are not completed by a prescribed person, the landlord can challenge the notice by filing an application in the Tenancy Tribunal.
Disclosing a notice of withdrawal or accompanying qualifying evidence of family violence is an Unlawful Act and can attract penalties payable to the other party of up to $3,000. Therefore, property managers are limited to what information they can disclose to another party, including the landlord.
If a tenant is a victim of family violence, they may not choose to withdraw from a tenancy immediately following an event. Family violence is often a pattern of behaviour that causes cumulative harm, so there may not be an isolated event of violence. What is important to understand, however, is that for a tenant to withdraw using these grounds, family violence only needs to have occurred during the ‘current tenancy’. Therefore, the evidence a withdrawing tenant provides may not be from a recent date. In fact, it may take a tenant time before they are able to leave the tenancy safely following family violence, and landlords and property managers must be respectful of this.
We need to be aware of the variety of relationships that family violence covers, which includes non-de facto relationships, so a tenant could be a victim of a partner who does not live with them and they are still able to use this provision to leave the tenancy. It may also occur between flat mates, same sex couples, or any other close personal relationship as defined under family relationships. Family violence in all its forms is unacceptable.
