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    How the Courts Respond to Family Violence

    Nov 14, 2019 10:30:00 PM

    The family law system in Australia is constantly evolving and works to recognise and assist adults and children who have suffered family violence. This year, as many as 70% of all family law matters in the Commonwealth court system involve an allegation of family violence. A particular concern of the Courts is to ensure that children who are exposed to or suffer family violence or abuse are protected as much as possible.

    In fact, one of the primary objectives of Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”) is “to ensure that the best interests of children are met by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence”. The need to protect a child is one of the two primary considerations in determining what is in the best interests of the child and is given greater weight than the other primary consideration, which is for the child to have a meaningful relationship with both parents.

    To define, family violence is violent or threatening behaviour that seeks to coerce or control a family member or cause them to be fearful: Section 4AB of the Family Law Act. Some examples of family violence may include:

    • An assault,
    • Stalking,
    • Repeated derogatory remarks,
    • Intentionally damaging or destroying property,
    • Intentionally injuring or killing a pet, or
    • Withholding financial support from a dependant.

    Abuse, on the other hand, and in particular relating to a child could include:

    • An assault or sexual assault,
    • Serious neglect, or
    • Causing the child to suffer serious psychological harm including from exposing them to family violence: Section 4 of the Family Law Act.

    Exposing the child to family violence might be the child overhearing a death threat from one parent to the other, seeing or hearing an assault being perpetrated against one parent by the other, being present when ambulance or police officers attend an incident involving an assault, or providing assistance to a parent after they have been the victim of an assault.

    There are a number of important mechanisms that have been developed within the family law Court system that are available to judicial officers, legal practitioners or self-represented litigants during the course of a family law matter where there have been allegations of family violence or child abuse:

    1. Exemption from Section 60I Certificate
      Parties who are applying for parenting Orders are typically required to attempt Family Dispute Resolution (“FDR”) and obtain a Section 60I certificate if that FDR is unsuccessful prior to filing. However, in circumstances where there are serious allegations of family violence or there has been abuse or violence towards a child or risk of that occurring, the party is exempt from attempting FDR and providing a Section 60I certificate.
    2. Consistency of Orders
      If there are any state violence Orders, such as an Apprehended Domestic Violence Order (“ADVO”), the Court has an obligation to consider the terms of that order and ensure that, as much as possible and in line with the best interests of the child, the terms of any parenting orders are consistent. The Court cannot expose a person to an unacceptable risk of family violence.
    3. Transfer of file
      If there is or has been a criminal matter involving one or both of the parties, or an ADVO matter, the Court is able to have the criminal or ADVO file transferred to the family law matter. This means that all details of previous incidences and evidence can be used and also avoids as much as possible the re-traumatising of a victim of family violence who may otherwise have been required to provide oral evidence once again.
    4. Subpoenas
      Parties are able to file subpoenas to specialist family violence services or the police for any material relevant to family violence incidences.
    5. Notice of Risk
      If any allegations of family violence or child abuse are made in the Family Court, parties must file a Notice of Child Abuse or Family Violence, which doesn’t just include allegations against a parent, but also anyone else involved in the child’s life. For all parenting matters in the Federal Circuit Court, parties are required to file an equivalent Notice of Risk. If there is a risk alleged, the Court has a mandatory reporting obligation to the relevant state child welfare authorities.
    6. Restraints
      The Court has the power to order injunctive relief in the form of restraints to ensure that children are not brought into contact with people posing to them an unacceptable risk of harm.
    7. Magellan Program
      This is available in the Family Court and is a fast-track program which aims to finalise matters with serious allegations of child abuse within 6 months. Within this scheme, the Court has the power to make interim orders to protect the children immediately, issue relevant subpoenas, appoint an Independent Child’s Lawyer and order a Family Report where appropriate.
    8. Banning of cross-examination
      Personal cross-examination is banned in family law proceedings in certain circumstances where allegations of family violence have been raised. This removes the fear of someone being directly cross-examined by their perpetrator, which may assist a party to recover from an abusive relationship and obtain economic security for themselves and their children sooner.

    The family law system continues to undertake reports and reform their policies, procedures and systems to ensure that families and children are protected as much as possible, although there is still a way to go.

    If you have further questions, please contact Karla Elias at kelias@franklaw.com.au

    This is not legal advice. 

    Photo by Brett Sayles from Pexels

    Karla Elias

    Written by Karla Elias