CTH House of Representatives Considers Bill to Establish Federal Family Violence Orders
On 24 March 2021, the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (Cth) (‘the Bill’) was introduced to the House of Representatives. The Bill is primarily focused on amending the Family Law Act 1975 (Cth) (‘the Family Law Act’) to establish new federal family violence orders (‘FFVOs’). FFVOs will be distinct from personal protection injunctions which are currently available under family law in that FFVOs will be able to be criminally enforced, while personal protection injunctions can only be enforced civilly. In his Second Reading Speech, the Minister for Trade, Tourism and Investment, Mr Daniel Tehan, stated that the Bill is intended to reinforce “the government's recognition of family violence as not a private matter but a criminal matter of public concern.” Additionally, the Bill proposes to amend the Federal Circuit and Family Court of Australia Act 2021 (Cth) in order to clarify the equivalent protection and immunity of Registrars and court judges when conducting conferences.
Who can make a FFVO?
The Bill states that any listed court will have the powers to make, vary, suspend and revoke FFVOs. Under the Bill, a listed court refers to any of the following:
- the Family Court;
- the Federal Circuit Court of Australia;
- the Family Court of Western Australia;
- the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, sitting at any place in Western Australia.
A listed court may make an FFVO on application or of its own motion.
Who can apply for an FFVO?
Under the Bill, a FFVO can be made in two broad circumstances:
- In relation to a child; and
- In relation to a party to a marriage.
The following people may apply for a FFVO in relation to a child:
- a party to a proceeding under Part VII of the Family Law Act that relates to the child can apply for a federal family violence order in relation to a child (e.g. proceedings relating to the issuing of parenting orders, location and recovery orders, and determinations on parental responsibility);
- a party to proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), between the parties to a marriage (to the extent that the proceedings relate to the child); and
- an independent children’s lawyer who represents the interests of the child in proceedings under Part VII.
For a FFVO in relation to a party to a marriage, either party to the marriage may apply for a FFVO in relation to the other party where both parties are involved in proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) of the Family Law Act.
Who is a protected person for the purposes of a FFVO?
Under the Bill, a FFVO is made for the protection of one or more ‘protected persons’.
An FFVO in relation to a child may provide for the personal protection of any one or more of the following persons:
- the child;
- a parent of the child;
- a person with whom the child is to live under a parenting order;
- a person with whom the child is to spend time under a parenting order;
- a person with whom the child is to communicate under a parenting order; and
- a person who has parental responsibility for the child.
Alternatively, a FFVO can provide for the personal protection of a party to a marriage (the ‘protected person’) and must be directed against the other party to the marriage.
What are the grounds for making a FFVO?
Under the Bill, in order to make a FFVO, the court must be satisfied with the following three matters.
Firstly, if the protected person is a child, a court must consider the FFVO appropriate for the welfare of the child before making such an order. Alternatively, if the protected person is a party to a marriage, the court must consider the order appropriate in the circumstances.
Secondly, the court must be satisfied on the balance of probabilities that:
- the protected person has been or there are reasonable grounds to suspect that it is likely that they will be subjected to family violence; or
- in the case of children, the child has been or there are reasonable grounds to suspect that it is likely that they will be subjected or exposed to family violence (emphasis added).
Thirdly, the court cannot make an FFVO if there is already a family violence order in force for the protection of the protected person and directed against the person against whom the FFVO is intended to be directed. A family violence order is distinct from a FFVO in that it is made by a State or Territory court.
What does a FFVO entail?
The Bill provides a listed court with the power to make FFVOs on the terms it considers appropriate in the circumstances. Under the Bill, a FFVO may require a person to comply with conditions which prohibit certain behaviours, restrict their contact with protected persons or limit their ability to go to certain locations or within a certain distance of a protected person.
Other relevant considerations
The Bill also contains a non-exhaustive list of other matters which a court must take into account when making a FFVO and deciding its terms. These considerations include any criminal history of the person against whom the order is directed, whether that person has been charged with any criminal offences and any previous violent conduct of that person towards the protected person. If the protected person is a parent or a person with whom a child is to live, spend time, or communicate under a parenting order, the court must consider the effect of any family violence or risk of family violence on the protected person’s ability to provide care for the child.
Variation, Revocation and Suspension of a FFVO
The Bill will provide a listed court with the power to vary, revoke or suspend a FFVO. Additionally, a State or Territory court in proceedings for a family violence order may revoke or suspend a FFVO. A court will only be able to use such a power if the court considers it appropriate in the circumstances. If the protected person is a child, the court must consider the variation, revocation or suspension appropriate for the welfare of the child. The court must also be satisfied that either of the following apply:
- there is a change in circumstances since the order was made; or
- the court has before it material that was not before the court that made the order
Consequences for Breach
On assent the Bill will provide that a breach of a FFVO will be a criminal offence carrying penalties of up to 2 years imprisonment, 120 penalty units or both. Furthermore, the Explanatory Memorandum mentions that State and Territory police would have authority to enforce these breaches under the National Domestic Violence Order Scheme in which case local penalties would apply.
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Family Law Amendment (Federal Family Violence Orders) Bill 2021 (Cth), Second Reading Speech and other explanatory materials available from TimeBase's LawOne service.