1.1
On 13 May 2021, on the recommendation of the Selection of Bills Committee, the Senate referred the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 29 July 2021.
1.2
An appendix to the Selection of Bills Committee report stated that the reasons for referral included ensuring that the bill is 'fit for purpose' and to allow stakeholders to comment on the bill.
Conduct of the inquiry
1.3
In accordance with usual practice, the inquiry was advertised on the committee's webpage. The committee called for submissions by 18 June 2021 and wrote to a range of stakeholders inviting them to submit.
1.4
The committee received 35 submissions, listed at Appendix 1.
1.5
The committee held one public hearing in Canberra on 14 July 2021. Details of those who appeared at the public hearing are outlined in Appendix 2.
Acknowledgement
1.6
The committee thanks submitters and witnesses for their contributions to this inquiry.
Note on references
1.7
References to the Committee Hansard in this report are to the proof transcript. Page numbers may vary between proof and official transcripts.
Structure of this report
1.8
This report comprises two chapters:
Chapter 1 summarises the conduct of the inquiry and outlines the key provisions of the bill.
Chapter 2 considers key issues discussed in evidence to the inquiry and concludes with the committee's view.
Purpose of the bill
1.9
The bill would amend the Family Law Act 1975 (the Family Law Act) to establish new federal family violence orders which, if breached, could be criminally enforced. According to the explanatory memorandum (EM), 'federal family violence orders would offer stronger protection for victims of family violence than existing family law personal protection injunctions which can only be enforced civilly'.
1.10
The bill would also extend the protection and immunity currently afforded to a judge of a Family Court to a registrar of a Family Court when conducting a conference relating to a matter relevant to a proceeding. The EM states that the amendment would broaden the protections for registrars in two ways:
Firstly, the protection would not be limited to conferences relating to property settlement proceedings. This protection would be extended to Registrars conducting any conference relating to a matter relevant to a [proceeding], for example parenting matters. Secondly, the amendment would explicitly ensure Registrars are protected in conducting conferences that may involve people who are not parties to the proceedings. Family law proceedings may sometimes benefit form the inclusion of support persons (such as grandparents) who are not parties to the proceedings.
Key provisions of the bill
1.11
Item 13 of Schedule 1 of the bill would insert new Division 9A into the Family Law Act and establish a regime for a listed court to issue a 'federal family violence order' applicable to a child. Item 36 of Schedule 1 would insert new Division 2 of Part XIV dealing with federal family violence orders in relation to parties to a marriage.
1.12
The bill would empower a 'listed court' to make a federal family violence order where it is satisfied that a person has been or there are reasonable grounds to suspect that it is likely that a person will be subjected to family violence. In relation to a child, the court would have to be satisfied that the child has been or there are reasonable grounds to suspect that it is likely that the child will be subjected or exposed to family violence.
1.13
For the purpose of a federal family violence order relating to a child (including a child of a de facto relationship), an order 'may provide for the personal protection of any one or more' protected persons. A 'protected person' to whom an order applies is defined as:
(b)
a parent of the child;
(c)
a person with whom the child is to live under a parenting order;
(d)
a person with whom the child is to spend time under a parenting order;
(e)
a person with whom the child is to communicate under a parenting order;
(f)
a person who has parental responsibility for the child.
1.14
Subsection 68AC(4) of Division 9A outlines the circumstances in which a person would cease to be a 'protected person'.
1.15
Subsection 68AC(6) sets out matters about which the court would have to be satisfied before making an order, including that the order is appropriate for the welfare of the child.
1.16
The permitted terms of an order are articulated in subsection 68AC(8) and would empower a court to:
prohibit a person from subjecting a protected person to family violence, or if the protected person is a child, subjecting or exposing the child to family violence;
prohibit a person from making contact with a protected person;
prohibit a person from being within a specific distance of a protected person;
prohibit a person from attempting to locate a protected person;
any other term the court considers reasonably necessary to ensure the personal protection of a protected person.
1.17
Section 68AD would require a court to give reasons for its decisions and to explain to each of the parties when an order comes into force and the period for which it would be in force. Subsection 68AD(6) would prohibit a court from furnishing a child with a copy of an order or an explanation of an order unless the court is satisfied that it is in the child's best interests to have the order made available or explained.
1.18
Section 68AG outlines the offence for breaching a federal family violence order relating to a child: imprisonment for two years, 120 penalty units, or both.
1.19
Sections 68AH through 68AL would provide a process for varying, revoking or suspending a federal family violence order relating to a child.
1.20
For the purpose of a federal family violence order relating to a party to a marriage, a court would be empowered under section 113AC to make an order for the personal protection of a party to the marriage (a 'protected person') against the other party to the marriage. However, this section would not allow a court to issue a federal family violence order for the protection of a party to a de facto relationship. The bill:
does not seek to expand the categories of persons for whose protection federal family violence orders can be issued, beyond the categories of persons for whose protection the court can currently issue personal protection injunctions. It is intended that persons in de facto relationships, who do not fit within the categories of persons for whose protection a federal family violence order under new subsection 68AC(3) can be made, but who are in need of a court order protecting them from family violence, would seek a family violence order in a State or Territory court.
1.21
In making a federal family violence order relating to a party to a marriage, the court would have to be satisfied that the order is appropriate in the circumstances and 'on the balance of probabilities' that the protected person has been subjected to family violence or there are reasonable grounds to suspect that the protected person is likely to be subjected to family violence.
1.22
Subsection 113AC(6) sets out the terms of an order. Section 113AD would require the court to give reasons for its decisions and to explain to both parties when an order comes into force and the period for which it would be in force.
1.23
Section 113AG would introduce the offence for breaching a federal family violence order in relation to a party to a marriage: imprisonment for two years, 120 penalty units, or both.
1.24
Subsections 113AH through 113AL would permit a federal family violence order relating to a party to a marriage to be varied, revoked or suspended.
1.25
Schedule 4 would amend the Federal Circuit and Family Court of Australia Act 2021 to extend the protections for registrars in the Federal Circuit and Family Court (FCFC) beyond conferences relating to property settlement proceedings and to people who are not parties to the proceedings (see paragraph 1.10). The schedule would similarly amend the Family Law Act to extend the protections for registrars of a Family Court of a state.
Family Law Amendment (Family Violence and Other Measures) Bill 2017
1.26
In 2017, the Family Law Amendment (Family Violence and Other Measures) Bill 2017 (the 2017 bill) was introduced to the Parliament. The 2017 bill was intended to:
enhance the capacity of the family law system to provide effective outcomes for people who are experiencing family violence. In particular, it aims to reduce the need for families to interact with multiple courts across the federal family law and state or territory family violence and child protection systems similarly proposed to introduce a criminal offence for breaching an injunction.
1.27
Amongst other amendments, and similar to the bill, the 2017 bill sought to introduce a criminal offence for breaching a family law personal protection injunction.
1.28
Ultimately, the provisions of the 2017 bill that sought to criminalise breaches of family law personal protection injunctions were removed from that bill prior to its enactment, 'to allow the government to do further work with regard to the enforcement of the orders'.
Consideration by other parliamentary committees
1.29
The bill was considered by both the Senate Scrutiny of Bills Committee (scrutiny committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).
1.30
The scrutiny committee had no comment in relation to the bill.
1.31
The PJCHR raised some concerns about the bill and sought the Attorney-General's advice about a range of matters. In her response to the PJCHR, the Attorney-General stated:
To the extent that terms included by the court in a FFVO have the potential to limit the rights to freedom of movement and respect for private life of the person against whom the FFVO is directed, a collection of safeguards contained within the bill ensures means that any such limitation is proportionate to achieving the objective of better protecting victims of family violence and addressing the impacts of gender-based violence on women.
1.32
The Attorney-General identified five such safeguards, including the:
requirement for the court to give reasons for its decision;
requirement for the order to contain certain information; and
power of the court to vary, revoke or suspend an order in certain circumstances.
1.33
The PJCHR concluded that in light of this advice, 'any limitation on rights would likely be proportionate to the important objective being sought' and that 'the measure would likely be a permissible limitation on the rights of the person against whom the order is directed'.
1.34
With regard to the rights of the child and enabling courts to use their powers to resolve inconsistencies between orders, the PJCHR stated that 'questions remain as to whether this specific measure is necessary and addresses a pressing or substantial concern'. The PJCHR was unable to conclude that the measure is rationally connected to the stated objective, and noted that the safeguards in the bill 'may be insufficient to protect the right of the child to have his or her best interests taken as a primary consideration'.
1.35
The PJCHR recommended that the statement of compatibility with human rights in the EM be updated to include the information provided to the committee by the Attorney-General.