BILLS DIGEST NO. 66, 2017–18              25 January 2018

Family Law Amendment (Family Violence and Other Measures) Bill 2017

Mary Anne Neilsen
Law and Bills Digest Section 

Date introduced:  6 December 2017

House: Senate

Portfolio: Attorney-General

Commencement: Part 1, Part 3, and Division 1 of Part 2 in Schedule 1 commence the day after the Act receives Royal Assent. Division 2 of Part 2 in Schedule 1 commences 12 months after Royal Assent unless earlier by Proclamation.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at January 2018.

Purpose of the Bill

The purpose of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 (the Bill) is to amend the Family Law Act 1975 to strengthen the powers of courts to protect victims of family violence and facilitate the resolution of family law matters by state and territory courts in certain situations.

Background

Recent political debate about family law has focused on how the system has dealt with the complex problems of family violence.[1] As various studies have indicated, families with complex needs, including those related to violence, are the predominant clients of the family law system.[2]

The Australian Parliament has already paid considerable attention to proceedings relating to family violence in parenting under the Family Law Act. Amendments in 2012 made under the Labor Government were significant and intended to place family violence at the centre of parenting cases.[3]

Under the Family Law Act judges now have two primary considerations when assessing what is in the best interests of the child:

•       the benefit to children of having a meaningful relationship with both of their parents and

•       the need to protect them from physical or psychological harm, including being subjected or exposed to violence.[4]

Furthermore, where there is a clash between these two interests, the safety of children is to be prioritised over the benefits of a meaningful relationship with both parents.[5]

The effect of these reforms is as yet unclear. However, as former Chief Justice of the Family Court of Australia, Diana Bryant, has frequently said, legislative amendment alone does not suffice and without resources these reforms are inadequate.[6]

Reviews and inquiries

The last ten years have seen a plethora of reviews and inquiries into family law matters including the issue of family violence and child abuse.

In one of the more recent inquiries the Coalition Government tasked the Family Law Council to inquire into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. This inquiry was a response to ‘the growing concerns about the separation of the federal family law and state and territory child protection and family violence systems and the risks to children’s safety associated with this situation’.[7] The inquiry reported in two stages. Its first interim report in 2015 focused on the first two terms of reference that addressed ‘the prospect of having a streamlined, coherent and integrated approach to improve the overall safety of families and in particular children, while involved in the family law, child protection and family violence jurisdictions’.[8] It made six recommendations, a number of which have been taken up in the Bill. The final report released in 2016 focussed on the remaining three terms of reference and concentrated on ‘opportunities to enhance collaboration and information sharing within the family law system as well as other support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant services’.[9] It made a further 22 recommendations, one of the more significant being that a comprehensive review of Part VII of the Family Law Act, which guides the resolution of children’s matters, is warranted.

Council considers that this process should be undertaken with a view to ensuring child safety is prioritised in both decision-making and advice-giving contexts, and to supporting efficient and expeditious decision-making in light of the complex features of the contemporary client base of the family courts.[10]

Another major review, conducted in 2009–10 by the Australian and New South Wales Law Reform Commissions (the ALRC/NSWLRC report) addressed the issue of inconsistencies in the interaction and application of the Commonwealth and states regarding domestic violence, child protection, sexual assault and family law.[11] The Bill includes amendments based on recommendations made in the ALRC/NSWLRC report.

There have been other recent reports and enquiries that have also considered the need for changes to the Family Law Act and the broader family law system. The Explanatory Memorandum list includes the:

•       Victorian Royal Commission into Family Violence (2016) and

•       Coronial Inquest into the Death of Luke Batty (2015).[12]

The Council of Australian Governments (COAG) has also been active. In recognition of the fact that a whole-of-government and community response is required to address family violence, COAG established an Advisory Panel on Reducing Violence against Women and their Children. The Panel delivered its final report to COAG on 1 April 2016.[13]

Exposure Draft Family Law Amendment (Family Violence and Other Measures) Bill 2017

On 9 December 2016, the Government released the Exposure Draft Family Law Amendment (Family Violence and Other Measures) Bill 2017 and a related consultation paper.[14] The Exposure Draft Bill was described as addressing recommendations of the Family Law Council’s reports, the recommendations of the Victorian Family Violence Royal Commission, and the Australian Law Reform Commission report on family violence. Submissions on the Exposure Draft Bill and consultation paper are available on the Attorney-General’s Department’s website.

The Exposure Draft, with some amendments, formed the basis for the Bill introduced into Parliament on 6 December 2017.

Other measures

The media release announcing the release of the Exposure Draft Bill also referred to other measures being undertaken by the Turnbull Government to improve the family law system and in response to family violence. These measures include:

•       the work of COAG to establish a national domestic violence order scheme, under which domestic violence orders are automatically recognised and enforceable in any state or territory of Australia

•       a review of Part VII of the Family Law Act to be conducted by the Australian Law Reform Commission, so that matters involving at risk children can be dealt with more swiftly

•       $350,000 for a new training package to improve judicial officers’ awareness and understanding of family violence. The new training package will be delivered by the National Judicial College of Australia and will provide judicial officers with specialist training about the nature and dynamics of family violence, and how these should be taken into account in matters involving family violence

•       a Commonwealth-funded National Domestic and Family Violence Bench Book to be rolled out across Australia in 2017 and 2018.[15]

A further measure involving legislative change is the proposal to establish a pilot Parenting Management Hearings scheme, a new forum for resolving family law disputes between self-represented litigants. The amending legislation, the Family Law Amendment (Parenting Management Hearings) Bill 2017 is currently before the Parliament.[16]

While consideration of these measures is beyond the scope of this Bills Digest, the Key issues and provisions section below makes reference to some of them in the context of discussion of the Bill’s provisions.

Family Law Amendment (Financial Agreements and Other Measures) Bill 2015

Some of the amendments in the current Bill were also included in the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (the 2015 Bill) which was introduced into Parliament on 25 November 2015.[17] That Bill lapsed at the dissolution of Parliament on 9 May 2016. The consultation paper on the Exposure Draft Bill states that those amendments were included in that draft to confirm the Government’s intention to reintroduce them at the next opportunity.[18] The Senate Legal and Constitutional Affairs Legislation Committee report on the 2015 Bill and relevant submissions are referred to in this Bills Digest. Details of that inquiry are at the Committee homepage.[19]

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 20 April 2018. Details of the inquiry are at the Committee homepage.[20]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing the Committee has not reported on the Bill.

Policy position of non-government parties/independents

At the time of writing, there appears to be no publicly available comment on the Bill from non-government parties or independents.

Position of major interest groups

At the time of writing, there appears to be no publicly available comment on the Bill. However there were numerous submissions on the Government’s consultation paper and Exposure Draft Bill from interested parties including from key representatives of the legal profession and the courts, from women’s and children’s advocacy bodies and from individuals. These submissions are available on the Attorney-General’s Department website.

Many submitters gave in-principle support to many of the amendments, although this support was often qualified with concerns raised about the resourcing implications for state and territory courts.

The Bills Digest refers to these views under the Keys issues and provisions heading.

Financial implications

The Explanatory Memorandum states that there are no immediate financial implications from implementing these amendments.[21] It also states that ‘the Australian Government is discussing with states and territories any financial implications arising from prescribing state and territory courts in subsequent Regulations’.[22]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[23]

Parliamentary Joint Committee on Human Rights

At the time of writing the Parliamentary Joint Committee on Human Rights had not reported on the Bill.

Key issues and provisions

Part 1: Family law matters to be resolved by state and territory courts

Part 1 of Schedule 1 to the Bill proposes amendments aimed at facilitating further involvement by state and territory courts in family law matters. This is principally to allow issues involving a family law matter to be heard in a single venue, rather than requiring parties to negotiate different court systems for various aspects of their case.

Exercise of family law jurisdiction by children’s courts

Decision-making in parenting cases is governed by Part VII of the Family Law Act which is titled ‘Children’. This Part empowers the family courts, and in defined circumstances, state and territory courts of summary jurisdiction, to make orders about with whom a child will live, how much time the child should spend with other people, and how often and the way in which a child and parent should communicate with one another.[24]

Section 69J vests state and territory courts of ‘summary jurisdiction’ with federal jurisdiction to make orders under Part VII of the Family Law Act, including parenting orders. Section 69N limits this power to circumstances where the parties consent to the orders being sought or where the parties consent to the court of summary jurisdiction hearing and determining the matter.

Magistrates’ courts and local courts will usually be courts of summary jurisdiction.[25] In some states and territories, children’s courts are also part of the magistrates’ or local court and these courts most likely fall within the definition of a ‘court of summary jurisdiction’, with the jurisdiction to make parenting orders under section 69J of the Family Law Act.

However, as the Explanatory Memorandum and the Family Law Council 2015 report both note, uncertainty remains about whether this jurisdiction extends to specialist children’s courts that are not part of a magistrates’ court.[26]

In its first report (2015), the Family Law Council noted that there are a number of potential benefits of enabling state and territory children’s courts to exercise jurisdiction under the Family Law Act to make parenting orders in certain circumstances:

In particular, there are significant potential benefits for children where the matter is already before the children’s court and a parent or kinship carer needs orders for (sole) parental responsibility to support their care of the children. Enabling children’s court judicial officers to exercise Family Law Act powers in this situation would mean that the parent or carer could obtain parenting orders in the court with which they are familiar.[27]

The report continued:

Council believes there are circumstances where an interim decision by a children’s court would be beneficial for families who need parenting orders when a child protection matter has been finalised and the children’s court (and the child protection department) is familiar with the family’s circumstances. In Council’s view, children’s courts should be supported to exercise jurisdiction under the Family Law Act in such circumstances where appropriate.[28]

The Family Law Council therefore recommended that the Family Law Act be amended to remove any doubt that children’s courts, no matter how constituted, are able to make family law orders under Part VII of the Family Law Act in the same circumstances that are currently applicable to courts of summary jurisdiction.[29]

The Bill responds to this recommendation. In particular, item 6 would insert proposed section 69GA into the Family Law Act, its effect being to expressly allow relevant state and territory courts, such as children’s courts, to be prescribed by regulation as having the same family law parenting jurisdiction as that held by state and territory courts of summary jurisdiction. Such proceedings would be referred to in the Act as ‘section 69GA proceedings’ (item 1). Before prescribing courts the Minister must be satisfied that the relevant State or Territory Minister has been consulted (proposed subsection 69GA(5)).[30]

The Explanatory Memorandum clarifies that it is not to be taken that, if a state or territory children’s court is not prescribed by the Regulations, then it is not able to make family law orders under Part VII as a court of summary jurisdiction.

Rather, it is intended that, in cases where there is doubt, a court can be prescribed by the regulations so as to remove any doubt as to its capacity to exercise such jurisdiction.[31]

Items 2, 8, 9 and 11 are consequential amendments and insert various references to proceedings heard in a court prescribed by the Regulations for the purposes of section 69GA. For example item 2 would repeal and replace existing subsection 28(2) to provide that the jurisdiction of the particular family court may be exercised by one Judge or by a Full Court in an appeal from either a court of summary jurisdiction, or a court prescribed by regulations for the purposes of new section 69GA.

The Explanatory Memorandum states that these section 69GA amendments are aimed at enhancing the capacity of the federal family law, and state and territory child protection and family violence systems, to ‘deliver integrated services to families with multiple legal needs, by removing some of the existing Commonwealth legislative barriers to state and territory children’s courts exercising family law jurisdiction’.[32]

Comment

The Family Law Section (FLS) of the Law Council of Australia in its submission on the Exposure Draft Bill had reservations about these proposed amendments, particularly in relation to funding and training. FLS points out:

It should be noted that the Family Law Council recommended an increase in Commonwealth funding to state and territory courts of summary jurisdiction to enable them to take on more family law work (Part 2 page146). The Public Consultation Paper appears to make no mention of this.

Unless the Government is prepared to couple these legislative amendments with a commitment to increase funding to state and territory courts of summary jurisdiction, as well as children’s courts, then the proposed amendments are unlikely to have any practical effect on the ground; may alienate stakeholders who could see it as cost-shifting by the Commonwealth; or may result in list blowouts in the children’s court, the jurisdiction which has the most urgency for resolution of matters concerning the protection of children.[33]

FLS also question the Consultation paper’s assertion that ‘Many state and territory courts already exercise family law jurisdiction on a regular basis’. According to the FLS:

That is not, respectfully, the experience of family lawyers. In fact, the experience of most family lawyers is that judicial officers in state and territory courts do not regularly exercise their Family Law Act jurisdiction. State and territory courts are struggling to meet the demands of the caseload arising from their local jurisdiction and most do not have the resources (court time) available to hear and determine, for instance, interim parenting applications. Many judicial officers in the state and territory local courts do not have experience or knowledge of the family law jurisdiction, or have only limited knowledge and experience, and are or may be reluctant to exercise their powers as a result.

FLS is concerned about the training of state and territory judicial officers in family law. Whilst FLS is supportive of the initiative of commonwealth training, FLS strongly believes that such training must be ongoing so that state and territory judicial officers are kept up to date about changes in the law, and so that any new judicial officers appointed to the state and territory local courts receive the base level training as part of their induction.[34]

Former Chief Justice Diana Bryant also expressed concern about the adequacy of the training in family law to be provided to state and territory judicial officers stating:

The Consultation Paper indicates (at page 5) that there will be one training module provided covering family law. This belies the complexity of family law decision-making in the realms of both parenting (including on an interim basis) and property and I strongly query its sufficiency to prepare the relevant judicial officers for decision-making in this area of law.[35]

Property jurisdiction of state and territory courts

As noted above, sections 69J and 69N of the Family Law Act vest each state and territory court of summary jurisdiction with federal jurisdiction to determine children’s matters under Part VII of the Act in certain circumstances.

In addition section 46 provides that courts of summary jurisdiction can hear contested property matters without the parties consent up to the total property value of $20,000.[36]

Item 4 inserts proposed section 46A which would provide that the property value for the purposes of section 46 would be $20,000 or a higher amount if prescribed by Regulations. The rationale for allowing for an increase in the property value is to enable parties to resolve related matters together in state and territory courts which would ‘reduce the cost, pressure and risk for vulnerable families’ who are dealing with legal matters across multiple courts.[37] The Explanatory Memorandum further explains:

State and territory courts are not intended to become the primary fora for resolving family law disputes. Rather, these amendments are intended to provide state and territory judicial officers with additional tools to resolve matters involving family violence holistically, and prevent further violence by reducing the sometimes complicated legal processes.[38]

Comment

Several submissions supported such an increase but argued that the amount should be stipulated in the Act and not in the Regulations. For example, the former Chief Justice of the Family Court of Australia stated:

I do not dispute the desirability of seeking to better enable courts of summary jurisdiction to deal contemporaneously with minor property law matters and matters involving family violence. I also acknowledge that this proposed amendment would implement recommendation 15-2 of the Family Law Council’s final report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems and partially implement recommendation 131 of the Victorian Royal Commission into Family Violence.

However, despite my in-principle support for this measure, I would like to express my concern about leaving the amount to be prescribed by the Regulations.[39]

Similarly the FLS of the Law Council supported an increase in the jurisdiction of state and territory courts in family law property matters to promote opportunities for resolution of multiple aspects of a case in the one court. It proposed that a limit of $100,000 be set by the Act, rather than Regulations, to enable proper consideration of future proposals (if any) to increase the amount.[40]

Short form judgements

Item 10 deals with short form reasons for decisions relating to interim parenting orders.[41]

It inserts proposed section 69ZL which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. Proposed subsection 69ZL(2) clarifies that should a court choose to give reasons for its decision in short form, it will still be obliged to ensure that those reasons are adequate and comply with other obligations. The Explanatory Memorandum notes that the amendment is intended to encourage judicial officers to consider giving short form judgments in interim hearings and to reduce the perceived barrier noted by the Family Law Council. The amendment is not intended to, and should not be read to limit the courts’ existing powers in any way.

For example it should not be implied that courts cannot deliver short form judgments in final proceedings or in proceedings under other Parts of the Act.[42]

Comment

The FLS of the Law Council generally supports this amendment but is of the view that it is unlikely to have any impact without broader amendment and simplification of the interim parenting decision making process mandated in Part VII of the Act.

FLS notes that judicial officers in specialist family courts have rarely been able to deliver ‘short form’ judgments in interim parenting cases, and it is on balance unlikely that less experienced judicial officers in the state and territory courts would be able to do so without falling into error.[43]

Professors Richard Chisholm and Patrick Parkinson in their submission on the Exposure Draft also questioned the value of this amendment and as they noted, short form judgements are already permissible. In their view the complexity of the analysis required in interim parenting proceedings is not conducive to short form judgements:

We therefore doubt that the provision would enable these courts to deliver parenting judgments of an abbreviated kind without running the risk of being overruled on appeal […], the necessary contents of a judgment reflect that complexity of the legal and factual material to be covered, and the complexity of the substantive law. The proposed amendment would not reduce that complexity.[44]

Part 2: Strengthening the powers of the courts to protect victims of family violence

Part 2 of Schedule 1 of the Bill proposes amendments aimed at strengthening protections from family violence.

Summary dismissal of unmeritorious claims

Item 14 would insert proposed section 45A which would replace existing section 118.[45] It proposes amendments that strengthen the powers of courts under the Family Law Act to make summary decrees to dismiss unmeritorious applications.

Proposed subsections 45A(1) and (2) would allow the court to make a summary decree in favour of one party, in relation to the whole or part of a proceeding, if satisfied that a party has no reasonable prospect of successfully prosecuting/defending the proceedings or part of the proceedings. In determining whether a defence or proceeding has no reasonable prospect of success, proceedings need not be hopeless or bound to fail (proposed subsection 45A(3)).

Proposed subsection 45A(4) would also empower the court to dismiss all or part of the proceedings if it is frivolous, vexatious or an abuse of process. This reflects the existing dismissal power in existing section 118. Proposed subsection 45(5) confirms that proceedings are not frivolous, vexatious or an abuse of process merely because an application relating to the proceedings is made and later withdrawn.

Proposed subsections 45A(6)–(8) would confirm other powers of the court including the power to makes costs orders as it sees fit.

The Explanatory Memorandum states that proposed section 45A would improve outcomes for victims of family violence by strengthening the court’s powers to dismiss proceedings where people are using the legal system as a tool of victimisation. It would also improve court efficiency by providing greater clarity on when applications can be dismissed by the court.[46]

Comment

The Law Society of New South Wales and the former Chief Justice of the Family Court support this amendment.[47] The FLS of the Law Council on the other hand cannot discern how the proposed section adds to, detracts from, or changes the powers currently vested in the court.[48]

The Women’s Legal Service Queensland, while supporting provisions that strengthen the court’s ability to dismiss unmeritorious claims, argues that because of the number of litigants in person in the family law system there should be careful consideration about whether this provision will achieve its policy objective and instead may be misused by the more powerful party and further injustice.[49]

Their submission to the Senate Legal and Constitutional Affairs Committee in 2015 states:

Many of our clients who are victims of family violence are also litigants in person. Often their paperwork is not of a high standard and they can present badly because of their fear and trauma. They can often be facing their perpetrator on the other side who is at times legally represented, as he can afford this. Her claims may seem on their face unmeritorious. In many instances her case, with assistance, could be substantially improved with the gathering of evidence and assistance with affidavit materials.

We are concerned however that this provision can be misused by perpetrators or their lawyers to threaten her that her case is without merit and they will seek to dismiss it and seek costs against her. We have concerns that if she withdraws and then seeks legal assistance and files again later with a stronger case, she may still be perceived as vexatious for making multiple applications.

We believe there are other ways that victims of family violence can be protected in the family law system.[50]

Dispensing with explanations regarding orders or injunctions to children

Existing section 68P sets out the obligations of a court when making an order or granting an injunction under the Act, that is inconsistent with an existing family violence order. Item 17 amends section 68P removing the requirement for the court to explain orders or injunctions that are inconsistent with an existing family violence order to a child where it would not be in the child’s best interest.

In determining whether it is in the child’s best interest not to receive an explanation the court must have regard to the matters for determining the child’s best interests in existing subsection 60CC(2) and may (but is not required) to have regard to all or any of the matters set out in existing subsection 60CC(3). Subsections 60CC(2) and (3) provide considerations to be taken into account in determining the best interests of a child. Subsection 60CC(2) provides that the primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being exposed to family violence. The Explanatory Memorandum argues:

[…] these would be relevant and beneficial considerations in a judge’s decision about whether to provide a child with an explanation of an order made which affects them. Subsection 60CC(3) provides an extensive list of additional considerations, not all of which would be relevant to such a decision. To require consideration of all those matters in the context of section 68P would be excessive and unnecessary.[51]

It appears that this provision is now drafted to take account of some of the concerns expressed in submissions on the Exposure Draft Bill. That Bill had provided that a judge could dispense with an explanation on the grounds that the child would be too young to understand the explanation. Several submitters, including the National Children’s Commissioner had questioned a reliance on age, arguing that it could deprive children and young people of information relevant to their wellbeing and is at odds with the principles of the child’s best interests.[52]

Time limits on orders issued by state and territory courts

Section 68R is in Part VII Division 11 of the Family Law Act, which deals with inconsistency between protection orders made under state and territory family violence legislation and Family Law Act orders that provide, require or authorise a person to spend time with a child. The purpose of this Division is:

•       to resolve inconsistencies between orders

•       to ensure that such orders do not expose people to family violence and

•       to achieve the objects and principles in section 60B of the Family Law Act, which relate to meeting the child’s best interests.[53]

Section 68R addresses the situation where a victim of family violence seeks a protection order after a parenting order has been made and is seeking conditions in that protection order that would be inconsistent with the existing parenting order. As the Australian Law Reform Commission has explained:

Because conditions in a parenting order made under the Family Law Act will override any inconsistent conditions in a protection order,[54] a protection order that is inconsistent with a parenting order may not provide effective protection for a victim of family violence, as the inconsistent conditions in the protection order are not binding and cannot be enforced. Section 68R provides a mechanism for state and territory courts to amend the parenting order to remove the inconsistency and ensure that the person is protected from violence.[55]

Section 68R operates differently depending on whether a parenting order is amended by a state or territory court during proceedings for an interim protection order or for a final protection order. When a parenting order is revived, varied or suspended under section 68R in proceedings to make or vary an interim protection order, section 68T provides that the variation or suspension of the parenting order only has effect for the period of the interim protection order or 21 days from the date of the order, whichever is earlier. In contrast, the Family Law Act does not place a time limit on parenting orders revived, varied, discharged or suspended in proceedings to make or vary a final protection order.

The Explanatory Memorandum explains that the existing strict 21 day time limit can result in inconsistent orders about parent-child contact. For example, if a party is unable to have their parenting matter heard in the family courts within 21 days, the parenting order that was varied or suspended by the state or territory court is revived. This can result in two valid, yet inconsistent, orders— an interim family violence order prohibiting or limiting the other party’s contact with a child, and a parenting order providing for the party’s contact with the child. This outcome has the potential to put children and their carers at risk of further family violence.[56]

To address this issue, items 18 and 19 would amend section 68T in order to remove the 21 day limit and instead provide that the court’s revival, variation or suspension under section 68R ceases to have effect at the earliest of:

•       the time the interim family violence order stops being in force

•       the time specified in the interim order

•       the time that the order is affected by an order made by a court.

The effect would be that any revival, variation or suspension of an Order would always cease upon the expiration of the interim protection order, but judicial officers would have the flexibility to determine timeframes and relist matters to manage cases according to their particular circumstance.[57]

This amendment would implement recommendation 4 of the Family Law Council’s Interim Report[58] which in turn recommended the Government adopt the relevant part of Recommendation 16-5 of the Australian and NSW Law Reform Commissions’ 2010 report.[59]

Comment

The Chief Magistrate, Adelaide Magistrates Court in her submission on the 2015 Bill argued the removal of the 21 day period in section 68T will create difficulties with a significant risk that parties may choose to lodge their matters at the Magistrates Court rather than the Family Court with a substantial shift of the work from the Commonwealth jurisdiction to the State jurisdiction. This has the potential to create significant practical difficulties for the Magistrates Court.[60]

The Magistrates’ Court of Victoria (MCV) supports the removal of the 21 day time limit subject to funding and appropriate resourcing. The MCV is however concerned about the resourcing implications noting:

This is, however, likely to significantly increase the workload of the MCV as parties are likely to utilise this provision more readily where there is greater certainty around its application and there are likely to be significant resourcing implications as a result;

In order to effectively make these orders the MCV should therefore have access to existing FLA orders to ensure that in exercising its power to suspend, vary or revive existing FLA orders it is doing so consistently and with regard to those FLA orders, and not relying on parties self-reporting, particularly where there are not represented (typically on an interim basis). The MCV therefore recommends investment in better resourcing for the MCV and requires further clarification around how information is to be shared between the MCV and FCC [Federal Circuit Court]/Family Court.[61]

Offences for breaching injunctions

As currently provided in the Family Law Act courts may grant personal protection injunctions. In particular section 68B in Part VII permits a court to grant an injunction to protect the welfare of a child. Section 114 in Part XIV permits a court to grant an injunction in circumstances arising from proceedings to do with a marital relationship where the court considers it proper. Contravention of an injunction is currently a private matter between the parties and can only be enforced if the aggrieved party brings a civil enforcement action in a family court.

The reports of the ALRC/NSWLRC and the Victorian Royal Commission into Family Violence both recommended that the Family Law Act be amended to provide that a breach of an injunction for personal protection including an injunction restraining a person from entering or remaining in certain places become a criminal offence.[62] The rationale is that this would enable the family law courts to provide additional protection for victims of family violence. It would also remove the onus on the victim of family violence to bring the application for breach of the injunction.[63] As the Government’s consultation paper explains:

The State enforces the criminal law. Actions brought in respect of a criminal offence are brought as a prosecution, by the State (these are not civil disputes). By criminalising this conduct, the amendment would reinforce that family violence is not a private matter. It is a matter of public concern.

It would also enable state police to enforce the injunctions. Although police are currently empowered to arrest individuals who breach orders, without criminalisation of this conduct, breaches of these injunctions remain a civil matter, only enforceable by the aggrieved party returning to court. This delay can lead to perpetuation of abuse, and the lack of immediate consequences could lead to an escalation of conflict.

Making a breach of these orders a criminal offence would, by effectively providing the family law courts with an enforceable restraining order, reduce the number of courts that a person subject to violence is required to interact with.[64]

Accordingly items 27 and 28 in the Bill propose amendments that criminalise breaches of family law injunctions made for personal protection.

Under proposed section 68C it would be a criminal offence for a person (the respondent) to breach a personal protection injunction made under section 68B. The elements of the offence set out in subsection 68C(1) are:

•       there is an injunction in force under section 68B that is expressed to be for the personal protection of another person

•       the injunction is directed against the respondent

•       the respondent engages in conduct and

•       the conduct breaches the injunction.

Intentionally engaging in this conduct would constitute an offence punishable by up to two years imprisonment and/or 120 penalty units ($25,200).[65]

Proposed subsections 68C(2) and (3) provide that the defence of self-induced intoxication cannot be relied on. Proposed subsection 68C(4) provides that criminal responsibility does not extend to the person protected by the injunction if their conduct results in a breach of the injunction. This is to ensure that victims of family violence cannot be charged with aiding and abetting the offence if their actions invite a breach.[66]

Proposed section 114AA creates an offence of breaching an injunction for personal protection made under section 114. It is drafted in the same terms as the proposed section 68C offence.

Related to these amendments are proposed sections 68D, 68E, 114AAB and 114AAC. These provisions have the effect of allowing state and territory courts to revive, vary, or suspend existing injunction or other specified instruments[67] when hearing proceedings to do with breaches of personal protection injunctions. The Explanatory Memorandum states that these sections will allow a court to ensure that family law orders are not inconsistent with state or territory family violence orders and that family law orders do not operate to expose a person to family violence.[68]

Comment

The FLS of the Law Council in its submission on the Exposure Draft Bill supported ‘legislative changes to criminalise breaches of injunctions for personal protection made under the Family Law Act as a means of increasing their effectiveness to protect victims of family violence and to provide a clear direction to police to enforce injunctions’. However, the FLS raised concerns about the proposed amendments in terms of the interaction of state/territory courts and police officers and Commonwealth laws, the effect of the amendments on court users and their application by judicial officers, legal practitioners and state and territory police.[69]

The Law Society of New South Wales agrees that the amendments raise complex issues and that practitioners hold differing views. While the Law Society’s Family Law Committee supports the proposed amendments, the Society’s Criminal Law Committee opposes the creation of a new offence and considers there are preferable ways of addressing the enforceability issue.[70]

Concluding comments

At the time of release of the Exposure Draft Bill advocates against family violence were generally supportive of the proposed amendments, although there were reservations amongst many about whether they would achieve the purpose of offering better protection of victims of family violence. A common theme coming through submissions was that much more extensive change and resourcing is needed to make the safety of women and children central to the family law system. Since the release of the Exposure Draft in December 2016 the Government has announced further initiatives including an ALRC review of the Family Law Act due to report in 2019. It would seem that the provisions in the Bill are in comparison fairly minimal fine-tuning and would appear to be an interim solution to a much bigger problem.

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[1].              Family violence, the term used throughout the Bill is defined by section 4AB of the Family Law Act to be ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful,’ which includes a sexual assault or other sexually abusive behaviour.

[2].              M Neilsen, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, Bills digest, 126, 2010–11, Parliamentary Library, Canberra, May 2011, p. 7.

[3].              Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.

[4].              Subsection 60CC(2) of the Family Law Act 1975.

[5].              Ibid., subsection 60CC(2A).

[6].              D Bryant, The family courts and family violence, speech presented by the Hon Chief Justice Diana Bryant AO to the Judicial Conference of Australia Colloquium, 10 October 2015. Quoted in: M Neilsen, ‘Family law reform and family violence’, Briefing book: key issues for the 45th Parliament, Parliamentary Library, Canberra, 2016, p. 194.

[7].              Family Law Council, Interim report to the Attorney-General: in response to the first two terms of reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems, June 2015, p. 1.

[8].              Attorney-General’s Department (AGD), Family Law Council published reports, ‘Reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems’, AGD website.

[9].              Ibid.

[10].              Family Law Council, Family Law Council report to the Attorney-General on families with complex needs and the intersection of the family law and child protection systems : final report - June 2016 (Terms 3, 4 & 5), June 2016, p. 12. The relevant recommendation is recommendation 22.

[11].              Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family violence–a national legal response, report, 114, vol. 1, ALRC, Sydney, 2010.

[12].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 2; Victoria, Royal Commission into Family Violence, Summary and recommendations, The Commission, Melbourne, March 2016; Coroner’s Court of Victoria, Finding into death with inquest: inquest into the death of Luke Geoffrey Batty, court reference COR 2014 0855, 28 September 2015.

[13].              Council of Australian Governments (COAG), COAG Advisory Panel on Reducing Violence against Women and their Children: final report to COAG , [Department of the Prime Minister and Cabinet], [Canberra], 1 April 2016.

[14].              M Turnbull (Prime Minister), G Brandis (Attorney-General) and M Cash (Minister for Women), New criminal offence to better protect victims of family violence, joint media release, 9 December 2016.

[15].              Ibid.

[16].              The links to the Bill, its Explanatory Memorandum, second reading speech and Bills Digest can be found on the Bill’s home page.

[17].              Ibid.

[18].              AGD, Amendments to the Family Law Act 1975 to respond to family violence, public consultation paper, December 2016, p. 3. Available on the AGD website at ‘Proposed amendments to the Family Law Act 1975 to respond to family violence’.

[19].              Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 homepage, Parliament of Australia.

[20].              Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Family Law Amendment (Family Violence and Other Measures) Bill 2017 homepage, Parliament of Australia.

[21].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 3.

[22].              Ibid.

[23].              The Statement of Compatibility with Human Rights can be found at pages 4–8 of the Explanatory Memorandum to the Bill.

[24].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 13.

[25].              Under section 2B of the Acts Interpretation Act 1901 a court of summary jurisdiction is defined as ‘any justice of the peace, or magistrate of a state or territory, sitting as a court of summary jurisdiction’.

[26].              The Explanatory Memorandum endnote ii states: This uncertainty has been discussed in a number of recent reports. See, for example, paragraphs 19.121 to 19.124 of the Australian and New South Wales Law Reform Commission’s 2010 report Family Violence – A National Legal Response, and Chapter 4 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems.

[27].              Family Law Council, Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems, op. cit., p. 100.

[28].              Ibid., p. 101.

[29].              Ibid., p. 103–4.

[30].              This amendment would also partially implement recommendation 131 of the Victorian Royal Commission into Family Violence.

[31].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 14.

[32].              Ibid., p. 12.

[33].              Law Council of Australia, Family Law Section, Submission to the Attorney-General’s Department, Family Law Amendment (Family Violence and Other Measures) Bill 2017: Exposure draft, 17 February 2017, p. 4.

[34].              Ibid., pp. 4–5.

[35].              D Bryant, Submission to the Attorney-General’s Department, Exposure Draft: Family Law Amendment (Family Violence and Other Measures) Bill 2017, 13 January 2017, p. 4.

[36].              Section 46 provides that where a proceedings in relation to property of a value exceeding $20,000 are instituted in, or, transferred to, a court of summary jurisdiction and the respondent seeks an order different from that sought in the initiating application, then, unless each of the parties consents, the court must transfer the proceedings to one of the family law courts or the relevant state or territory supreme court.

[37].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 2.

[38].              Ibid.

[39].              D Bryant, Submission to the Attorney-General’s Department, op. cit., p. 2.

[40].              Law Council of Australia, Family Law Section, Submission to the Attorney-General’s Department, op. cit., pp. 5–6.

[41].              Interim orders are usually made in urgent cases and last until other orders or final orders are made.

[42].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 16.

[43].              Law Council of Australia, Family Law Section, Submission to the Attorney-General’s Department, op. cit., p. 5.

[44].              R Chisholm and P Parkinson, Submission to the Attorney-General’s Department, Family Law Amendment (Family Violence and Other Measures) Bill 2017: Exposure draft, 10 February 2017, p. 4.

[45].              Section 118 is to be repealed by item 23.

[46].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 18.

[47].              Law Society of New South Wales, Submission to the Attorney-General’s Department, Family Law Amendment (Family Violence and Other Measures) Bill 2017 Exposure draft, 20 January 2017, p. 2; D Bryant, Submission to the Attorney-General’s Department, op. cit., p. 3.

[48].              Law Council of Australia, Family Law Section, Submission to the Attorney-General’s Department, op. cit., p. 6.

[49].              Women’s Legal Service Queensland, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015, p. 8.

[50].              Ibid.

[51].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 21.

[52].              Australian Human Rights Commission, National Children’s Commissioner, Submission to the Attorney-General’s Department, Family Law Amendment (Family Violence and Other Measures) Bill 2017 Exposure draft, 20 January 2017, p. 2.

[53].              Section 68N of the Family Law Act.

[54].              Subsection 68Q(1) of the Family Law Act.

[55].              ALRC and NSWLRC, Family violence–a national legal response, op. cit., paragraph 16.17.

[56].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 22.

[57].              Ibid.

[58].              Family Law Council, Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems, op. cit., p. 104.

[59].              Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family violence–a national legal response, op. cit.

[60].              Chief Magistrate, Adelaide Magistrates Court, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015, December 2015.

[61].              Magistrates’ Court of Victoria, Submission to the Attorney-General’s Department, Family Law Amendment (Family Violence and Other Measures) Bill 2017: Exposure draft, February 2017, pp. 3–4.

[62].              Recommendation 17-4 of the Australian and NSW Law Reform Commissions’ 2010 report and Recommendation 131 of the Victorian Royal Commission into Family Violence. Cited in: Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 24.

[63].              AGD, Amendments to the Family Law Act 1975 to respond to family violence, public consultation paper, op. cit., p. 14.

[64].              Ibid., pp. 14–15.

[65].              Under subsection 5.6(1) of the Criminal Code Act 1995 the default fault element for a physical element consisting of conduct is intent. Under section 4AA of the Crimes Act 1914, a penalty unit is equivalent to $210.

[66].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 3.

[67].              The instruments listed include amongst others: parenting orders, recovery orders and injunctions granted under sections 68B or 114 (proposed paragraphs 68D(2)(b) and 114AAB(2)(b)).

[68].              Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2017, p. 34

[69].              Law Council of Australia, Family Law Section, Submission to the Attorney-General’s Department, op. cit., p. 7.

[70].              Law Society of New South Wales, Submission to the Attorney-General’s Department, op. cit., p. 3.