Introductory Info

Date introduced: 24 March 2021
House: House of Representatives
Portfolio: Attorney-General
Commencement: The majority of the Bill’s substantial amendments commence 12 months after Royal Assent unless commenced earlier by Proclamation. Further detail is set out on page 2 of this Bills Digest.

Purpose of the Bill

The main purpose of the Family Law Amendment (Federal Family Violence Orders) Bill 2021 is to amend the Family Law Act 1975 to establish federal family violence orders and provide for their criminal enforcement.

Structure of the Bill and commencement details

The Bill comprises four Schedules:

• Schedule 1 consists of the main amendments and the transitional, saving and application provisions. It commences 12 months after Royal Assent unless commenced earlier by Proclamation.[1] The Explanatory Memorandum states that the delayed commencement is intended to allow states and territories time to put in place legislative changes, training and other information sharing mechanisms to ensure the offences are enforceable by state and territory police under the National Domestic Violence Order Scheme (NDVOS).[2]
• Schedule 2 consists of consequential amendments. Part 1 contains the main consequential amendments and commences 12 months after Royal Assent unless commenced earlier by Proclamation. Part 2, Division 1 contains contingent amendments and commences at the same time, however, the provisions do not commence at all if Schedule 3 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (FCFC Consequential Provisions Act) has already commenced. Part 2, Division 2 contains consequential amendments to the Federal Circuit and Family Court of Australia Act 2021 (FCFC Act) and commences on the later of: immediately after the commencement of Schedule 1 and immediately after the commencement of Schedule 1 to the FCFC Consequential Provisions Act.
• Schedule 3 contains an amendment to the definition of ‘family violence order’ in section 4 of the Family Law Act. It commences on Royal Assent.
• Schedule 4 contains amendments to the FCFC Act and Family Law Act to provide increased protection for registrars in proceedings before the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Part 1 will commence on the later of: Royal Assent and immediately after the commencement of the FCFC Act. Part 2 will commence on the later of: Royal Assent and the commencement of the FCFC Consequential Provisions Act.

The Bills Digest deals mainly with the amendments made by Schedule 1.

Background

Family violence and the Family Law Act: an introduction

Political debate about family law has focused on how the system has dealt with the complex problems of family violence.[3] As various studies have indicated, families with complex needs, including those related to violence, are the predominant clients of the family law system.[4]

The Australian Parliament has already paid considerable attention to parenting proceedings relating to family violence under the Family Law Act. Amendments in 2012 made under the Labor Government were significant and placed family violence at the centre of parenting cases.[5] Other legislative reforms have been introduced in recent years including amendments aimed at addressing issues of inconsistencies in the interaction and application of the Commonwealth and states regarding domestic violence, child protection, sexual assault and family law; the protection of victims of family violence in family law proceedings; and the recent more controversial legislation establishing the Federal Circuit and Family Court of Australia. The effect of these changes is still unclear and, as the former Chief Justice of the Family Court of Australia, Diana Bryant, has frequently said, legislative amendment alone does not suffice and without resources reforms may be of little assistance.[6]

The complexity of family law is reflected in many ways, not least in the plethora of reviews and inquiries into family law matters including the issue of family violence and child abuse. Many of the recommendations in these reviews are yet to be addressed, with some critics suggesting that the Government should call a halt on reviews and instead focus on addressing many of the recommendations not yet implemented.[7]

Personal protection 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.[8] Section 114 in Part XIV permits a court to grant an injunction in circumstances arising from proceedings to do with a marital relationship. 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.[9]

A further complicating factor is that injunctions granted under section 68B and section 114 of the Family Law Act may operate alongside protection orders made under state and territory family violence legislation. Family violence legislation in each state and territory confers power to make protection orders on courts of summary jurisdiction in the relevant jurisdiction—that is, local or magistrates courts. These courts also have limited jurisdiction under the Family Law Act. Breach of a protection order under state or territory family violence legislation is a criminal offence, attracting a police response and invoking the criminal justice system.[10]

A major review, conducted in 2009–10 by the Australian and New South Wales Law Reform Commissions (the ALRC/NSWLRC review) 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 report of ALRC/NSWLRC review and the 2016 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.[12] The rationale is that this would enable the family law courts to provide additional protection for victims of family violence and would also remove he onus on the victim of family violence to bring the application for breach of the injunction.[13]

The Explanatory Memorandum for the Bill states that ‘by establishing criminally enforceable federal family violence orders, this Bill would send a message to family violence perpetrators that breaches of these protection orders will be taken seriously’.[14] The Explanatory Memorandum also notes that the Bill would lessen the need for victims of family violence to negotiate multiple court systems. It states:

The Bill would reduce the need for families to interact with multiple courts across the federal family law and State or Territory family violence systems. Access to federal family violence orders would mean that persons before a family law court would not be required to initiate separate proceedings in a State or Territory court for a criminally enforceable protection order, but can seek the protections they need in the court where their existing matter is already being heard.[15]

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

Amendments to criminalise breaches of family law injunctions made for personal protection were first introduced in the Family Law Amendment (Family Violence and Other Measures) Bill 2017 (2017 Bill).[16] At the time, some stakeholders, while supporting criminalisation of breaches of injunctions also expressed concern about the amendments. For example, the Family Law Section of the Law Council of Australia saw problems 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’.[17] Labor Senators were also critical of these provisions. Their Dissenting Report in the Senate Legal and Constitutional Affairs Committee report on the 2017 Bill called for ‘the provisions criminalising breaches of personal protection injunctions to be excised from the Bill and the intent of those provisions revisited as a matter of priority as soon as the Australian Law Reform Commission review of the family law system has released their report’.[18]

Before the passing of the 2017 Bill, the amendments on the criminalisation of breaches of injunctions were excised from the Bill; the Government’s Supplementary Explanatory Memorandum stating:

Successful implementation of these measures requires effective mechanisms to be in place to ensure that the offences could be properly enforced.

In consultation with the Government, and in evidence before the Senate Legal and Constitutional Affairs Legislation Committee, some stakeholders advocated for more time for the resolution of implementation issues, notwithstanding the proposed 12-month timeframe for the commencement of these measures.

Following the Australian Law Reform Commission’s comprehensive review of the family law system, and depending on its findings, consideration will be given to re‑introducing the proposed offences at a future time.[19]

The current Bill would appear to introduce a re-drafted version of the 2017 amendments. Those 2017 amendments that provided for enforcement of personal protection injunctions have been replaced with a new scheme of federal family violence orders (FFVOs) which if breached, can be criminally enforced.

National Domestic Violence Order Scheme

Of relevance to the amendments in the current Bill, is the National Domestic Violence Order Scheme (NDVOS). Introduced in November 2017, the NDVOS is a legislative scheme under which family violence orders are mutually recognised and enforced across jurisdictions. Each state and territory has its own NDVOS legislation, which provides that a family violence order issued in another Australian jurisdiction is to be treated as a local order for the purposes of enforcement. This means that the law of the state or territory in which the breach occurred can govern the arrest and detention of the person, the classification of the offence, and the applicable penalties where those state or territory police seek to enforce the order.[20]

At a meeting of the Council of Attorneys-General in November 2019, all participants agreed in principle that family law personal protection injunctions will be recognised on the NDVOS and enforced by state and territory police, once Commonwealth criminal offences for breaches of these injunctions commence.[21]

Recognising federal family violence orders on this scheme—which is expected to occur by way of state and territory legislative amendments commencing simultaneously with this Bill—would result in federal family violence orders being treated as a local order in the state and territory in which the breach occurs.[22] An offence under new section 68AG or under new section 113AG for breach of a federal family violence order[23] therefore could be prosecuted as a state offence in the jurisdiction in which the breach occurred. The penalty of the state or territory in which the offence is prosecuted would apply, meaning that penalties may differ.[24] It would also be possible for the Australian Federal Police to enforce the breach using Commonwealth enforcement powers, with the offence being prosecuted as a Commonwealth offence, and with the penalties and defences stipulated in new section 68AG applying.[25]

Committee consideration

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 29 July 2021. Details of the inquiry are at the Committee homepage.

Senate Standing Committee for the Scrutiny of Bills

The Committee had no comment on the Bill.[26]

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

The Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Bill has received 34 submissions from a range of advocacy groups including legal aid bodies, women’s advocacy groups, family violence prevention bodies, law reform bodies, bar associations, public prosecutors’ offices, and police.[27]

The Law Council of Australia in its substantial submission presents a view, expressed also by a number of other submitters, that while the intention of the Bill is laudable, there remains uncertainty about how the measures will operate in practice, and the demands they may create on the Family Courts.[28]

The Law Council’s submission addresses the following key issues in relation to the Bill:

• the likely increase in demand for the Family Courts under the proposed FVO regime, and the need for potential resourcing, training and infrastructure necessary to accommodate these pressures;
• the potential for systems abuse where parties may seek to increase the number, length and cost of family law or family violence proceedings through an additional FVO pathway;
• whether the Bill contemplates the making of interim orders, which are essential to ensuring timely protections for victims of violence;
• the potential for additional costs for private litigants, Independent Children’s Lawyers (ICLs) and the legal assistance sector as a result of the measures; and
• the current limitations to effective communication and information-sharing on FVOs between the Family Courts and the state and territory courts.[29]

Given the concerns about how the new measures might operate and the pressure they may bring to the Family Courts, the Law Council invites consideration of trialling the scheme in one or two registries, or for a limited time, and evaluating the impact before legislating to make changes on a permanent basis.[30]

The Law Council’s complete recommendations are set out on pages 6–7 of the submission.

National Legal Aid (NLA) also supports the intent of the Bill but has concerns and seeks further consultation to improve understanding of the Bill’s potential impact. NLA’s submission lists its key concerns as:

• the complexity of the proposed amendments and existing legislation
• that there are more people living in poverty than are eligible for a grant of Legal Aid for legal representation in Commonwealth family law proceedings
• the potential for people to become confused about the most effective pathway to quick protection, noting limited funding to legal aid commissions (LACs) means many people, including those experiencing multiple circumstances of disadvantage, may have to self-represent
• the need for early triage of all applications at the Family Law Courts, so that matters that need federal family violence orders can be responded to appropriately
• the need for a system which allows for the making of urgent ex parte and interim orders with early return dates. Both protection and procedural fairness are essential
• the readiness of triage systems and real time information sharing platforms
• the likely costs and resourcing impacts, including to LACs.[31]

Women’s Legal Services Australia (WLSA) acknowledges the good intention of the Bill, however it also expresses concern about the possible unintended consequences. WLSA’s submission raises a number of questions about the processes, operation and resourcing of the scheme, noting also that one of the main concerns of WLSA members is ‘the lack of safeguards in the Bill to prevent perpetrators of family and domestic violence from applying for an order as a way of further abusing the victim’.[32]

The Office of the Director of Public Prosecutions NSW (ODPP) is generally supportive of the Bill, noting that the current National Domestic Violence Order scheme has been largely successful in recognising family violence orders from other jurisdictions.[33] However the ODPP also raises some concerns with the Bill, noting in particular:

• concern about the overlap involved when concurrent federal and state family violence orders are in place which in the ODPP’s view is bound to create confusion for an individual subject to these orders
• issues of inconsistency between the Bill and state family violence orders[34]
• funding of individuals subject to and prosecuted for FFVOs, noting that given the serious penalties involved for breaching such orders, the ODPP reiterates the need for adequate funding to ensure due fairness to accused persons charged with breaching a FFVO.[35]

The reader is referred to the submissions on the Committee homepage for the views of other stakeholders.

Financial implications

The Explanatory Memorandum states that there are no direct financial implications from implementing these amendments. It also states that as part of the 2020–21 Budget, the Government:

has committed funding to ensure that key stakeholders and members of the public are aware of the commencement of the federal family violence order measures, develop training resources for police and judicial officers and ensure that information sharing and service arrangements are in place to enable the effective enforcement of federal family violence orders.[36]

The amount of that budget funding is $1.8 million over four years.[37]

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.[38]

Parliamentary Joint Committee on Human Rights

The Committee initially reported on the Bill on 29 April 2021 and raised two questions regarding the lack of detail in the statement of compatibility.[39]

The Committee acknowledged that the Bill, to the extent that it protects individuals from family violence, would promote a number of rights including the rights to life, security of the person, right to equality and non-discrimination and the rights of the child. However, the Committee noted that in order to achieve its important objectives, ‘the measure also necessarily engages and limits a number of other rights insofar as it will have the effect of prohibiting and restricting certain behaviours, movements and communications of the person against whom the order is directed’.[40]

While acknowledging that these rights can be subject to permissible limitations that are reasonable, necessary and proportionate, it was the Committee’s view that the statement of compatibility did not relevantly recognise that any rights are limited and so provided no assessment as to the compatibility of the Bill with these rights. The Committee therefore considered further information was required to assess the human rights implications of this measure, and as such sought the Minister's advice on this matter.[41]

The Attorney-General, in response, provided advice regarding the proportionality of the measure, identifying five safeguards that will help ensure that any limitation is proportionate to achieving the objective of better protecting victims of family violence and addressing the impacts of gender-based violence on women.[42]

The Committee accepted the Attorney-General’s advice and concluded that having regard to the various safeguards identified by the Attorney-General as well as the flexibility of the measure to treat different cases differently, the Committee considers that any limitation on rights would likely be proportionate to the important objective being sought. The report states:  

The Committee therefore considers that the measure would likely be a permissible limitation on the rights of the person against whom the order is directed.[43]

The Committee recommended the statement of compatibility with human rights be updated to reflect the information provided by the Attorney-General.[44]

The Committee also sought further advice from the Minister in relation to the provisions dealing with the interaction of federal and state laws and the restrictions placed on considerations of the best interests of the child.[45] This is discussed further below in relation to proposed section 68NC.

Key issues and provisions

Preliminary comments

The Family Law Act, which contains the central legislative provisions dealing with family law, is large and complex in structure and is divided into many substantive Parts. Of specific relevance to the Bill are Part VII dealing with matters to do with children and Part XIV dealing with declarations and injunctions made by a court in relation to marital relationships.

Under the Bill, a federal family violence order (FFVO) can be made in two broad circumstances:

• in relation to a child and
• in relation to a party to a marriage.

Provisions dealing with FFVOs in relation to children are inserted into Part VII of the Family Law Act. An equivalent and largely identical set of provisions dealing with FFVOs in relation to marital relationships is inserted into Part XIV.

For the sake of brevity, the Bills Digest provides a more detailed description of the Part VII amendments and a shorter summary of the Part XIV amendments.

Relevant definitions

It is also useful to highlight at the outset the meaning of certain terms that reoccur throughout the Bill.

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’. Examples of behaviour that may constitute family violence are set out in subsection 4AB(2) and include sexual assault or other sexually abusive behaviour. Subsection 4AB(3) provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

A family violence order is defined in subsection 4(1) of the Family Law Act as an order made under a prescribed law of a state or territory to protect a person from family violence and includes an interim order.

A federal family violence order (FFVO) is a new term to be inserted by item 1 in Schedule 1 to the Bill. A FFVO in relation to a child means an order under section 68AC and includes such an order as varied under section 68AI. A FFVO in relation to a party to a marriage means an order under section 113AC and includes such an order as varied under section 113AI.

A listed court is a new term to be inserted into section 4 by item 2 in Schedule 1 and refers to any of the following:

• the Family Court of Australia
• 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.

Matrimonial cause is defined in subsection 4(1) of the Family Law Act and includes a wide range of different proceedings under the Family Law Act. Within the Bill matrimonial cause is used very specifically and refers to proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (paragraph (e) of the definition).

FFVOs in relation to a child

Item 13 in Schedule 1 inserts new Division 9A into Part VII of the Family Law Act. The Division deals with FFVOs in relation to children and provides that any listed court will have the powers to make, vary, suspend and revoke FFVOs.

Within new Division 9A, proposed section 68AC provides that a listed court may make FFVOs:

• in proceedings under Part VII that relate to a child or
• in proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship[46] (to the extent that the proceedings relate to a child).

A listed court may make an FFVO on application or of its own motion.[47]

Under proposed section 68AB the following people may apply to a listed court for a FFVO in relation to a child:

• a party to a proceeding under Part VII that relates to the child (for example, proceedings relating to the issuing of parenting orders, location and recovery orders, and determinations on parental responsibility)
• a party to proceedings between the parties to a marriage for an order or injunction arising out of the marital relationship (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.

However a person may not apply for a FFVO where there is already a family violence order in force that provides protection for the same protected person from the person against whom a FFVO is being sought.[48] A family violence order is distinct from a FFVO in that it is made by a state or territory court.[49] The Explanatory Memorandum explains that subsection 68AB(2) reflects the intention that an FFVO would be available to persons who are already before a listed court, are in need of protection, and do not have an existing state or territory family violence order.[50]

A ‘protected person’ for the purposes of a FFVO

Under proposed subsection 68AC(3) an FFVO in relation to a child may provide for the personal protection of any one or more of the following persons (each of whom is a protected person):

• 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.

The order must be directed against a single person.[51]

Grounds for making a FFVO

Under proposed subsection 68AC(6) in order to make a FFVO, the court must be satisfied with the following three matters.

• firstly it must consider the FFVO appropriate for the welfare of the child before making such an order
• secondly it 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 whom the FFVO is intended to be directed. In satisfying itself on this matter the court should inspect any record, database or register that contains relevant information about family violence orders and is maintained by a government agency.[52] As already noted, a family violence order is distinct from a FFVO in that it is made by a state or territory court.

Terms of a FFVO

Proposed subsection 68AC(8) provides a listed court with the power to make FFVOs on the terms it considers appropriate in the circumstances for the welfare of the child. The terms, directed at the person to whom the order is made include but are not limited to any of the following:

• prohibiting family violence towards the protected person
• prohibiting family violence or exposure to family violence if the protected person is a child
• prohibiting the person’s contact with a protected person
• prohibiting the person’s ability to go to specified locations or within a specified distance of a protected person
• prohibiting the person from attempting to locate the protected person
• requiring the person to leave a certain place under certain circumstances
• any other term that the court considers reasonably necessary to ensure the personal protection of the protected person.

Relevant considerations by the court

Proposed subsection 68AC(9) sets out the matters a listed court must take into account when making a FFVO and deciding its terms. These are divided into a primary consideration and additional considerations and the court is required to give greater weight to the primary consideration.[53]

The primary consideration is the safety and welfare of the child, including the need to protect the child from being subjected or exposed to family violence.

The non-exhaustive list of additional considerations which a court must take into account if it considers them relevant, 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.
• any other matter.

Other obligations on the listed court

Proposed section 68AD sets out other administrative obligations on the listed court in relation to the making of FFVOs. Amongst other things the listed court must:

• give reasons for decisions about whether to make a FFVO
• provide copies of the FFVO to the relevant people
• provide explanations of the meaning of the FFVO in language likely to be readily understood.

Proposed section 68AE provides that the FFVO must be served on the person to whom it is directed according to the Regulations and/or Rules of Court.

The FFVO comes into force at the time it is made if the person to whom it is directed is present in the court at that time. Otherwise it comes into force when it is served on the person to whom it is directed.[54] It ceases to be in force at the earliest of the following times:

• the time specified in the order
• if and when the order is revoked
• for an order in relation to one child, when the child turns 18
• if the order relates to two or more children, when the youngest child turns 18.[55]

Offences for breaching a FFVO

Under proposed subsection 68AG(1) it would be a criminal offence for a person to breach a FFVO made under new section 68AC.

For a person to commit an offence:

• there must be a FFVO in force under Division 9A
• the order must be directed against the person
• the person must engage in conduct[56] and
• the conduct must breach a term of the order.

Intentionally engaging in this conduct would constitute an offence punishable by up to two years imprisonment and/or 120 penalty units ($26,640).[57]

Proposed subsections 68AG(2) and (3) provide that the self-induced intoxication cannot be considering in determining whether conduct was accidental or whether the person had a mistaken belief. The Explanatory Memorandum states:

These provisions reflect that the consumption of alcohol is a significant contributing factor in incidents of intimate partner homicide and incidents of non-fatal family violence. It would not be appropriate for a perpetrator to self-induce intoxication, and then have that fact relevant to a defence against charges relating to family violence. These provisions send a strong message that perpetrators of family violence will be held accountable for their actions.[58]

Proposed subsection 68AG(4) provides that criminal responsibility does not extend to the person protected by the order if their conduct results in a breach of the order. This is to ensure that victims of family violence cannot be charged with aiding and abetting the offence if their actions invite a breach.[59]

Note 1 under proposed subsection 68AG(1) highlights that conduct breaching a FFVO may also constitute a criminal offence under state or territory law. As noted above, this is because it is expected that FFVOs will be recognised under the NDVOS. This is the legislative scheme under which family violence orders are mutually recognised and enforced across jurisdictions. An offence under new section 68AG therefore could be prosecuted as a state offence in the jurisdiction in which the breach occurred. The Explanatory Memorandum further explains:

The penalty of the state or territory in which the offence is prosecuted would apply, meaning that penalties may differ. It would also be possible for the Australian Federal Police to enforce the breach using Commonwealth enforcement powers, with the offence being prosecuted as a Commonwealth offence, and with the penalties and defences stipulated in new section 68AG applying.[60]

Variation, revocation and suspension of a FFVO

Proposed section 68AI provides a listed court with the power to vary, revoke or suspend a FFVO in relation to a child. It may do so on application under new section 68AH or on its own motion.[61] A court will only be able to use such a power if the court considers the variation, revocation or suspension is 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 not before it when the order was made.[62]

If the court varies the order so as to provide protection for a new protected person, then 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].

The court must also be satisfied that there is no equivalent family violence order in place.[63]

Other administrative obligations are set out in proposed sections 68AJ, 68AK and 68AL and include requirements to give reasons for decisions, provide copies of documents, and provide for the service of variation and include details of timeframes of when variations, revocations and suspensions are in force. These provisions largely replicate equivalent requirements in relation to the making of FFVOs.[64]

Personal protection injunctions and FFVOs

Division 9 in Part VII deals with injunctions in relation to matters to do with a child. Currently under section 68B if proceedings are instituted in a court having jurisdiction under Part VII for an injunction in relation to a child, the court may make such orders or grant such injunctions as it considers appropriate for the welfare of the child, including an injunction for the personal protection of the child and other persons connected to the child.

Items 14–21 of Schedule 1 make amendments to Division 9 consequential on the new provisions dealing with FFVOs. Division 9 is re-titled ‘Orders and injunctions in relation to children (other than federal family violence orders)’.[65]

Item 18 inserts proposed subsections 68B(1A), 68B(1B), 68B(1C) and 68B(1D). Amongst other things the amendments place limits on the powers of the court in relation to the granting of personal protection injunctions where there is family violence. These limits include:

• if the court is a listed court:
  • before granting an injunction for the personal protection of a person from family violence, the court must consider making a FFVO
  • the court must not grant such a personal protection injunction if the court could make a FFVO.
• a person may not apply for a personal protection order if there is an equivalent state or territory family violence order in place
• a court may not grant such an injunction unless satisfied that the injunction is not inconsistent with any equivalent family violence order in place applying to the same persons.

Item 21 repeals section 68C. Currently section 68C gives the police power to arrest a person who has breached a personal protection injunction. The Explanatory Memorandum gives several reasons for repeal of this provision:

• the arrest power in this provision is currently not utilised because personal protection injunctions are not issued in a format compatible with police information sharing systems
• the new FFVOs would offer stronger protections for people experiencing family violence than personal protection injunctions and
•  in the case of FFVOs the powers of arrest provisions in the Crimes Act 1914 would be used.[66]

Relationship between FFVOs and family violence orders

‘Division 11–Family Violence’ of Part VII contains provisions dealing with the relationship between state and territory family violence orders and orders and injunctions made under the Family Law Act.

Items 22–27 propose amendments to expand Division 11 to include provisions dealing with the relationship between the new FFVOs and state and territory family violence orders.

Item 22 would repeal the existing heading and replace it with a new heading ‘Division 11– Relationship with family violence orders made under State and Territory laws’. Item 23 repeals and replaces section 68N which provides an expanded purposes provision reflecting the new amendments.[67]

Item 24 inserts new subdivisions B, C and D which address the concurrent operation of laws and the relationship between FFVOs and injunctions for personal protection under the Family Law Act, and family violence orders. The main provisions are proposed sections 68NA and 68NB.

Proposed subsection 68NA(1) provides that Division 9A, establishing FFVOs in relation to a child, is not intended to exclude or limit the operation of a law of a state or territory that is:

• capable of operating concurrently with that Division and
• prescribed by the Regulations for the purposes of this paragraph.

The Explanatory Memorandum explains the meaning of this provision stating:

All States and Territories have enacted legislation enabling their jurisdictions to issue family violence orders. A family violence order is a civil order, issued by the relevant State or Territory to protect people in domestic and family violence situations by prohibiting a person from committing certain behaviours. A breach of these orders is a criminal offence. It is intended that the State and Territory laws to be prescribed under new paragraph 68NA(1)(b) would be the laws under which family violence orders are issuable.

The introduction of federal family violence orders would supplement the existing State and Territory system. It is critical that persons seeking protection from family violence are able to access enforceable protection orders in whichever jurisdiction they are in. Federal family violence orders would be an option for persons in the family law system.[68]

Proposed subsection 68NA(2) is a similar provision in relation to Division 9 (the Division dealing with personal protection orders and injunctions in relation to a child, other than FFVOs). It confirms the concurrent operation of Division 9 with prescribed state and territory laws.

Proposed section 68ND clarifies that to the extent that a family violence order made under a law of a state or territory is not able to operate concurrently with a FFVO made under Division 9A because the terms of the orders are directly inconsistent, section 109 of the Constitution would operate to invalidate the state or territory family violence order to the extent of that inconsistency.[69]

Proposed section 68NB would allow state and territory courts with jurisdiction under Part VII of the Family Law Act,[70] to revoke or suspend a federal family violence order in proceedings to make or vary a state or territory family violence order. There are certain limits on this power:

• the power would be limited to proceedings in a state or territory court to make or vary a family violence order that is:
  • protecting the same persons currently protected by the FFVO and
  • is directed to the same person against whom the FFVO is directed.
• the court may revoke a FFVO only when making a final family violence order or making a final variation of a family violence order. The court may suspend a FFVO only when making an interim family violence order or an interim variation of a family violence order[71]
• in exercising this power, the state or territory court must have regard to:
  • whether the FFVO is adequate or is appropriate for the welfare of the child and
  • the purposes of Division 11.[72]

Note that the power in new section 68NB relates to revoking and suspending a FFVO. It does not include the power to vary a FFVO.

The Explanatory Memorandum explains the rationale for this provision and provides examples of how it might operate:

… persons who have been issued with a federal family violence order may, at a later date, seek alternative or additional protection orders in a State or Territory court. This may include, but would not be limited to emergency situations or in the course of federal family violence order breach proceedings. State and Territory courts would not have jurisdiction to issue or amend a federal family violence order, but may assist the parties before them by issuing a family violence order, under local laws. A family violence order however (or any condition thereof) that is inconsistent with a federal family violence order (or any condition thereof) would be invalid to the extent of the inconsistency. This would mean in many cases that a family violence order would lack utility. It would also create enforcement challenges for police, particularly where multiple orders would need to be compared in order for a police officer to determine which conditions of which orders they may lawfully enforce. For this reason, together with the requirement in new paragraph 68AC(6)(c) that a court must not issue a federal family violence order where there is a family violence order in force in relation to the same matter, new subsection 68NB(2) is intended to safeguard against circumstances arising in which a person has both a federal family violence order and a family violence order directed against the same individual, unless it is clear that multiple orders can operate concurrently.

[…]

New subsection 68NB(2) would not give a State or Territory court power to vary a federal family violence order. State and Territory courts and police have consistently advised that it is preferable that a court would replace a federal family violence order with a family violence order in circumstances where new protections are required. This is due both to the relative familiarity that State and Territory agencies have with local family violence orders, and the practical challenges that varying federal family violence orders would have created for State and Territory courts in terms of ensuring that varied orders are served on the parties and are made in the standard form federal family violence order template, which State and Territory court IT systems would not be able to readily accommodate.[73]

Proposed section 68NC sets out a number of requirements and provisions of the Family Law Act that would not apply to a state or territory court exercising the power to revoke or suspend a FFVO. According to the Explanatory Memorandum, section 68NC is intended to ‘simplify the process for a State or Territory court exercising jurisdiction under section 68NB, noting that any decision to revoke or suspend a FFVO would be ancillary to a decision to issue or vary a family violence order which would be the primary matter at hand’.[74]

The Human Rights Committee, in its initial report, commented on this provision and in particular on proposed paragraph 68NC(b) which provides that any provision that would otherwise make the best interests of the child the paramount consideration, would not apply to a court exercising the power to revoke or suspend a FFVO under new section 68NB.[75]  

The Explanatory Memorandum states that paragraph 68NC(b) is intended to clarify that the best interests of the child is not the paramount consideration in decisions to revoke or suspend a federal family violence order under section 68NB. However, the best interests of the child would be a relevant matter that the court would need to take into consideration under new subsection 68NB(2).[76]

The Human Rights Committee noted that this measure may limit the right of the child to have his or her best interests taken as a primary consideration in all actions or decisions that concern them. It also noted that the statement of compatibility does not identify that this measure may limit rights and as such, no compatibility assessment has been provided. The Committee considered further information is required to assess the human rights implications of this measure, and therefore sought the Minister's advice.[77]

The Attorney-General, in response, advised that the objective being pursued by the measure, is to simplify the process for state or territory courts in exercising jurisdiction under proposed section 68NB and encourage the exercise of this jurisdiction.[78] The Attorney-General stated:

[…] it is anticipated that if the court were required to consider the best interests of the child as the paramount consideration when revoking or suspending a federal family violence order, it would be less inclined to exercise this jurisdiction due to the added complexity involved with this consideration.[79]

The Attorney-General noted that this complexity may impede the ability of courts to construct family violence orders rapidly and appropriately. The Attorney-General further stated:

[…] under use of proposed section 68NB may result in inconsistency between state and territory family violence orders and federal family violence orders, with the former invalid and unenforceable to the extent of direct inconsistency with the latter.[80]

The Attorney-General explained that resolving inconsistencies between orders and ensuring that orders are clear and enforceable supports the protection of children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence.[81]

Regarding proportionality, the Attorney-General noted that the Bill contains safeguards against the making of inconsistent federal and state or territory orders which supports the protections of the rights of the child in respect of whom the order is made.[82]

In response to the Attorney-General’s explanation, the Committee acknowledged that encouragement of use of the provision is an important objective and could constitute a legitimate objective for the purposes of international human rights law. However, in the Committee’s view, ‘questions remain as to whether this specific measure is necessary and addresses a pressing or substantial concern’.[83]

The Committee report states:

[…] it is not clear whether the courts are reluctant to exercise their jurisdiction due to the complexity of considering the best interests of the child and the extent to which this reluctance could cause delay in proceedings and place victims of family violence at risk of harm. Without further information in relation to this, the Committee is unable to conclude that the measure is rationally connected to the stated objective. As regards proportionality, while the committee notes that the best interests of the child would be an important consideration, this safeguard alone may be insufficient to protect the right of the child to have his or her best interests taken as a primary consideration.[84]

FFVOs in relation to parties to a marriage

Part XIV of the Family Law Act deals with declarations and injunctions made by a court in relation to marital relationships. Items 33–42 of Schedule 1 make amendments to Part XIV to accommodate new provisions providing for FFVOs.

The amended Part XIV is to be renamed ‘Orders, declarations and injunctions in relation to parties to a marriage’.[85]

Item 36 inserts new Division 2 entitled ‘Federal family violence orders in relation to parties to a marriage’ into Part XIV. The Division deals with FFVOs in relation to parties to a marriage and closely resembles the equivalent provisions to do with making of FFVOs in relation to children. For the sake of brevity and to avoid duplication the Bills Digest provides only a short summary of new Division 2.

For a FFVO in relation to a party to a marriage, proposed section 113AB provides that either party to the marriage may apply to a listed court for a FFVO in relation to the other party where both parties are involved in proceedings relating to the marital relationship.

Proposed section 113AC provides that a listed court may make FFVOs in proceedings relating to a marital relationship. The order may provide for the personal protection of a party to the marriage (the protected person) and must be directed against the other party to the marriage.

A listed court may make an FFVO on application or of its own motion.[86]

Under proposed subsection 113AC(4) the listed court must be satisfied with the following three matters in order to make a FFVO:

• firstly, it must consider the FFVO appropriate in the circumstances
• secondly, it 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 and
• thirdly, it must be satisfied that there is no family violence order in force for the protection of the protected person and directed against the other party to the marriage As already noted, a family violence order is distinct from a FFVO in that it is made by a state or territory court. In satisfying itself on this matter the court should inspect any record, database or register that contains relevant information about family violence orders and is maintained by a government agency.[87] 

Proposed subsection 113AC(6) provides a listed court with the power to make FFVOs on the terms it considers appropriate in the circumstances. The terms, directed at the person to whom the order is made against include but are not limited to any of the following:

• prohibiting family violence towards the protected person
• prohibiting the person’s contact with a protected person
• prohibiting the person’s ability to go to specified locations or within a specified distance of a protected person
• prohibiting the person from attempting to locate the protected person
• requiring the person to leave a certain place under certain circumstances
• any other term that the court considers reasonably necessary to ensure the personal protection of the protected person.

Proposed subsection 113AC(7) sets out the matters a court must take into account when making a FFVO and deciding its terms. These are divided into a primary consideration and additional considerations and the court is required to give greater weight to the primary consideration.[88]

The primary consideration is the safety and welfare of the protected person, including the need to protect the person from being subjected to family violence.

The non-exhaustive list of additional considerations which a court must take into account if it considers them relevant include:

• any criminal history of the person against whom the order is directed
• whether that person has been charged with any criminal offences
• any previous violent conduct of that person towards the protected person and
• any other matter.

Proposed sections 113AD, 113AE and 113AF set out other administrative obligations on the listed court in relation to the making of FFVOs. These are drafted in identical terms to obligations on the court when making FFVOs in relation to children.[89]

Proposed section 113AG creates an offence of breaching a FFVO made in relation to parties to a marriage. It is drafted in the same terms as the offence for breach of a FFVO in relation to children.[90]

Proposed section 113AI provides a listed court with the power to vary, revoke or suspend a FFVO made under new section 113AC. It is drafted in the same terms as the equivalent provision allowing for variation, revocation or suspension of a FFVO in relation to children.[91]

Other administrative obligations are set out in proposed sections 113AJ, 113AK and 113AL and include requirements to give reasons for decisions, to provide copies of documents, to provide for the service of variation and provide details of timeframes of when variations, revocations and suspensions are in force. These provisions largely replicate equivalent requirements in relation to the making of FFVOs in relation to children.[92]

Section 114 of the Family Law Act deals with injunctions in relation to parties to a marriage, including the power of the court to grant personal protection injunctions. Item 39 would insert proposed subsections 114(1A), (1B), (1C) and (1D) which address the limit on the power of a listed court in relation to the granting of personal protection injunctions where there is family violence. The new provisions are the equivalent of proposed subsections 68B(1A), 68B(1B), 68B(1C) and 68B(1D).[93]

There are also new provisions dealing with the relationship between FFVOs in relation to parties to a marriage and injunctions for personal protection under the Family Law Act, and state and territory family violence orders. For example, proposed section 114AB(1) provides that the new Division 2 establishing FFVOs is not intended to exclude or limit the operation of a law of a state or territory that is:

• capable of operating concurrently with that Division and
• prescribed by the Regulations.

Proposed section 114AC would allow state and territory courts with jurisdiction under Part XIV of the Family Law Act, to revoke or suspend a FFVO in proceedings to make or vary a state or territory family violence order. There are certain limits on this power:

• the power would be limited to proceedings in a state or territory court to make or a vary a family violence order that is:
  • protecting the same person protected by the FFVO and
  • is directed to the same person against whom the FFVO is directed
• the court may revoke a FFVO only when making a final family violence order or making a final variation of a family violence order. The court may suspend a FFVO only when making an interim family violence order or an interim variation of a family violence order[94]
• in exercising this power, the state or territory court must have regard to:
  • whether the FFVO is adequate or is appropriate in the circumstances, and
• the purposes of this Division.[95]

Note that this power in proposed section 114AC relates to revoking and suspending a FFVO. It does not include the power to vary a FFVO.

Concluding comments

The Bill contains technical amendments aimed at establishing criminally enforceable federal family violence orders. The amendments would appear to be the Government’s second attempt to introduce criminal consequences for breaches of protection arrangements under the Family Law Act and are drafted in a more detailed and thorough way than the previously rescinded 2017 amendments. The NDVOS, the scheme under which family violence orders are mutually recognised and enforced across jurisdictions, is more developed than in 2017, suggesting there is greater chance of successful interaction across the various federal, state and territory jurisdictions.

In the context of the wider debate about family law and family violence, the Bill is technically complex, and there remains uncertainty about how the measures will operate in practice. While many stakeholders support the intent of the Bill, their submissions to the Senate Committee inquiry into the Bill also raise a number of concerns, particularly in relation to operational and procedural matters; a common concern being the demand the measures may create on the already stretched resources of the Family Courts.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.