7.1
This chapter provides a brief overview of state and territory family violence orders, the relevance of family violence and family violence orders to family law proceedings and details the evidence provided to the committee in relation to the following aspects of how family violence orders work in practice:
false allegations of family violence;
enforcement of family violence orders;
7.2
This chapter also examines:
consistency between family law and family violence orders;
training of the family law profession.
7.3
The chapter concludes by examining the measures that are currently being developed to address some of these issues, existing recommendations from recent reports and whether more needs to be done.
7.4
The committee notes that there has been a significant divergence in the evidence provided regarding the availability and use of family violence orders for parties subject to family breakdown. The perspectives differ depending on whether someone is alleged to be the perpetrator of the violence, or the victim. Perspectives also differ between those individual submitters who have experienced the interaction of the state and territory family violence jurisdictions and the family law courts first hand and those that practice in these jurisdictions.
7.5
As discussed in Chapter 2, allegations of family violence present in the majority of matters that reach the court, with one survey finding that over 85 per cent (85.3 per cent) of respondents reported allegations of emotional abuse and 53.7 per cent reported allegations of physical violence. The Australian Women Against Violence Alliance (AWAVA) stated that nearly 70 per cent of cases brought before the family courts involve family violence.
Brief overview of family violence orders
State and territory legislative schemes
7.6
All Australian states and territories have legislation that provides for the making of civil protection orders for the protection of individuals subjected or exposed to family violence. Although the names of these orders vary between jurisdictions (see Table 7.1 below), the way in which they operate is very similar.
Table 7.1: Family Violence Orders in Australian states and territories
|
|
|
|
|
Australian Capital Territory
|
Family Violence Act 2016
|
Family Violence Order
|
|
New South Wales
|
Crimes (Domestic and Personal Violence) Act 2007
|
Apprehended Domestic Violence Order
|
|
Northern Territory
|
Domestic and Family Violence Act 2007
|
Domestic Violence Order
|
|
Queensland
|
Domestic and Family Violence Protection Act 2012
|
Domestic Violence Order
|
|
South Australia
|
Intervention Orders (Prevention of Abuse) Act 2009
|
Intervention Order
|
|
Tasmania
|
Family Violence Act 2004
|
Family Violence Order
|
|
Victoria
|
Family Violence Protection Act 2008
|
Family Violence Intervention Order
|
|
Western Australia
|
Restraining Orders Act 1997
|
Family Violence Restraining Order
|
7.7
This chapter uses the term 'family violence orders' to refer collectively to the civil protection orders issued under state and territory laws for the protections of individuals subjected to family violence. This is consistent with the usage of that term in the Family Law Act 1975 (Family Law Act).
7.8
While expressed differently in each jurisdiction, the primary aim of these schemes is to ensure the safety of the victim. However, the schemes also aim to:
prevent or reduce the occurrence of domestic and family violence;
reduce children's exposure to domestic and family violence; and
promote the accountability of perpetrators of domestic and family violence for their actions.
7.9
The 2015 Interim Report of the Family Law Council to the Attorney-General, Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (Family Law Council 2015 Report), summarised how these schemes operate:
In most jurisdictions, the 'aggrieved person' who fears for their safety, or a police officer or a representative chosen by them or approved by the court, may apply [to the court] for the order. In some circumstances and in some jurisdictions, a police officer may be obliged to make an application with or without the consent of the aggrieved person.
7.10
In addition, in some jurisdictions the police may issue an order in their own right without court approval. The Family Law Council 2015 Report continued:
A court may grant a family violence protection order where there are reasonable grounds for believing that an individual will commit a family violence offence if there is no order in place. As a family violence protection order is a civil order, the court must apply the civil standard of proof in considering these matters … The type of conduct or threatened conduct that may provide grounds for a family violence protection order is relatively similar across all jurisdictions and may extend beyond physical violence and damage to property to emotional and economic abuse and other forms of intimidation.
7.11
Family violence orders may be issued as interim or final orders:
Each statute provides a number of considerations to guide the court in deciding whether to make a final or interim order. Typical of these is a requirement that the court give consideration (or in some cases 'paramount' consideration) to the safety of the affected person and any children who have been subjected to the violence. Some jurisdictions also require the court to consider the parties' accommodation needs, in particular the accommodation needs of the victim and any children affected by the violence.
…
Once made, an order will stay in place for a period of time specified by the court, for the maximum period allowed, or until the order is altered or revoked …
7.12
The courts have broad powers to put in place measures for the protection of the affected person. For example, the respondent may be prevented from:
entering a property where the protected person resides;
committing an act of family violence;
locating, following or contacting the protected person;
coming within a certain distance of the protected person; and/or
intentionally damaging, or threatening to damage, the protected persons property.
7.13
In terms of penalties, the Family Law Council 2015 Report stated:
Although family violence protection orders are civil orders, criminal penalties apply to their breach in all jurisdictions. The consequences for breaching a family violence protection order vary across jurisdictions but can include fines or imprisonment. The conduct amounting to the breach of an order may also constitute a separate criminal offence, such as stalking, in addition to the breach of the order.
7.14
Mr Shane Bedfell, Men's Worker, Family Advocacy and Support Service Family Violence Practitioner at the Melbourne Registry, No to Violence provided evidence that sometimes there is a misunderstanding as to the nature of these orders:
Intervention orders are all around safety … It's only when you breach them that they become criminal. So once I explain that to men, they say: 'That makes sense. My partner must be fearful of something.' ... I think men take it as a criminal offence. It's only a criminal offence if you breach it.
National recognition of family violence orders
7.15
On 25 November 2017, the National Domestic Violence Order Scheme (NDVO Scheme) commenced. The NDVO Scheme aims to better protect victims and their families by ensuring that all family violence orders that are issued in an Australian state or territory after 25 November 2017 are automatically nationally recognised and enforceable across Australia. Prior to the NDVO Scheme commencing, family violence orders only applied in the jurisdiction in which they were issued, unless the protected person applied to register the family violence order in another state or territory of Australia. As a result of this scheme, a family violence order issued in one state or territory is recognised and can be enforced by police in all other states and territories of Australia, as if the order had been issued in the enforcing jurisdiction.
7.16
Where a family violence order was in existence prior to 25 November 2017, it can become nationally recognised by applying to a court. Local courts across Australia can also amend a nationally recognised family violence order regardless of where it was issued.
Family violence orders and the Family Law Act
7.17
Key provisions in the Family Law Act relating to family violence, as well as avenues through which evidence of family violence and family violence orders can be brought before the court, are set out below.
7.18
Family violence is broadly defined to mean '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 include:
deprivation of liberty; and
Parenting matters
7.19
Before a person can apply to the court for a parenting order, they are required to make a genuine effort to resolve the dispute by family dispute resolution. As will be discussed in greater detail in Chapter 12, the Family Law Act provides that a court must not hear an application for an order in relation to a child unless the applicant files what is referred to as a Section 60I certificate issued by a family dispute resolution practitioner. However, this requirement for a Section 60I certificate does not apply where the court is satisfied that there are reasonable grounds to believe that there has been, or there is a risk of family violence by one of the parties to the proceedings.
7.20
For parenting proceedings before a family court, the Family Law Act sets out principles for conducting child‑related proceedings. Principal 3 provides that proceedings are to be conducted in a way that will safeguard the child concerned from being subjected or exposed to abuse, neglect or family violence and safeguard the parties to the proceedings against family violence. The Family Law Act sets out general duties to assist the court to give effect to the principles for conducting child-related proceedings. These include asking each party to the proceedings:
(i)
whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii)
whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence.
7.21
The court must then, inter alia, decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily.
7.22
When a parenting application is before the court, the Family Law Act provides that when deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. The court is required to consider a list of matters in determining what is in the child's best interest. The Act sets out two primary considerations:
the benefit to the child of having a meaningful relationship with both of the child's parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
7.23
Of these, the court is required to give greater weight to the need to protect the child from harm, including family violence.
7.24
There are 14 additional considerations the court must turn its mind to in determining a child's best interest. Of particular relevance are:
any family violence involving the child or a member of the child's family; and
if a family violence order applies, or has applied, to the child or a member of the child's family—any relevant inferences that can be drawn from the order, taking into account the following:
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order; and
any other relevant matter.
7.25
Parties to proceedings under the Family Law Act are obliged to inform the court of relevant family violence orders placed on a party to the proceeding. A person who is not a party to the proceedings who is aware of an order may also inform the court of the order.
7.26
The court, in considering what parenting order to make, must ensure that the order is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence. This requirement applies to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration.
7.27
When making a parenting order in relation to a child, the court is required to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child (the concept of equal shared parental responsibility is discussed in detail in Chapter 8). However, this presumption does not apply where there are reasonable grounds to believe that a parent (or a person who lives with a parent) of the child has engaged in abuse of the child or family violence.
7.28
Subdivision D of Division 8 of Part VII of the Family Law Act sets out the requirements where an interested person in the proceedings makes an allegation of child abuse and/or family violence. An interested party includes a party to the proceeding, an independent children's lawyer or any other person prescribed by the regulations. Where an interested person alleges that there has been or is a risk of family violence by one of the parties to the proceedings, the person must file a notice in the prescribed form. The form is prescribed under Rule 2.04D of the Family Law Rules and is known as the Notice of Child Abuse, Family Violence or Risk of Family Violence. Where the Notice is filed in a matter that is ongoing (that is not an application for consent orders), the Rule requires that the person must file an affidavit or affidavits setting out the evidence on which the allegations in the notice are based.
7.29
Where a notice is filed that alleges that there has been or there is a risk of abuse or family violence and that this is a relevant consideration in whether the court should make the order requested, the court must as soon as practicable after the notice is filed consider what interim or procedural orders (if any) should be made to:
(iii)
enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(iv)
to protect the child or any of the parties to the proceedings.
7.30
The court is required to deal with the issues raised by the allegation as expeditiously as possible. This includes whether orders should be made to obtain documents or information from state and territory agencies in relation to the allegation and whether an order or injunctions should be made for the welfare of a child.
7.31
Division 11 of Part VII explicitly deals with family violence. The purposes of this Division are:
to resolve inconsistencies between family violence orders and specified Family Law Act orders allowing persons to spend time with a child;
to ensure that those Family Law Act orders do not expose people to family violence; and
to achieve the objects and principles of Part VII.
7.32
Under this Division, if a court makes an order or injunction concerning when a person can spend time with a child that is inconsistent with an existing family violence order then the court must, inter alia, specify in the order or injunction that it is inconsistent with an existing family violence order and explain the order or injunction to the applicant and respondent, and if the following people are not the applicant and respondent – the person against whom the family violence order is directed and the person protected by the family violence order. A copy of the order or injunction is also to be provided to those persons, as well as the state or territory court that last made or varied the existing family violence order, the police and child welfare authorities in the jurisdiction in which the person protected by the family violence order resides. To the extent that the order or injunction is inconsistent with the family violence order, the family violence order is invalid.
7.33
Where a specified Family Law Act order is already in place and proceedings are commenced in a state or territory court to make or vary a family violence order, a state or territory court with jurisdiction under this Part may revive, vary, suspend (or discharge when the family violence order is a final, rather than interim, order) a specified Family Law Act order where the state or territory court has before it information that was not before the court that made the Family Law Act order or injunction.
Property matters
7.34
The provisions in the Family Law Act dealing with the alteration of property interests between parties do not specifically refer to family violence as being a relevant consideration. However, the decision of Marriage of Kennon has resulted in family violence being relevant to the contributions of the parties. This was discussed in further detail in Part 10.8 of the National Domestic and Family Violence Bench Book:
Sections 79 and 90SM [which go to the alteration of property interests] do not specify domestic and family violence as a factor to be taken into account by the court when considering an appropriate property order. Rather, judicial officers are guided by case law. The leading authority is the 1997 decision, Marriage of Kennon [1997] FamCA 27 in which the majority stated that where there is a course of violent conduct by one party towards another during the marriage which is demonstrated to have had a significant adverse impact on that party's contribution to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions pursuant to section 79. The court emphasised that this principle would only apply in exceptional cases.
It has been noted that the Kennon test sets a high threshold for recognition of domestic and family violence in the context of property settlement proceedings as parties alleging violence must prove, on the balance of probabilities, that the violence had a discernible impact on their capacity to contribute to the marriage, or to the arduousness of making such contributions. Further, the Kennon test does not address the potential relevance of domestic and family violence to the prospective factors set out in section 75(2). The family courts have increasingly recognised the relevance of domestic and family violence in property settlement proceedings; however the Kennon test is difficult to satisfy.
7.35
Discussion of whether the case of Kennon provides an adequate framework for the consideration of family violence in property matters is canvassed in Chapter 10.
Cross-examination in family law hearings
7.36
Where a parenting or property matter is set down for hearing and one or both of the parties is self‑represented, and the self-represented party intends to cross‑examine the evidence of the other party and there is an allegation of family violence between those parties, section 102NA of the Family Law Act will apply.
7.37
Section 102NA provides for mandatory protections for parties in cases where any of the following are satisfied:
(v)
either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(vi)
a family violence order (other than an interim order) applies to both parties;
(vii)
an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(viii)
the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;
7.38
Subsection (2) provides that the self-represented party must not personally cross-examine the other party and that the cross‑examination must be conducted by a legal practitioner acting on their behalf.
7.39
Where the above circumstances are not satisfied and a person is not prevented from personally cross‑examining the other party, the court must ensure that there are appropriate protections for the party who is the alleged victim of the family violence when the victim is being cross-examined.
How does the Family Court obtain evidence of family violence?
7.40
The primary source of evidence in family law proceedings is that given by the parties in their affidavits and supporting materials. However, the Australian Bar Association noted that there are a range of resources and avenues provided to the court with respect to state and territory child protection and family violence matters, including:
9.1
Notices of Risk which must be filed in all parenting matters by each parent and party - these Notices put squarely before the court whether any party has any concerns that a child is at risk of abuse, neglect, abuse or violence, or is in a household where family violence may exist;
9.2
the requirement to file copies of family violence orders in parenting proceedings;
9.3
the availability of s.69ZW Orders, which can require the provision of information held by child protection authorities to the courts making parenting decisions;
9.4
the availability of s.91B Orders, wherein the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare. When such a request is met, the child welfare officer (in reality, the proper officer of the Department of Child Safety, or however so named in each jurisdiction) becomes a party with all the rights, duties and liabilities of a party;
9.5
the capacity to request a file from other courts making decisions in such matters, and to admit into evidence in parenting decisions, transcripts and findings made in child protection and family violence proceedings [see section 69ZX];
9.6
the National Family Violence Bench Book: a resource which assists in the education and training of judicial officers so as to promote best practice and improve consistency in judicial decision-making and court experiences for victims in cases involving domestic and family violence across Australia;
9.7
the Courts' joint Family Violence Best Practice Principles.
Family violence orders in practice
7.41
As discussed in Chapter 3, there has been a divergence of views in the evidence provided to the committee in relation to family violence.
7.42
Many victims of family violence raised concerns about the difficulty of obtaining a family violence order—one submitter expressed 'shock that the system does not take DVOs seriously, especially for emotional abuse. Society believes that DVOs are easy to obtain but they are not'.
7.43
The Victims of Crime Assistance League Inc NSW (VOCAL) agreed:
There is a misconception within the wider community that [Apprehended Violence Orders (AVOs)] are easy to obtain, and that women only seek AVO's to give them advantage in Family Court. In our extensive experience with clients seeking police assistance, unless there is clear evidence of a physical assault, it is extremely difficult for a domestic violence victim to get assistance from police, let alone protection from State courts.
7.44
Evidence on the difficulty of obtaining orders was provided in respect to both female and male victims of family violence. For example, the committee received evidence from individuals and organisations suggesting that men who had been the victim of domestic violence often had difficulty in obtaining police assistance to obtain a family violence order:
I had a guy that was really on the edge. He felt like he was losing his mind. His executive functioning was offline, big time. He was being affected by domestic violence. He went to the police, and they kind of made a joke of him, because he's obviously a guy. Then they said: 'You have no evidence, mate. Sorry.' So he walked away.
7.45
A confidential submitter also described his experience of seeking assistance from police to obtain a family violence order against his ex-wife. He had video evidence of the assault and seven witnesses to other incidents but the police failed to act and told him to obtain a private order.
7.46
Evidence was also received that police were reticent to issue a family violence order or commence an investigation into an allegation of family violence when family law proceedings were in train or they considered it to be a family law matters:
According to the National Child Protection Alliance (NCPA) in association with the National Council for Children Post Separation, it is commonplace for Police and State Territory Departments of Families and Community Services to refuse to intervene when child abuse is reported to them when they know the particular matter is being heard in the Family Court.
… many of our clients have been turned away from police stations when attempting to provide evidence of repeated and unwanted, stalking and intimidation, despite having contemporaneous records and previous police event numbers. Often police advice [sic] 'it's a family law issue' and are reluctant to take any further action other than to suggest 'talk to a solicitor'. Yet in the Family Law system victims are often questioned as to why there is no evidence in the form of police reports.
7.48
Other victims claimed that they were not able to raise allegations of family violence in the family court for fear of losing their children or not being believed:
Lawyers counsel their clients not to raise family violence or not to admit to family violence because in either case 'they may lose the children'. These lawyers may do this because they have experienced family violence being handled poorly in court.
7.49
Domestic Violence NSW reported experiences from their members that:
… the protective parent is reluctant to raise family violence or sexual abuse in the family court because they are at risk of being depicted as the hostile parent or accused of parental alienation. Further, in a number of instances, DVNSW has heard directly from victims/survivors where the family court has not taken AVOs, criminal records or disclosures by the victims/survivors (including the children) into consideration when this evidence is presented and the offending parent has gained access to the children through family court orders. Disturbingly, in some circumstances, even when DFV or sexual abuse has been raised, the offending parent has gained full parental custody.
7.50
No to Violence explained:
There is an often-broadcast belief that mothers in the family law court fabricate allegations of family violence to help their family law cases. However, the evidence shows that this is not the case and that women are disinclined to raise family violence allegations due to a fear of not being believed. The research shows that false allegations are much rarer than the issue of victim survivors not reporting abuse and the minimisation and denial of abuse by men who use violence.
7.51
Where some submitters and witnesses raised allegations of family violence, they expressed the belief that they were not believed or that the information was not appropriately taken into account by the judge:
The courts do not take Domestic Violence seriously. They do not listen. They claim to be acting in the best interest and only considering the needs of the children and their safety…well I'm failing to understand this statement as they have failed to protect the children in this matter …
… the courts are causing normal people severe psychological damage and are emotionally traumatising families. I never would of thought that when I left my kids father for being abusive, a drug user and for sexually assaulting me that the federal [circuit] court … would over throw a genuine victim of domestic violence our protection order and then enable that abuser to re-abuse us all LEGALLY. Let that sink in. Welcome to my life. Where I wake up and feel humiliated, disempowered, fearful, traumatised, helpless and now financially struggling every day. I cry myself to sleep and wake up lying to myself telling myself I got this when I'm being treated as a criminal in a family court. I have to remind myself I didn't break any laws. Yet I am spoken down to, I have no voice, I've been discriminated against and the worst thing is I'm paying! Paying thousands to be treated this way …
7.52
One submitter stated that in her case the judge did not give any consideration to the family violence order:
The Judge walked into the Courtroom and from the first minute she started to attack myself (the applicant) and my Solicitor. She did not come down on my Ex-Husband or his Legal Team for submitting the paperwork extremely late, she would not let my Solicitor plead our case (as Applicants) as to why we were in court. The Judge was mortified that there was a DV on my Ex-Husband and would not let my Solicitor explain the reason as to why there was a DV ... We believed that no matter what we said, the Judge had decided prior to entering the courtroom, her decision.
7.53
On the other hand, a number of individual submitters and witnesses recounted their experience of an ex‑partner obtaining a family violence order against them based on allegations that they maintain were false as a means to influence the outcome of the family law matter. For example:
[Domestic Violence Orders (DVOs)] are an important protection for vulnerable parties. However some parties abuse the system. For example in my case, false allegations were made and this gave my ex-wife material advantage. In some instances DVOs seem to be used as an avenue for venting a person's hurt and anger; it can also be a way controlling the other partner, making the DVO is in itself a weapon of 'abuse'.
7.54
Concerns were also raised about the ease with which family violence orders could be obtained, the consequential effects of such orders on family law proceedings—particularly on the ability of the alleged perpetrator to see their child pending final orders, and the lack of recourse when the subject of the order argues that the order was based on false allegations.
7.55
The committee heard evidence about the impact of a family violence order on the ability of a parent to maintain a relationship with their child:
The interim DVO required me to move out of the house, not contact my ex‑wife and have no contact with the children. After about 2 months I was permitted to see the children in the presence of supervisors proposed by my ex-wife.
7.56
When asked during an in camera hearing about whether there was any other evidence apart from his ex-wife's statement considered when a family violence order was made against him, one submitter stated: '[n]o, none at all. They took her statement, and I was basically just told that if I were to fight it would be put on longer. I would just have to accept it'.
7.57
Similarly, another submitter told the committee the judge in the Family Court proceedings accepted the family violence order issued against him without query:
It [the family violence order] was never mentioned. My affidavit, which provided evidence against this, was completely ignored. It clearly influenced the further handling of the case by the judge, or the judges, because I appealed to the Family Court as well, and I was consistently dealt with … contempt, I have to say-significant contempt. I was silenced. I was not heard. I was actually denied my legal, natural justice rights. I allege that it was all based on starting this settlement and then divorce case with a false domestic violence claim. That apparently impacts massively on how a judge perceives the parties.
7.58
As to whether the current law is adequate in relation to the making and use of family violence orders, Former Justice of the Family Court, Professor Richard Chisholm AM, submitted:
There is no doubt a risk that family violence orders can sometimes be made in circumstances where they are not justified. The seriousness of this risk is related to the resources available to the magistrates (and to legal aid): if their resources were more adequate, they could no doubt deal with these cases more thoroughly, and have ex parte orders in force only for a very short time before the respondent would have a chance to set them aside. However if the law were to be changed to make it harder for applicants to obtain family violence orders, there could be an unacceptable risk that the many people who really are in danger may go without protection.
Family violence orders are of real value to many who suffer from or fear violence. They provide a degree of immediate protection in the period before the issues can be fully explored. Unfortunately there is a great deal of family violence and abuse, especially in the circumstances of family breakup, and many people are at risk of death or injury. Although there are problems with family violence orders, their value in providing needed protection should not be underestimated.
Consent without admission
7.59
Concerns were also expressed to the committee about the ability of a respondent to consent to a family violence order without admitting to the facts alleged. The committee heard evidence from a number of individual submitters that this was often recommended by their legal representative. For example:
My lawyers instructed me to accept the IVO without admission to avoid being cross-examined against my daughter as they felt it would make the relationship worse. There is nothing more sickening than standing in front of a Magistrate and agreeing not to harm your daughter when it was never something I did or would do.
…
The solicitor advised me to accept the DVO without admission because it wasn’t important and because she said I could not afford to fight two court cases (being federal court and dvo court). Once my case got to federal court after many months and ridiculous costs paid to the solicitor, the apparent 'not important' DVO was suddenly the most important item.
7.60
One submitter informed the committee that, '[u]nder instruction from a lawyer, I "Consented without admission", on advice that it would very hard to fight a Police Application DVO'.
7.61
Another submitter informed the committee that they were given advice from the magistrate to consent without admission, despite having clear evidence that the allegations were unfounded:
I was told by the magistrate before proceedings began that the test for domestic violence matters was set very low. I was told that I should enter into an undertaking without admission to avoid the findings being used against me in the [Federal Circuit Court of Australia (Federal Circuit Court)] matter.
7.62
Another submitter expressed their belief that the whole concept of consent without admission to family violence orders is flawed:
Lawyers always advise men to accept 'consent without admission' orders, even if the men are completely innocent of the allegations in a DVO, because it’s much too expensive to contest the orders.
Thousands of innocent and non-violent men across Australia are being forced to leave their homes and families every year because there is no practical and affordable way for them to prove their innocence.
Everything about this process is completely and totally unfair. If a man is innocent then the justice system should protect him and should allow him to clear his name quickly and without cost.
It is completely contrary to natural justice that a man is forced to accept the consequences of a 'consent without admission' order simply because the alternative - defending himself against the false allegations – is not possible without spending immense sums on lawyers.
7.63
The Australian Brotherhood of Fathers (ABF) has suggested that this option of consenting to the order without admission should be removed. In their view the respondent should either agree to an undertaking or the application for the order should be tested on the evidence. The ABF stated that 'no party should be coerced to concede to Orders that are grossly impactful and that have possible criminal ramifications'. They note their experience that, ‘[i]n heat of the moment, we're finding men who are poorly advised will consent without admission and not fully understand the impact that has on their life.’
7.64
The ABF also discussed how they consider that the consent without admission option fails to hold perpetrators to account:
Our belief is that consenting without admission is allowing perpetrators to get away with the act ... If police do not charge you with an offence, you can sail off into the rest of your life without any finding of facts against you and continue on to potentially commit the same acts against other people.
7.65
The ABF concluded that they are ‘not sure consenting without admission is actually, apart from getting people out of the court system quickly, addressing the issue of domestic violence in our society.’
False allegations of family violence
Incidence
7.66
The committee received evidence from a number of submitters and witnesses on the incidence of false allegations of family violence. The Men's Rights Agency submitted that:
Domestic violence is the tool used to gain an advantage in separation. An easily gained domestic violence order will precipitate the removal of a partner from the home, ensure they have no contact with their children. Police suspect one in four DV allegations are false, magistrates suspect only 5% are genuine. Unfortunately, these statistics are several years old. [We] would recommend another round of research be directed towards various police stations, and magistrates' courts to establish up to date findings. No doubt the suggestion will be greeted with howls of derision and claims that it is not necessary, but there is enough evidence from individual police, judges, magistrates to support our claims that a large percentage of DV allegations are false, used purely to gain an advantage in separation and family law actions.
At least if there is an awareness and punishment for false claims then there would be more services, and funds available for genuine victims of domestic violence.
7.67
The submission from Single Parenting is Killing our Kids referred to a United Kingdom (UK) study which found high rates of false allegations:
Professor Tommy McKay did a study of 107 children in UK family law contact and residence cases and found that in 70 % of cases the allegations of physical and sexual abuse were deemed false and in 24 % of cases the allegation was unsubstantiated leaving a very small percentage of abuse cases upheld. It was noted that, 'that false allegations increase substantially as cases become more contentious'.
7.68
A few submissions also referred to the 2013 views of retired Justice David Collier reported in the Sydney Morning Herald, that allegations of child sexual abuse were being increasingly invented by mothers to stop fathers from seeing their children:
When you have heard the evidence, you realise that this is a person who's so determined to win that he or she will say anything. I'm satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child's life.
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In contrast, the Queensland Law Society (QLS) stated in its submission:
… we note the lack of empirical evidence to support the notion that false allegations of family violence are regularly made in an attempt to gain an advantage in family law proceedings. In contrast, extensive research confirms the difficulties victims of domestic and family violence encounter when disclosing their experience to courts; including fear of not being believed and fear that disclosure will increase the risk of violence to them or their children.
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In its submission, the Domestic Violence Action Centre, Queensland (DVAC) set out a number of Australian and international articles which refer to studies that have disproved that false allegations of violence are prevalent in the family law system.
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Women's Safety NSW noted that:
It must be remembered, however, that the vast majority of women experiencing domestic and family violence do not report that violence to police. In its 2016 Personal Safety Survey, the Australian Bureau of Statistics (ABS) reported that only around 31% of female victims of physical assault and 13% of female victims of sexual assault actually report to police.
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In its submission, the ABF advised that for men, the rate of no reporting was likely to be higher:
Men are 2 to 3 times more likely than women to have never told anybody about experiencing partner violence. 54.1% of males who have experienced current partner violence have never told anybody about it, along with 20.9% of males who have experienced previous partner violence.
An advantage in family law proceedings?
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There was also conflicting evidence on whether family violence orders provided some form of 'advantage' to the protected persons in family law proceeding. In its submission, AWAVA expressed the view that:
The family law system as it operates at present does not place the safety of victims/survivors and their children at its heart. Cultural perceptions surround family law that indicate that the disclosure of experiences of domestic and family violence will be to the detriment of a victim/survivor. The system itself does not do enough to prove otherwise …
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AWAVA referred to the following evidence in support of this claim:
The most recent study conducted by Francia, Millear and Sharman looked at child custody decisions following parental separation where family violence was present. They interviewed 40 parents who experienced family violence (36 female and 4 male). Results revealed that the experience of engaging with the Australian family law system caused considerable anxiety and distress for these separated parents. Francia [et al] highlighted how mothers were labelled as 'alienating' for disclosing family violence. They also reported that disclosures of family violence were not treated seriously. Francia [et al] write: 'They [parents] felt powerless, isolated, and believed their children were at risk of falling through jurisdictional gaps.' Their study has also highlighted that various professionals within the family law system showed a concerning lack of knowledge around family violence. Lastly, study participants reported that they were coerced by professionals not to disclose experiences of family violence. Francia [et al] write that 'mothers and fathers, often under considerable time pressure, were threatened, or warned, that if they did raise concerns about the other parent, that they would lose care of their child or children'.
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Researcher Ms Zoe Rathus AM argued the belief, by some, that family violence orders are regularly applied for as a tactic to gain a more favourable result in family law parenting matters was inaccurate and misunderstood the very limited relevance these orders are given in family courts:
In my experience in talking to women for research purposes, my community engagement work and reading published family law judgments the family courts have little regard to the existence of a domestic violence order in terms of the parenting orders they will make. The mere existence of a DVO is certainly not seen as evidence that there was serious domestic violence nor that any domestic violence that has occurred should be relevant to parenting order. The fact that one or both parents sought a DVO may be considered, but the relevant and effect of that evidence will vary widely depending on the facts.
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The Australian Bar Association agreed that these orders are just one piece of evidence to be considered but are not determinative:
If it is suggested that the existence of such orders determines the family law outcome, then such a view is, respectfully, wrong. Parenting proceedings involve (as stated) an unwieldly 42 different steps, with family violence featuring in few of the 42. Further, property proceedings only concern family violence where a party can make out that relevant family violence occurred, and, importantly, that the family violence made that party's contributions more onerous, or impacted on a party's capacity to make contributions or has resulted in ongoing impairment to health or earning capacity.
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However, some submitters put forward a different view with the Men's Rights Agency submitting:
I do not believe it is unreasonable to suggest the change to the family law act to elevate the issue of domestic violence has clearly encouraged more people to use the domestic violence legislation for their benefit, when making an application to the family courts. For if one has a DVO one doesn't need to participate in mediation; one cannot now be cross examined in court by the self-represented litigant trying to get to the truth; one parent can remove the other parent, usually the father from their children's lives; one can claim a greater percentage of property settlement based on alleged DV; one can claim tenancy or residential status over a respondent's rental unit or house they own; emergency housing can be provided; residential status can be granted to immigrants based on just counsellor's reports and one certainly can present oneself to the courts as a victim, needing protection, consideration, empathy and a more sympathetic outcome. One doesn't have to present any proof, just be convincing in your claim to be a victim of domestic violence. The fear you claim doesn't even have to be shown as reasonable anymore!
Impact on relationship with children
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While the Australian Bar Association stated that family violence orders are not determinative in the final decision, they may have an impact on interim orders:
There can however be a problem where the existence of a family violence order causes a Judge to act cautiously on an interim basis. Such caution is appropriate until allegations can be tested through cross-examination at a final hearing. The difficulty arises because delays in the courts mean that the cautious approach stays in place until the evidence can be tested much later at trial.
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The Law Council of Australia (Law Council) also discussed the potential impact of family violence orders at interim hearings, stating:
An interim hearing in the family law courts is an abridged process where cross-examination of parties seldom occurs and where findings about disputed facts can rarely be made. Thus, on the strength of the Family Violence Order, a [Family Law Act] Judge may, on an interim basis, determine to act cautiously (balancing risk) and constrain the child's time with the alleged perpetrator (say by supervision, or day-time time only and in a public place), until the matters of family violence can be properly tested at a [Family Law Act] trial. The delays between that interim [Family Law Act] hearing and the final trial can be lengthy. If the allegations are not ultimately made out at final [Family Law Act] trial, then the child's and accused parent's time has been constrained between interim hearing (where the Judge determined to act cautiously), and final trial (where the evidence is tested). The burdens of delay between interim hearing and final hearing in the family law courts (which in some instances may be measured in years) is keenly made out in this example - the months or years where the parent-child relationship has been so constrained can never be restored.
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The impact of delays in the court system is also discussed in Chapter 6.
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Justice for Broken Families provided the following information detailing the potential impact on the relationship between the accused and their child/ren, particularly where it was demonstrated that the family violence order was based on a false allegation:
To put it quite simply, it appears undeniable that after a false allegation of abuse is made against an otherwise qualified parent, the effects upon the relationship between the child and accused parent are significant and severe. If the claim ends up being unsubstantiated, the accuser has lost out on little, while the child and accused parent have suffered intrusive investigations and a deteriorated connection. Both the child and the falsely accused parent lose precious time with each other, and the image of the accused parent may become tainted in an impressionable child's mind. The accused faces the penalty of the alleged crime before any determination of guilt or innocence has even been made. Within the atmosphere of a custody battle in which a false allegation of abuse has been entered to influence the proceedings, neither the welfare of the child, nor the innocence of the accused, can be realized.
Coupled with the loss of the child, an innocent parent wrongly accused of the horrific crime of abuse also faces heavy financial burdens and loss of reputation. The accused must cover the costs of retaining representation for both custody litigation and possibly criminal prosecution.
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Professor Augusto Zimmerman also discussed the impact of false allegations, noting they can tear entire families apart. He quoted from the work of Dr Adam Blanch, a clinical psychologist working in Melbourne:
The more a single parent can restrict the other parent's access to the children the more financial support they receive from the alienated parent and the government, and a restraining order even when based on allegations that have been unsubstantiated is a great weapon in the fight for primary custody and restricted access.
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As discussed above, a number of individual submitters advised the committee that the family violence order resulted in them not being able to see their child/ren for a considerable period of time. Women's Legal Service Queensland, however, provided a contrasting view:
In our experience, the Magistrates Courts, largely, balance the need to protect victims of family violence with the requirements of procedural fairness, natural justice and are loathed to infringe upon the rights of individuals (respondents) unless there is cogent evidence of such a need.
Child contact is largely maintained with respondents to domestic violence orders, because of the common inclusion in domestic violence orders of 'the family law exception' to enable parents to maintain their relationships with children. The family law exception does not have standardised wording, but is often framed as, 'This condition does not apply to the extent that is necessary for the parties to attend an agreed conference, counselling, mediation session or when having contact with a child as set out in writing between the parties or in compliance with an order of a Court or when having contact authorised by a representative of the Department of Communities (Child Safety) with a child'.
Perceptions in the legal profession
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The NSW Bar Association referred the committee to a 2015 research project indicating that:
… the belief that women make false or exaggerated claims of family violence to obtain tactical advantage in family law proceedings persists among members of the legal professional and the general community despite having no foundation in research.
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In response to a question on notice about what could be done to dispel that perception, the NSW Bar Association advised:
Promoting respectful, informed and inclusive discussions about the prevalence of family violence and the operation of the family law system - including the role of a specialist, standalone Family Court- is an important step towards dispelling such perceptions and making known the facts.
Perjury
What is Perjury?
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The issue of perjury was a common discussion point in submissions and in the public hearings. Perjury is a criminal offence under Commonwealth, state and territory law and prosecution for this offence would take place in a state or territory court. A person commits the offence of perjury if they give false testimony on a matter material to a judicial proceeding. Perjury in family law proceedings is punishable by imprisonment for up to five years.
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In terms of how a matter of perjury would be dealt with in family law proceedings, Mr Iain Anderson, Deputy Secretary, Legal Services and Families Group, Attorney-General's Department (AGD), explained:
If someone believes that false evidence has been given, they can raise that matter with the court. The court can refer the matter to the [Australian] Federal Police for investigation. The family courts themselves don't independently investigate criminal allegations, so they would refer that to the police.
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In addition to criminal proceedings for perjury, the family court has other powers available to them to assist in dealing with false evidence:
In any litigation, there is the risk that a party will provide false evidence with a view to misdirecting the decision maker. Family law is no different.
Like all Courts, judicial officers in the Family Courts have inherent powers in respect of the proceedings they are determining, including the power to issue a charge that a litigant is in contempt of court for swearing a false oath or otherwise misleading the Court, or referring them to the Director of Public Prosecutions for consideration as to a criminal prosecution for perjury and related criminal offences. The Act, and the Rules of Court, meanwhile establish duties (e.g. of full and frank disclosure) which litigants must abide, and enable any findings as to failure in compliance to be followed by more generous findings in favour of the innocent party (at discretion of the judicial officer). The Act has always reposed in a Judge the ability to order costs. These powers have existed since the enaction [sic] of the Family Law Act. Further, in financial proceedings, non-compliance by a litigant with duties enables a judicial officer to adopt a robust approach when completing the [alteration of property interests] decision making pathway. These powers need not, it is submitted, be augmented.
Prosecutions for perjury in the family law courts
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Many submissions raised concerns with the absence of a penalty when the other party to the proceedings deliberately made false allegations or provided false evidence to the court. While this was raised primarily in the context of false allegations of family violence, it was also discussed as a relevant issue in financial disclosure in property proceedings.
Throughout the family law proceedings, my ex-wife continued to make false allegations against me without once producing a witness or evidence to support her claims. She was actively caught out in several lies and untruths at trial, which were completely ignored by the court, even when evidence existed of her dishonesty.
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While many submitters were convinced that their ex-partners had indeed committed perjury during the family court proceeding, a number of submitters highlighted that simply because there are conflicting recollections of past events between the parties does not automatically suggest that one party has perjured themselves:
It is common for parties to provide different or conflicting evidence of past events. The reasons for this are varied and there may be no intention to deceive the court. Recollections of past events may be influenced by a person's interests and perspective, psychological state or imperfect memory. Judicial officers are well practiced at assessing the veracity of evidence in these circumstances and may prefer one party's evidence to another. This, however, does not constitute perjury.
Evidence is thoroughly tested in family law proceedings and each party has the opportunity to put their version of events to the court and to make submissions on that evidence. Judges are also able to intervene and ask questions of parties and, if additional information or clarification is required.
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Similarly, Mr Anderson advised:
Concern about perjury is quite widespread but as a matter of fact seems to occur relatively rarely …
… the court would need to be satisfied that there was sufficient evidence that someone appeared to have in fact perjured themselves. It will often be the case in a family law proceeding that there will be disputed views as to the facts. That in itself doesn't mean that someone has in fact lied under oath.
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In answer to a question on notice asking whether there had been any cases of perjury in the family law court that have been successfully prosecuted, AGD advised:
The Commonwealth Director of Public Prosecutions (CDPP) has advised the department that, from 1 January 2014 to 31 December 2019, no briefs of evidence were referred to the CDPP by the AFP or any other investigative agency with respect to family law related perjury offences. Accordingly, no prosecutions were conducted by the CDPP during this period for family law related perjury matters.
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Former Chief Justice of the Family Court of Australia (Family Court), the Hon Diana Bryant AO QC, described her experience of practising in and presiding over family law matters in the court:
Many studies in the area of accuracy of memory and descriptions of significant events, show that memory, even with the best will in the world, is fragile and people can have different perceptions of what has occurred during the same incident. Unsurprisingly, this happens frequently in family law disputes, perhaps because in addition there is an emotional overlay to the perceptions and neither party is an objective observer. It is not uncommon for judges to note that the various competing versions of what is alleged to have occurred appear to be so much at odds that it is as if they are discussing entirely separate events. This is one of the reasons that judges are often reluctant to find that one party has deliberately mislead the court, and where it is necessary to make a finding about what actually occurred, judges will often refer to a 'preference' for the evidence of one or another.
That is entirely consistent with my long experience. There are cases in which it can be established that one party has deliberately lied to the court. Most often that occurs in property matters but not exclusively. However, my own experience is that in parenting matters, generally the parties do not deliberately set out to misrepresent the facts but believe that their version of the events is the correct one.
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In his evidence to the committee, former Family Court Judge Professor the Hon. Nahum Mushin AM added this observation:
I do not accept the sometimes ventured view that there are frequent circumstances in which evidence, particularly of family violence and child abuse, is 'made up' or 'invented'. Making such an allegation publicly is usually profoundly difficult for a litigant. In my experience, there are circumstances in which a victim of violence is not prepared to allege violence for fear of being disbelieved.
However, there are circumstances in which witnesses exaggerate allegations of violence as distinct from suggesting behaviour which has never occurred. That is not necessarily lying under oath. The human mind has the propensity to come to believe things as a result of the stressful nature of relationship breakdown. Part of a Judge’s role is to determine the truth.
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The QLS explained the particular challenges that present in matters involving the giving of evidence in family law matters:
In relation to matters involving domestic and family violence … victims commonly face considerable difficulty when disclosing their experience to courts; including fear of not being believed and fear that disclosure will increase risk of violence to them or their children. The nature of domestic and family violence is such that, commonly, the only evidence available is that of the victim or perpetrator. Again, a lack of corroborative evidence or conflicting versions in these circumstances in no way constitutes perjury.
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Similarly, the Hon Diana Bryant stated:
In family violence matters in particular, to the best of my recollection I have rarely, if ever come across a matter in which I've been satisfied that one party has totally fabricated an allegation of family violence. Where facts are disputed, and found not to be accurate, more often they will be either an exaggeration of what occurred, or a failure to include relevant matters which might reflect upon their own part in this process. It is not absolute, but rarely occurs that the other party when faced with an allegation will totally deny the violence alleged. Again, more often it will be a different account of what occurred and often a suggestion that the other party had some involvement, rather than whether it occurred at all. That is not to say that judges may find one version more compelling than another, but it does suggest that the situation is not always black and white.
Increased penalties for perjury?
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Notwithstanding this, there was a strong sentiment expressed in individual submissions that perjury and false allegations need to be taken more seriously by the courts. For example, it was suggested that the committee should:
Introduce serious and severe penalties for false and/or vexatious domestic violence claims, particularly when used to gain an upper hand in the family law system. Give the federal court powers to make such findings and issue penalties accordingly. Where false allegations are made and subsequently withdrawn in local court, and it can be seen as likely the applicant was doing so to gain an advantage in the federal court on a family law matter rather than protection for themselves or their family, similar penalties should also apply with the respondent being eligible to seek reparations/compensation for false or vexatious claims.
[Federal Circuit Court] be given powers and expected to overturn domestic violence orders or applications where the allegations are proven to be false or used to gain advantage in a family law matter, with all records of the order and application to be removed completely and retrospectively.
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When asked what was the one thing the submitter would change in the family law system if they could, they answered:
I would suggest that, as much as I'm aware that DVO orders can be falsely and maliciously used, I also know that there are cases where they are required. There also needs to be a system of equal justice with domestic violence jurisdiction and system that does not automatically presume that the father is the perpetrator and is guilty. We need better investigation strategies to gain evidence to make impartial, correct judgements [sic] for both parties.
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However, a number of submitters acknowledged that the issues surrounding the use of family violence orders and false allegations in family law matters were complex and that potential solutions were difficult to identify:
I realise that to make any necessary reforms to the laws, we first need to have suggestions on how the laws could be made fairer to all parties ... To be honest, I've thought about it long and hard and, no matter how you change the laws, I struggle to see how you can easily stop a person who decides they want to continue to tell blatant lies, and abuse the system or not comply with court orders that they sign themselves, without the other party spending a lot of time and money and having a lot of emotional stress to attempt to be treated fairly.
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Despite the difficulty, it has been submitted that an appropriate balance between the rights of the alleged victim to be protected and the rights of an innocent alleged perpetrator to not be falsely accused needs to be found:
… I believe very strongly that victims of domestic violence need to be protected. But I also think there's the other side, where sometimes it is used by some parties to their advantage when false allegations are made. It makes it a very difficult issue for family lawyers. I don't know whether I have the solution, except I do think that factor has to be recognised. I know I was subject to that, and several other people I know have been subject to that. I think society very strongly and in some ways quite rightly advocates for the victim, but I think there needs to be some advocating for the people who are accused falsely as well, and maybe some consequences for making false accusations, which I feel perhaps doesn't occur at this stage.
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Some submitters and witnesses have suggested that where a person is found to have knowingly made a false allegation of family violence or abuse, they should be punished by losing the custody of the child.
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The Family Law Practitioners' Association of Queensland (FLPAQ) disagreed, noting that there are already mechanisms by which a litigant's conduct can be taken into account and reflected in a property settlement:
… the Full Court of the Family Court has already made clear that there can be a direct correlation between a litigant's conduct, and the ultimate property settlement outcome – the requirement that any Order be just and equitable is congruent with the weighing of the degree of truthfulness of a litigant and their compliance with duties ...
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The FLPAQ continued:
In parenting cases, however, the dynamic is different – the Court is tasked with making orders which achieve a child's best interests. That a child has a parent who is prepared to mislead a Court is not directly relevant to the parenting arrangements which ought be implemented for that child. The reality is that the needs of the child may mean that even a parent who has, for example, perjured themselves ought to continue to provide for those needs.
If the proposition of the Committee is ultimately that the conduct of a parent in litigation ought automatically be reflected in parenting outcomes, and have compulsorily imposed direct impact on orders that a Court would have made, but for that conduct, then it is submitted that this would be to elevate the punitive effect of proceedings, and ameliorate the stated objective of Section 60B (to achieve the best interests of children), and cannot be countenanced.
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Evidence was also provided to the committee regarding how family courts historically considered false allegations and the benefits of this approach. Mr Anthony Smith, a retired barrister and contributor to the Men's Rights Agency submission, noted that between 1976 and 1995 the Family Court conducted interim hearings with cross-examination which operated as a 'type of clearing house':
Thus, spurious, frivolous, vexatious, piffling and even false claims usually by one parent against the other in respect of the care or lack of capacity to care, guide and nurture in a proper and responsible manner for the children of the marriage, would be dealt with in a quasi-summary fashion. These hearings would normally be over in half a day sometimes less.
What happened therein, more often than not, was that a judicial determination was pronounced about the credit of the maker of the allegations and/or the denier. Absurd and preposterous contentions were given short shrift by the judge. An adverse finding of credit against a parent resisting the other's application for access, as it was then called, invariably resulted in an order for access and more often than not put an end there and then to costly litigation.
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There was some discussion at hearings about why these interim hearings no longer happened. For example, Mr Smith informed the committee that:
Before 1995, as I said, the interim proceeding served a very useful function, because what they did was permit counsel to engage in a little mini trial, if you like, right at the beginning, on the first return date when allegations might have been flying around from both sides. A finding was made by judges on credit, frequently, at that very early stage, and the judge would often say at the end: 'I have made these findings. The parties should go and consider their positions.' I can tell you—if experience counts for anything, and I know it sounds anecdotal—80 per cent of the things would resolve there and then, finally, without any further nonsense going on, or within a few weeks of that sort of hearing. Why we went from interim hearings and that sort of contested stuff to: 'We can't deal with these things on an interim basis. They have to go here. They have to go to report. There has to be an independent children's lawyer. There has to be this. There has to be that.' The reason for that was not because the system wasn't working but because there weren't enough judges and court time to deal with it.
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In respect of reform regarding interim hearings, the committee notes the establishment of the COVID-19 list for expediting cases that have been exacerbated by COVID-19 restrictions and is discussed further in Chapter 8.
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In addition, the ABF has recommended that the Australian Government:
Create a process … legislative amendments made to the Family Law Act 1975 (Cth) to require a relevant court to determine domestic violence allegations at the earliest practicable opportunity to urgently assess claims of Domestic Violence in Family Court matters with 14 days of filing … to prevent unfounded allegations from becoming entrenched:
a.
With adequate court resources and hearing time allocated to fully examine the claims and the evidence relied upon;
b.
With proof of balance of probabilities;
c.
With actions in perjury and cost orders for claims found to be intentionally false or misleading on the balance of probabilities;
d.
With an emphasis to urgently re-establish withheld access to children where safety risks are unfounded or low;
e.
No exparte orders permitted where children are involved.
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The 2017 Parliamentary Inquiry into A better family law system to support and protect those affected by Family Violence (2017 Family Violence Report) contained significant discussion and recommendations around family violence and the family law system. A number of these were also directed towards the early identification of family violence in family law proceedings, including:
the development of a national family violence risk assessment tool to be used to conduct a risk assessment for family violence upon a matter being filed at a family court registry;
improved case management of family law matters involving family violence, including triaging, to ensure resolution in an expedited time frame; and
a legislative requirement that family violence allegations be determined by the court at the earliest practicable opportunity after filing proceedings.
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The 2017 Family Violence Report, as part of its recommendation for improved case management of family law matters involving family violence issues, also suggested the development of a stronger regime of penalties including cost orders to respond to abuse of process, perjury and non-compliance with court orders.
Enforcement of family violence orders
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The committee heard from victims who did have family violence orders for protection who expressed disappointment at the lack of action when they were breached. The National Child Protection Alliance noted that mothers:
… are also aware that such abusers use the Family Courts processes to continue to maintain control over them and their children, often accompanied by stalking and harassment in their homes, outside schools, and on the streets and they have little, if any, protection. DVOs etc. are mere pieces of paper and are no deterrent to a determined violent abuser. In some instances, DVOs have been breached on numerous occasions and reported to the police but no action has been taken.
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It was also Women's Legal Service NSW experience that police regularly fail to take action on breaches of family law orders, impacting the willingness of the protected person to report breaches again to the police. Justice for Children Australia suggested that:
… the state systems are often lacking in integrity and rigor when it comes to protecting children and other victims of family violence with countless examples of police failing to deal properly with allegations of sexual abuse or assault, breaches of AVOs, and other crimes.
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The National Council of Single Mothers and their Children provided the following extract of a women's experiences:
The bullying and shaming of women need to stop. Police need to take action in regard to breaches. 28 breaches reported and not one charge as they excused his behaviour.
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The DVAC also provided the following case study:
I even tried to park as far as I could from my ex-husband during contact exchange. It says in my DVO that he is to stay away from me and not come close by 10 meters. However, this is difficult to enforce, [because] if I park away from him, he will follow me. I reported this to police and they said that I am the one that needs to change my behaviour. (Client W)
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The committee has also heard of instances where men have been coerced or tricked into breaching a family violence order. For example, the ABF outlined the following hypothetical experience of a father under a family violence order:
Conditions of the order tell John he must be of good behaviour toward Mary and only go to their home with her permission. John sends Mary a text message after leaving the police station requesting if he can collect his work clothes and his work car and Mary agrees. When John arrives at their home Mary calls police and tells them that John is being threatening and she is scared. Police attend the family home and arrest John for breaching the temporary protection order …
… a 5 year protection order is made with conditions that stop him from going to the family home and stop him from contacting Mary unless it's about their children.
When John contacts Mary to arrange access to their children Mary agrees but demands that he collect the children from the family home. John attends the family home as arranged and Mary calls the police and tells them that he is at the home, is being aggressive and she is in fear. Police attend the family home and arrest John.
Current reforms
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As discussed in Chapter 2, the Australian Government has a number of reforms underway in the family law system. A number of these have relevance to the issues raised above, particularly in relation to ensuring that allegations of family violence are before the court for consideration, having these allegations considered and dealt with expeditiously; and support for parties in matters where family violence is alleged, including assisting parties to navigate both the federal and state/territory legal systems.
Triaging of matters with family violence allegations
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Of particular relevance is the three year screening and triage pilot currently being undertaken in the Federal Court of Australia (Federal Court), which involves the screening of parenting matters for family safety risks at the point of filing. This will ensure matters where family violence is alleged are identified at an early stage of proceedings. These matters will then be triaged to an appropriate pathway based on the identified level of risk. A specialist list has been created to hear matters assessed as involving a high risk of family violence. The committee was advised that 'high-risk cases would be intensively case managed. There would be an offer of immediate assistance, safety planning and other such measures. Moderate-risk cases would be, again, offered a safety plan and alerted to the support services that might be available. Low‑risk cases might be assessed as suitable for family dispute resolution. For the high-risk cases, the pilot will establish a specialist family violence list, which will be overseen by a judge and intensively case managed, with a view to having a matter dealt with quickly.'
Ban on direct cross-examination
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As discussed above, the Australian Government passed legislation in December 2018 which protects victims of family violence from being directly cross‑examined by, or having to directly cross-examine, their perpetrators in family law proceedings. In practice, this requires the court to make a determination in advance of a hearing whether the ban on direct cross‑examination does or should apply, bringing the issue of family violence to the forefront of the court's consideration. Where it does apply, the Government has provided funding to Legal Aid Commissions to legally represent any self‑represented parties subject to the ban on direct cross-examination. This funding applies to both the alleged victim and the alleged perpetrator if they do not have private legal representation.
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These changes were welcomed by a number of submitters.
Family Advocacy and Support Service (FASS)
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The Family Advocacy and Support Service (FASS) has been raised in Chapter 2 and discussed in detail in Chapter 11. As part of the FASS's duty lawyer and social services support for families affected by family violence with matters before the family law courts, the FASS now includes a dedicated men's support worker to provide access to appropriate support services for both alleged male perpetrators and male victims of family violence involved in family law proceedings.
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In addition, one of the key functions of the FASS is 'assisting families to transition between, and manage matters across, the Commonwealth family law, state family violence and state child protection jurisdictions'. As Commissioner Faulks noted in the Australian Law Reform Commission Report, Family law for the Future—An inquiry into the Family Law System (ALRC 2019 Report):
The lawyers engaged in FASS (as the review of the pilot scheme showed), had the great advantage of being involved in both state and federal jurisdictions. They were shown in the review to be able to smooth the pathways, to reduce the confusion and to increase the provision of needed information to the litigants.
Standard of proof
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There has been minimal discussion around whether the standard of proof for the making of family orders is appropriate. A number of individual submitters (as discussed earlier in this chapter) have suggested that there should be more evidence provided to the court that corroborates the statements of the person seeking the order before an order is made. However, the majority of organisations supported the current civil standard of balance of probabilities:
Whilst there are differences between the state and territory family violence systems, the common underpinning is that personal protection is the priority and that if allegations are in dispute, they can be tested at hearing with the balance of probabilities being the standard of proof, unless there are criminal prosecutions arising from the conduct in which case in the criminal prosecution the standard of proof is beyond reasonable doubt. These respective standards of proof are considered appropriate by National Legal Aid (NLA) given the need to protect victims from risk of harm, and the risk to liberty of alleged perpetrators in criminal law proceedings, and ramifications arising in family law proceedings.
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Similarly, the Family Law Practitioners' Association of Western Australia submitted:
… that there is no basis for an alteration to the standard of proof. That is to say, that to uphold the need to protect children, the balance of probabilities in relation to domestic and parental abuse must remain.
To change that standard to 'without reasonable doubt', as is utilised in the criminal jurisdiction, completely disregards the safety of children and victims of domestic violence and as such, it should not be supported.
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The North Australian Aboriginal Family Legal Service highlighted that beyond reasonable doubt is an inappropriate standard for civil family violence order matters, especially when considering the purpose of these orders:
The evidential standard of proof for DVOs is the balance of probabilities, and this is considered an appropriate standard to meet. The alternate evidential standard of proof used in criminal matters of 'beyond all reasonable doubt', would be inappropriate for DVO matters. The balance of probabilities standard is appropriate, when considering the purpose of the DVO Act, which is to protect vulnerable persons. Consequently, increasing the threshold for DVOs would make it unnecessarily difficult for our clients to access protection and likely discourage them from making applications.
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The Hon Diana Bryant considered that when looking at the standard of proof for family violence orders, it was also important to separate the nature of proceedings for protective orders in magistrates courts from proceedings in family courts which relate to the best interests of children and advised:
In the [Magistrates Court] the focus is on protecting the victim in the immediacy of a family breakdown and its associated aftermath …
But I think it is important to see the two issues as being different, that is the making of a protective order which is for the immediate protection of parties and children, and limited in time, and then the long-term issue dealt with by family courts of what order should be made in the best interest of the children having regard to the need for their protection from risk of harm. Naturally there is a need for a court dealing with parenting matters to have knowledge of protective orders in the proceedings and to take them into account, but they will not always be definitive, particularly as some orders are made by consent without any admission of the facts alleged. Family courts must have the ability to independently examine the facts when the opportunity arises.
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With regard to what standard of proof should be applied to family violence orders, the Hon Diana Bryant concluded:
It follows from what I have said that it is important that magistrates courts are able to make protective orders (which should be seen as protective rather than criminal) without the higher standard of proof associated with criminal proceedings such as assault.
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Professor Mushin put forward a similar view, stating 'I support the maintenance of the legal evidentiary standard of the balance of probabilities. There is no reason to change the onus of proof'.
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The standard of proof does not apply where family violence orders are made by consent. In these cases there has been no final judicial determination and the consent has been given without any admission of the facts alleged. Professor Chisholm stated:
It is a common outcome that family violence orders are made by consent and without admission. Because in such cases there has been no judicial examination of the facts, and because I understand the proceedings are relatively swift and inexpensive, it is possible that some applications have little or no justification. For example, the person seeking protection may be mistaken in believing there is a risk, or may have brought the proceedings because of legal advice that such a step is routine. Another possibility is that the application might have been made in bad faith, in order to harm the respondent or take some strategic advantage in later family court proceedings. I don't know of any good evidence about the frequency of such situations, but ideally the legal system should be designed to cope with this range of possibilities, in addition to situations where the applicant is indeed at risk.
Consistency between family law and family violence orders.
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Section 68R of the Family Law Act allows state and territory courts to revive, vary, revoke or discharge specified Family Law Act orders to resolve inconsistencies between family violence orders and Family Law Act orders allowing persons to spend time with a child. However, the committee heard that there may be a lack of knowledge of this provision or a reticence to exercise this power in some cases where state and territory judges issue family violence orders and a Family Law Act order is already in existence. For example, Caxton Legal Service noted that Magistrates in Queensland, outside of specialist domestic violence courts, rarely exercise jurisdiction under section 68R and express a reluctance to deal with family law matters as part of the domestic violence proceedings:
It has been the experience of our domestic violence duty lawyers that on the rare occasions that jurisdiction is exercised under s68R, outcomes can be inconsistent. At our domestic violence duty lawyer office we assisted a Respondent where parenting orders were suspended under section 68R on the basis of allegations revolving around derogatory comments made on social media by the Respondent. On the face of it there was an absence of evidence of risk to the children and similar issues had already been considered by the Federal Circuit Court only months prior.
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To address this issue, Caxton Legal Service suggested that:
One way to improve consistency would be to enshrine in legislation the obligation for Magistrates to provide reasons for their decisions, which refer to the matters required to be taken into consideration under section 68R, particularly the 'relevant considerations' outlined in section 68R(5).
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In at least two jurisdictions, Victoria and South Australia, the state legislation requires the state court making a family violence order to inquire about any relevant Family Law Act orders and then take such steps as is necessary so as to avoid inconsistencies between the two orders. Under the Family Violence Protection Act 2008 (Vic) the court is explicitly required to exercise its section 68R power to resolve any inconsistency.
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One submitter noted that there is currently no power for a magistrates court judicial officer to make changes to family law orders where one party has been convicted of a family violence offence but there are no family violence orders in place:
It is ridiculous that when a person is found guilty of domestic violence in a magistrates court, they have no jurisdiction over family court orders and in order to protect yourself and child you need to go back to family court who do not like a mother citing domestic violence.
Information sharing
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A key issue that has arisen in the evidence provided to the committee, particularly from organisations, has been the need for improved interaction and information sharing between family law courts and state and territory family violence and child protection jurisdictions. This would ensure that all relevant information concerning family violence and the risk to parties is available to the respective courts:
Due to the risk that family violence places on the safety and wellbeing of children and victims, we need to respond to the level of complexity that family violence adds to the Family Law process; and address the systemic gaps and issues to ensure that no further harm is experienced or compounded by the wider system. Better communication and integrated responses are needed between the family law system with child protection, police and hospital as well as specialized services to address the complexities faced by families.
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This issue was also identified in the ALRC 2019 Report. The ALRC noted that two of the major themes that had emerged from the previous 11 enquiries conducted between 2001–17 were that the family law system does not deal well with violence and there needed to be greater information sharing between the family courts and state and territory child protection jurisdictions. The ALRC considered that:
… the existing jurisdictional framework for the resolution of family law disputes does not provide an appropriate framework for the collaboration, coordination and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems.
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The QLS noted that they have:
… consistently advocated for improved interaction and information sharing between family law courts and state and territory child protection agencies, police and state health authorities, as a means of enhancing the capacity of family law courts to properly assess the risk of family violence.
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QLS suggested that the colocation of child support and police services within Family Law courts would be beneficial to parties to a family law dispute:
… [we support] initiatives announced by the Attorney-General's Department earlier this year, aimed at improving information sharing and co-ordination between family law, family violence and child protection systems. The announced funding will primarily be used to pilot a colocation model, whereby state and territory child protection and police officers are present in family court registries around Australia. Funding will also be provided for improving technology to facilitate information sharing between family law courts and state and territory child protection systems.
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Ms Catherine Gander, Convener, Eliminating Violence Against Women Action Group, Women's Electoral Lobby New South Wales, told the committee about the harms that can result where there is a lack of information sharing between courts:
The jurisdictional gap referred to, with its lack of relevant information flow, can and does place women and children at increased risk of harm through ill-informed parenting arrangements. Commonly unsafe interim parenting orders are made while the family law court seeks further information.
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Ms Gander continued:
… We would like a national information-sharing platform established immediately that includes information from the Domestic Violence Order Scheme, the state child protection agencies and the specialist domestic violence sector to provide the Family Court with the robust information needed to make safe family law court decisions ...
An information-sharing platform of this nature would stop women falling between these two systems. The first being the state systems of child protection and the state systems of domestic violence protection, and the second being the family law system that often starts with a blank page and is overly focused on shared parenting outcomes and not on the history of the perpetrator or the current risk they pose to the women and children.
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His Honour Justice Graeme Henson, Chief Magistrate, New South Wales, advised the committee that there is no lack of willingness on the part of state courts to share information between the state and federal courts, noting that there has been 'a long history of engagement with the family court in cross‑vesting of jurisdiction. There's no reason for that to change at all.' However, Justice Henson advised that the problems arise in relation to the incompatibility of information technology systems and resources:
To the best of my knowledge it represents an inability of computer systems to exchange electronic transfers of information. And of course the burden on the state system of providing documentation when, dare I say it, it's under-resourced is also one of the problems.
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Centacare Family and Relationship Services explained the impact of victims and children having to repeat the details of the abuse to multiple agencies and courts, and suggested that as part of the information sharing reforms consideration be given to requiring victims to provide their evidence once and for that to be used across all relevant forums:
When we talk about information sharing, one of the things that I think would be helpful for the victims that we work with is not having to repeat their story time and time again to numerous professionals and in numerous settings. From our perspective, a client might call us because they need assistance with domestic violence in their relationship, or they may have had police attend their property due to an incident and then they're referred into our service. In both of those cases the police might speak to them and we might speak to them, and then they'll go to a court setting and potentially have to provide evidence in that situation as well. They then have family law orders that start, and they have to repeat that information; they have to go to their lawyers. So there are a number of repetitions. Often in these cases child protection services become involved. There are a range of stakeholders that have similar information but don't share any of that and constantly ask children and victims of violence to continually repeat the story, and that can be really traumatic. That's part of what actually causes the ongoing harm.
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The ALRC further noted that due to the limited investigative powers of federal family courts, they are reliant on receiving information from state and territory courts and agencies about risks to families and children to inform the court's decision-making and better protect against risk. The ALRC therefore recommended the following reforms which could 'facilitate more timely and efficient responses to identifying and managing high risk families:'
the development and implementation of a national information sharing framework; and
the expansion of the National Domestic Violence Order Scheme to include family court orders and orders issued under state and territory child protection legislation.
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The 2017 Family Violence Report also contained similar recommendations directed towards better information sharing. A full list of the recommendations from this report is at Appendix 4.
Current reforms
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The Australian Government is progressing a number of measures to improve information sharing between federal and state/territory courts. These include:
Together with all State and Territory Governments, a commitment, through the Council of Attorneys-General, to developing an information sharing regime so that family violence, child protection and family law orders, judgments, transcripts and other relevant documentation are accessible at an early stage of investigations and court proceedings to support informed, efficient and effective decision-making in the best interests of children and families at risk of experiencing family violence or abuse.
$10.4 million provided over three years to co-locate state and territory officers, such as child protection practitioners and policing officials, in family law courts across Australia. This measure will increase the quality and timeliness of information shared between systems, helping to ensure courts have the right information to support decision-making that promotes the best possible outcomes for children and a court system that is responsive to safety risks.
Funding committed to consider how technology could assist with sharing information about family violence between the family law courts and the family violence and child protection systems.
Training of family law professionals
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The need for specialised training for judges and other professionals engaged in the domestic violence and family law jurisdictions was raised in submissions and oral evidence before the committee:
It is important to recognise that domestic violence is a specialised field with a wide knowledge base (both theoretical and practical). A knowledge and understanding of domestic violence is essential to being able to assist decision-making processes with and for families. Given the high statistics of families with family violence engaged with the family law system it is imperative that professionals in the judicial system are knowledgeable about the issues associated with DFV, what it looks like and the symptoms of trauma in order to be able to make accurate assessments and prioritize safety and wellbeing of children. Independent children's lawyers and court report writers and judges especially need the specialized knowledge or at the very least links to specialized knowledge through consultation and working closely with relevant agencies.
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Similarly, Ms Liz Snell, spokesperson for Women's Legal Services Australia advised:
There is limited understanding of family violence, trauma, cultural issues and disability amongst many professionals working in the system. This can lead to poor management of risks to the safety of children and women. We need comprehensive and ongoing training of all professionals working within the family law system—including family consultants, lawyers, judges and interpreters—in a range of issues, including family violence and trauma-informed practice, cultural competency, LGBTQ awareness and disability awareness.
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This issue has also been identified in a number of previous reports on family law. The ALRC 2019 report stated that the need for professional development opportunities for judicial officers in family law is well recognised and that judges are not legislatively required to have experience or knowledge relating to family violence. The ALRC also noted that there are currently no obligations on lawyers undertaking family law work to undertake any training or professional development in relation to family violence. As such, the ALRC recommended that:
relevant statutes should be amended to require that future appointments of all federal judicial officers exercising family law jurisdiction include consideration of the person's knowledge, experience, skills, and aptitude relevant to hearing family law cases, including cases involving family violence; and
the Law Council should work with state and territory regulatory bodies for legal practitioners to develop consistent requirements for legal practitioners undertaking family law work to complete annually at least one unit of continuing professional development relating to family violence.
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The 2017 Family Violence Report also recommended that the Australian Government develops a national and comprehensive professional development program for judicial officers from the family courts and from states and territory courts that preside over matters involving family violence, as well as a national, ongoing, comprehensive, and mandatory family violence training program for family law professionals, including court staff, family consultants, Independent Children's Lawyers, and family dispute resolution practitioners. The recommendations specified that both training programs were to include information on the nature and dynamics of family violence.
Current reforms
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The Australian Government provides funding for specific training and resources in family violence, such as the online National Domestic and Family Violence Bench Book and the funding of the National Judicial College of Australia to deliver family violence training to family law and other judges. Under the Fourth Action Plan of the National Plan to Reduce Violence against Women and their Children 2010-2022, the Government has also invested $26.2 million to continue the DV-alert training program. DV-alert provides free, nationally accredited training to build the capacity of health, allied health and community frontline workers to recognise, respond to and appropriately refer domestic and family violence. Frontline workers include legal professionals and court services.
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In addition, in the 2017–18 Budget, the Australian Government provided the Federal Court with additional resourcing to employ up to 16 family consultants and $180 000 over two years to improve the training available to these consultants. The funding has been used to develop new induction training and an advanced family violence training program for family consultants.
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The Council of Attorneys-General Family Violence Working Group is also identifying options for improving the family violence competency of professionals working in the family law and family violence systems. In 2019, the Council conducted a consultation process on options for improving the family violence competency of legal practitioners. A consultation paper was developed which sought feedback on family violence capabilities required by legal practitioners, and at which stage in their careers they should be addressed. The Group was to report back to the Council of Attorneys‑General in mid-2020.