Bills Digest No. 66,
2017–18
PDF version [330KB]
Mary Anne Neilsen
Law and Bills Digest Section
25
January 2018
Contents
Purpose of the Bill
Background
Reviews and inquiries
Exposure Draft Family Law Amendment
(Family Violence and Other Measures) Bill 2017
Other measures
Family Law Amendment (Financial
Agreements and Other Measures) Bill 2015
Committee consideration
Senate Legal and
Constitutional Affairs Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Part 1: Family law matters to be
resolved by state and territory courts
Exercise of family law jurisdiction
by children’s courts
Comment
Property jurisdiction of state and
territory courts
Comment
Short form judgements
Comment
Part 2: Strengthening the powers of
the courts to protect victims of family violence
Summary dismissal of unmeritorious
claims
Comment
Dispensing with explanations
regarding orders or injunctions to children
Time limits on orders issued by state
and territory courts
Comment
Offences for breaching injunctions
Comment
Concluding comments
Date introduced: 6
December 2017
House: Senate
Portfolio: Attorney-General
Commencement: Part
1, Part 3, and Division 1 of Part 2 in Schedule 1 commence the day after the
Act receives Royal Assent. Division 2 of Part 2 in Schedule 1 commences 12 months
after Royal Assent unless earlier by Proclamation.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at January 2018.
Purpose of
the Bill
The purpose of the Family Law Amendment (Family Violence
and Other Measures) Bill 2017 (the Bill) is to amend the Family Law Act 1975 to strengthen the powers of courts to protect victims of
family violence and facilitate the resolution of family law matters by state
and territory courts in certain situations.
Background
Recent political debate about family law has focused on
how the system has dealt with the complex problems of family violence.[1]
As various studies have indicated, families
with complex needs, including those related to violence, are the predominant clients
of the family law system.[2]
The Australian Parliament has already paid considerable
attention to proceedings relating to family violence in parenting under the Family
Law Act. Amendments in 2012 made under the Labor Government were
significant and intended to place family violence at the centre of parenting
cases.[3]
Under the Family Law Act judges now have two
primary considerations when assessing what is in the best interests of the
child:
- the
benefit to children of having a meaningful relationship with both of their
parents and
- the
need to protect them from physical or psychological harm, including being
subjected or exposed to violence.[4]
Furthermore, where there is a clash between these two
interests, the safety of children is to be prioritised over the benefits of a
meaningful relationship with both parents.[5]
The effect of these reforms is as yet unclear. However, as
former Chief Justice of the Family Court of Australia, Diana Bryant, has
frequently said, legislative amendment alone does not suffice and without
resources these reforms are inadequate.[6]
Reviews
and inquiries
The last ten years have seen a plethora of reviews and
inquiries into family law matters including the issue of family violence and
child abuse.
In one of the more recent inquiries the Coalition
Government tasked the Family Law Council to inquire into Families with
Complex Needs and the Intersection of the Family Law and Child Protection
Systems. This inquiry was a response to ‘the growing concerns about the
separation of the federal family law and state and territory child protection
and family violence systems and the risks to children’s safety associated with
this situation’.[7]
The inquiry reported in two stages. Its first interim report in 2015 focused on
the first two terms of reference that addressed ‘the prospect of having a streamlined,
coherent and integrated approach to improve the overall safety of families and
in particular children, while involved in the family law, child protection and
family violence jurisdictions’.[8]
It made six recommendations, a number of which have been taken up in the Bill. The
final report released in 2016 focussed on the remaining three terms of
reference and concentrated on ‘opportunities to enhance collaboration and
information sharing within the family law system as well as other support
services such as child protection, mental health, family violence, drug and
alcohol, Aboriginal and Torres Strait Islander and migrant services’.[9]
It made a further 22 recommendations, one of the more significant being that a
comprehensive review of Part VII of the Family Law Act, which guides the
resolution of children’s matters, is warranted.
Council considers that this process should be undertaken with
a view to ensuring child safety is prioritised in both decision-making and
advice-giving contexts, and to supporting efficient and expeditious
decision-making in light of the complex features of the contemporary client
base of the family courts.[10]
Another major review, conducted in 2009–10 by the
Australian and New South Wales Law Reform Commissions (the ALRC/NSWLRC report)
addressed the issue of inconsistencies in the interaction and application of
the Commonwealth and states regarding domestic violence, child protection,
sexual assault and family law.[11]
The Bill includes amendments based on recommendations made in the ALRC/NSWLRC
report.
There have been other recent reports and enquiries that have
also considered the need for changes to the Family Law Act and the broader
family law system. The Explanatory
Memorandum list includes the:
- Victorian
Royal Commission into Family Violence (2016) and
- Coronial
Inquest into the Death of Luke Batty (2015).[12]
The Council of Australian Governments (COAG) has also been
active. In recognition of the fact that a whole-of-government and community
response is required to address family violence, COAG established an Advisory
Panel on Reducing Violence against Women and their Children. The Panel delivered its final report to COAG on 1 April
2016.[13]
Exposure
Draft Family Law Amendment (Family Violence and Other Measures) Bill 2017
On 9 December 2016, the Government released the Exposure
Draft Family Law Amendment (Family Violence and Other Measures) Bill 2017 and a
related consultation paper.[14]
The Exposure Draft Bill was described as addressing recommendations of the
Family Law Council’s reports, the recommendations of the Victorian Family
Violence Royal Commission, and the Australian Law Reform Commission report on
family violence. Submissions on the Exposure Draft Bill and consultation paper are
available on the Attorney-General’s Department’s website.
The Exposure Draft, with some amendments, formed the basis
for the Bill introduced into Parliament on 6 December 2017.
Other
measures
The media release announcing the release of the Exposure Draft
Bill also referred to other measures being undertaken by the Turnbull
Government to improve the family law system and in response to family violence.
These measures include:
- the
work of COAG to establish a national domestic violence order scheme, under which
domestic violence orders are automatically recognised and enforceable in any state
or territory of Australia
- a
review of Part VII of the Family Law Act to be
conducted by the Australian Law Reform Commission, so
that matters involving at risk children can be dealt with more swiftly
- $350,000
for a new training package to improve judicial officers’ awareness and
understanding of family violence. The new training package will be delivered by
the National Judicial College of Australia and will provide judicial officers
with specialist training about the nature and dynamics of family violence, and
how these should be taken into account in matters involving family violence
- a
Commonwealth-funded National Domestic and Family Violence Bench Book to be
rolled out across Australia in 2017 and 2018.[15]
A further measure involving legislative change is the
proposal to establish a pilot Parenting Management Hearings scheme, a new forum
for resolving family law disputes between self-represented litigants. The
amending legislation, the Family Law Amendment (Parenting Management Hearings)
Bill 2017 is currently before the Parliament.[16]
While consideration of these measures is beyond the scope
of this Bills Digest, the Key issues and provisions section below makes
reference to some of them in the context of discussion of the Bill’s
provisions.
Family Law
Amendment (Financial Agreements and Other Measures) Bill 2015
Some of the amendments in the current Bill were also
included in the Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015 (the 2015 Bill) which was introduced into Parliament on 25 November
2015.[17]
That Bill lapsed at the dissolution of Parliament on 9 May 2016. The
consultation paper on the Exposure Draft Bill states that those amendments were
included in that draft to confirm the Government’s intention to reintroduce
them at the next opportunity.[18]
The Senate Legal and Constitutional Affairs Legislation Committee report on the
2015 Bill and relevant submissions are referred to in this Bills Digest.
Details of that inquiry are at the Committee homepage.[19]
Committee
consideration
Senate Legal and Constitutional Affairs Legislation Committee
The Bill has been referred to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and
report by 20 April 2018. Details of the inquiry are at the Committee homepage.[20]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing the Committee has not reported on the
Bill.
Policy
position of non-government parties/independents
At the time of writing, there appears to be no publicly
available comment on the Bill from non-government parties or independents.
Position of
major interest groups
At the time of writing, there appears to be no publicly
available comment on the Bill. However there were numerous submissions on the
Government’s consultation paper and Exposure Draft Bill from interested parties
including from key representatives of the legal profession and the courts, from
women’s and children’s advocacy bodies and from individuals. These submissions
are available on the Attorney-General’s Department website.
Many submitters gave in-principle support to many of the
amendments, although this support was often qualified with concerns raised
about the resourcing implications for state and territory courts.
The Bills Digest refers to these views under the Keys
issues and provisions heading.
Financial
implications
The Explanatory
Memorandum states that there are no immediate financial implications from
implementing these amendments.[21]
It also states that ‘the Australian Government is discussing with states and
territories any financial implications arising from prescribing state and
territory courts in subsequent Regulations’.[22]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[23]
Parliamentary
Joint Committee on Human Rights
At the time of
writing the Parliamentary Joint Committee on Human Rights had not reported on
the Bill.
Key issues
and provisions
Part 1:
Family law matters to be resolved by state and territory courts
Part 1 of Schedule 1 to the Bill proposes
amendments aimed at facilitating further involvement by state and territory
courts in family law matters. This is principally to allow issues involving a
family law matter to be heard in a single venue, rather than requiring parties
to negotiate different court systems for various aspects of their case.
Exercise of
family law jurisdiction by children’s courts
Decision-making in parenting cases is governed by Part VII
of the Family Law Act which is titled ‘Children’. This Part empowers the
family courts, and in defined circumstances, state and territory courts of
summary jurisdiction, to make orders about with whom a child will live, how
much time the child should spend with other people, and how often and the way
in which a child and parent should communicate with one another.[24]
Section 69J vests state and territory courts of ‘summary
jurisdiction’ with federal jurisdiction to make orders under Part VII of the Family
Law Act, including parenting orders. Section 69N limits this power to
circumstances where the parties consent to the orders being sought or where the
parties consent to the court of summary jurisdiction hearing and determining
the matter.
Magistrates’ courts and local courts will usually be
courts of summary jurisdiction.[25]
In some states and territories, children’s courts are also part of the
magistrates’ or local court and these courts most likely fall within the
definition of a ‘court of summary jurisdiction’, with the jurisdiction to make
parenting orders under section 69J of the Family Law Act.
However, as the Explanatory
Memorandum and the Family
Law Council 2015 report both note, uncertainty remains about whether this
jurisdiction extends to specialist children’s courts that are not part of a
magistrates’ court.[26]
In its first report (2015), the Family Law Council noted
that there are a number of potential benefits of enabling state and territory
children’s courts to exercise jurisdiction under the Family Law Act to
make parenting orders in certain circumstances:
In particular, there are significant potential benefits for
children where the matter is already before the children’s court and a parent
or kinship carer needs orders for (sole) parental responsibility to support their
care of the children. Enabling children’s court judicial officers to exercise Family
Law Act powers in this situation would mean that the parent or carer could
obtain parenting orders in the court with which they are familiar.[27]
The report continued:
Council believes there are circumstances where an interim
decision by a children’s court would be beneficial for families who need
parenting orders when a child protection matter has been finalised and the
children’s court (and the child protection department) is familiar with the
family’s circumstances. In Council’s view, children’s courts should be
supported to exercise jurisdiction under the Family Law Act in such
circumstances where appropriate.[28]
The Family Law Council therefore recommended that the Family
Law Act be amended to remove any doubt that children’s courts, no matter
how constituted, are able to make family law orders under Part VII of the Family
Law Act in the same circumstances that are currently applicable to courts
of summary jurisdiction.[29]
The Bill responds to this recommendation. In particular, item
6 would insert proposed section 69GA into the Family Law Act,
its effect being to expressly allow relevant state and territory courts, such
as children’s courts, to be prescribed by regulation as having the same family
law parenting jurisdiction as that held by state and territory courts of
summary jurisdiction. Such proceedings would be referred to in the Act as
‘section 69GA proceedings’ (item 1). Before prescribing courts the
Minister must be satisfied that the relevant State or Territory Minister has
been consulted (proposed subsection 69GA(5)).[30]
The Explanatory
Memorandum clarifies that it is not to be taken that, if a state or
territory children’s court is not prescribed by the Regulations, then it is not
able to make family law orders under Part VII as a court of summary
jurisdiction.
Rather, it is intended that, in cases where there is doubt, a
court can be prescribed by the regulations so as to remove any doubt as to its
capacity to exercise such jurisdiction.[31]
Items 2, 8, 9 and 11 are consequential amendments
and insert various references to proceedings heard in a court prescribed by the
Regulations for the purposes of section 69GA. For example item 2 would
repeal and replace existing subsection 28(2) to provide that the
jurisdiction of the particular family court may be exercised by one Judge or by
a Full Court in an appeal from either a court of summary jurisdiction, or a
court prescribed by regulations for the purposes of new section 69GA.
The Explanatory
Memorandum states that these section 69GA amendments are aimed at enhancing
the capacity of the federal family law, and state and territory child
protection and family violence systems, to ‘deliver integrated services to families
with multiple legal needs, by removing some of the existing Commonwealth
legislative barriers to state and territory children’s courts exercising family
law jurisdiction’.[32]
Comment
The Family Law Section (FLS) of the Law Council of Australia
in its submission on the Exposure Draft Bill had reservations about these
proposed amendments, particularly in relation to funding and training. FLS
points out:
It should be noted that the Family Law Council recommended an
increase in Commonwealth funding to state and territory courts of summary
jurisdiction to enable them to take on more family law work (Part 2 page146).
The Public Consultation Paper appears to make no mention of this.
Unless the Government is prepared to couple these legislative
amendments with a commitment to increase funding to state and territory courts
of summary jurisdiction, as well as children’s courts, then the proposed
amendments are unlikely to have any practical effect on the ground; may
alienate stakeholders who could see it as cost-shifting by the Commonwealth; or
may result in list blowouts in the children’s court, the jurisdiction which has
the most urgency for resolution of matters concerning the protection of
children.[33]
FLS also question the Consultation paper’s assertion that
‘Many state and territory courts already exercise family law jurisdiction on a
regular basis’. According to the FLS:
That is not, respectfully, the experience of family lawyers.
In fact, the experience of most family lawyers is that judicial officers in
state and territory courts do not regularly exercise their Family Law Act jurisdiction.
State and territory courts are struggling to meet the demands of the caseload
arising from their local jurisdiction and most do not have the resources (court
time) available to hear and determine, for instance, interim parenting
applications. Many judicial officers in the state and territory local courts do
not have experience or knowledge of the family law jurisdiction, or have only
limited knowledge and experience, and are or may be reluctant to exercise their
powers as a result.
FLS is concerned about the training of state and territory
judicial officers in family law. Whilst FLS is supportive of the initiative of
commonwealth training, FLS strongly believes that such training must be ongoing
so that state and territory judicial officers are kept up to date about changes
in the law, and so that any new judicial officers appointed to the state and
territory local courts receive the base level training as part of their
induction.[34]
Former Chief Justice Diana Bryant also expressed concern
about the adequacy of the training in family law to be provided to state and
territory judicial officers stating:
The Consultation Paper indicates (at page 5) that there will
be one training module provided covering family law. This belies the complexity
of family law decision-making in the realms of both parenting (including on an
interim basis) and property and I strongly query its sufficiency to prepare the
relevant judicial officers for decision-making in this area of law.[35]
Property
jurisdiction of state and territory courts
As noted above, sections 69J and 69N of the Family Law
Act vest each state and territory court of summary jurisdiction with
federal jurisdiction to determine children’s matters under Part VII of the Act in
certain circumstances.
In addition section 46 provides that courts of summary
jurisdiction can hear contested property matters without the parties consent up
to the total property value of $20,000.[36]
Item 4 inserts proposed section 46A which
would provide that the property value for the purposes of section 46 would
be $20,000 or a higher amount if prescribed by Regulations. The rationale for
allowing for an increase in the property value is to enable parties to resolve
related matters together in state and territory courts which would ‘reduce the
cost, pressure and risk for vulnerable families’ who are dealing with legal
matters across multiple courts.[37]
The Explanatory Memorandum further explains:
State and territory courts are not intended to become the
primary fora for resolving family law disputes. Rather, these amendments are
intended to provide state and territory judicial officers with additional tools
to resolve matters involving family violence holistically, and prevent further
violence by reducing the sometimes complicated legal processes.[38]
Comment
Several submissions supported such an increase but argued
that the amount should be stipulated in the Act and not in the Regulations. For
example, the former Chief Justice of the Family Court of Australia stated:
I do not dispute the desirability of seeking to better enable
courts of summary jurisdiction to deal contemporaneously with minor property
law matters and matters involving family violence. I also acknowledge that this
proposed amendment would implement recommendation 15-2 of the Family Law
Council’s final report on Families with Complex Needs and the Intersection
of the Family Law and Child Protection Systems and partially implement
recommendation 131 of the Victorian Royal Commission into Family Violence.
However, despite my in-principle support for this measure, I
would like to express my concern about leaving the amount to be prescribed by
the Regulations.[39]
Similarly the FLS of the Law Council supported an increase
in the jurisdiction of state and territory courts in family law property
matters to promote opportunities for resolution of multiple aspects of a case
in the one court. It proposed that a limit of $100,000 be set by the Act,
rather than Regulations, to enable proper consideration of future proposals (if
any) to increase the amount.[40]
Short form
judgements
Item 10 deals with short form reasons for decisions
relating to interim parenting orders.[41]
It inserts proposed section 69ZL which provides
that a court may give reasons in short form for a decision it makes in relation
to an interim parenting order. Proposed subsection 69ZL(2) clarifies
that should a court choose to give reasons for its decision in short form, it will
still be obliged to ensure that those reasons are adequate and comply with other
obligations. The Explanatory Memorandum notes that the amendment is intended to
encourage judicial officers to consider giving short form judgments in interim
hearings and to reduce the perceived barrier noted by the Family Law Council.
The amendment is not intended to, and should not be read to limit the courts’
existing powers in any way.
For example it should not be implied that courts cannot
deliver short form judgments in final proceedings or in proceedings under other
Parts of the Act.[42]
Comment
The FLS of the Law Council generally supports this
amendment but is of the view that it is unlikely to have any impact without
broader amendment and simplification of the interim parenting decision making
process mandated in Part VII of the Act.
FLS notes that judicial officers in specialist family courts
have rarely been able to deliver ‘short form’ judgments in interim parenting
cases, and it is on balance unlikely that less experienced judicial officers in
the state and territory courts would be able to do so without falling into
error.[43]
Professors Richard Chisholm and Patrick Parkinson in their
submission on the Exposure Draft also questioned the value of this amendment
and as they noted, short form judgements are already permissible. In their view
the complexity of the analysis required in interim parenting proceedings is not
conducive to short form judgements:
We therefore doubt that the provision would enable these
courts to deliver parenting judgments of an abbreviated kind without running
the risk of being overruled on appeal [...], the necessary contents of a judgment
reflect that complexity of the legal and factual material to be covered, and
the complexity of the substantive law. The proposed amendment would not reduce
that complexity.[44]
Part 2: Strengthening
the powers of the courts to protect victims of family violence
Part 2 of Schedule 1 of the Bill proposes
amendments aimed at strengthening protections from family violence.
Summary
dismissal of unmeritorious claims
Item 14 would insert proposed section 45A
which would replace existing section 118.[45]
It proposes amendments that strengthen the powers of courts under the Family
Law Act to make summary decrees to dismiss unmeritorious applications.
Proposed subsections 45A(1) and (2) would
allow the court to make a summary decree in favour of one party, in relation to
the whole or part of a proceeding, if satisfied that a party has no reasonable
prospect of successfully prosecuting/defending the proceedings or part of the
proceedings. In determining whether a defence or proceeding has no reasonable
prospect of success, proceedings need not be hopeless or bound to fail (proposed
subsection 45A(3)).
Proposed
subsection 45A(4) would also empower the court to dismiss all or part
of the proceedings if it is frivolous, vexatious or an abuse of process. This
reflects the existing dismissal power in existing section 118. Proposed
subsection 45(5) confirms that proceedings are not frivolous, vexatious or
an abuse of process merely because an application relating to the proceedings
is made and later withdrawn.
Proposed
subsections 45A(6)–(8) would confirm other powers of the court
including the power to makes costs orders as it sees fit.
The Explanatory Memorandum states that proposed
section 45A would improve outcomes for victims of family violence by
strengthening the court’s powers to dismiss proceedings where people are using
the legal system as a tool of victimisation. It would also improve court
efficiency by providing greater clarity on when applications can be dismissed
by the court.[46]
Comment
The Law Society of New South Wales and the former Chief
Justice of the Family Court support this amendment.[47]
The FLS of the Law Council on the other hand cannot discern how the proposed
section adds to, detracts from, or changes the powers currently vested in the
court.[48]
The Women’s Legal Service Queensland, while supporting
provisions that strengthen the court’s ability to dismiss unmeritorious claims,
argues that because of the number of litigants in person in the family law
system there should be careful consideration about whether this provision will
achieve its policy objective and instead may be misused by the more powerful
party and further injustice.[49]
Their submission to the Senate Legal and Constitutional
Affairs Committee in 2015 states:
Many of our clients who are victims of family violence are
also litigants in person. Often their paperwork is not of a high standard and
they can present badly because of their fear and trauma. They can often be
facing their perpetrator on the other side who is at times legally represented,
as he can afford this. Her claims may seem on their face unmeritorious. In many
instances her case, with assistance, could be substantially improved with the gathering
of evidence and assistance with affidavit materials.
We are concerned however that this provision can be misused
by perpetrators or their lawyers to threaten her that her case is without merit
and they will seek to dismiss it and seek costs against her. We have concerns
that if she withdraws and then seeks legal assistance and files again later
with a stronger case, she may still be perceived as vexatious for making
multiple applications.
We believe there are other ways that victims of family
violence can be protected in the family law system.[50]
Dispensing
with explanations regarding orders or injunctions to children
Existing section
68P sets out the obligations of a court when making an order or granting an
injunction under the Act, that is inconsistent with an existing family violence
order. Item 17 amends section 68P removing the requirement for
the court to explain orders or injunctions that are inconsistent with an
existing family violence order to a child where it would not be in the child’s
best interest.
In determining whether it is in the child’s best interest
not to receive an explanation the court must have regard to the matters for
determining the child’s best interests in existing subsection 60CC(2) and may
(but is not required) to have regard to all or any of the matters set out in existing
subsection 60CC(3). Subsections 60CC(2) and (3) provide considerations to be
taken into account in determining the best interests of a child. Subsection
60CC(2) provides that the primary considerations are the benefit to the child
of having a
meaningful relationship with both parents, and the need to protect the
child from physical or psychological harm from being exposed to family
violence. The Explanatory
Memorandum argues:
[...] these would be relevant and beneficial considerations in
a judge’s decision about whether to provide a child with an explanation of an
order made which affects them. Subsection 60CC(3) provides an extensive list of
additional considerations, not all of which would be relevant to such a
decision. To require consideration of all those matters in the context of
section 68P would be excessive and unnecessary.[51]
It appears that this provision is now drafted to take
account of some of the concerns expressed in submissions on the Exposure Draft Bill.
That Bill had provided that a judge could dispense with an explanation on the
grounds that the child would be too young to understand the explanation.
Several submitters, including the National Children’s Commissioner had
questioned a reliance on age, arguing that it could deprive children and young
people of information relevant to their wellbeing and is at odds with the
principles of the child’s best interests.[52]
Time limits
on orders issued by state and territory courts
Section 68R is in Part VII Division 11 of the Family
Law Act, which deals with inconsistency between protection orders made
under state and territory family violence legislation and Family Law Act
orders that provide, require or authorise a person to spend time with a child.
The purpose of this Division is:
- to
resolve inconsistencies between orders
- to
ensure that such orders do not expose people to family violence and
- to
achieve the objects and principles in section 60B of the Family Law Act,
which relate to meeting the child’s best interests.[53]
Section 68R addresses the situation where a victim of
family violence seeks a protection order after a parenting order has been made
and is seeking conditions in that protection order that would be inconsistent
with the existing parenting order. As the Australian Law Reform Commission has
explained:
Because conditions in a parenting order made under the Family
Law Act will override any inconsistent conditions in a protection order,[54]
a protection order that is inconsistent with a parenting order may not provide
effective protection for a victim of family violence, as the inconsistent
conditions in the protection order are not binding and cannot be enforced.
Section 68R provides a mechanism for state and territory courts to amend the
parenting order to remove the inconsistency and ensure that the person is
protected from violence.[55]
Section 68R
operates differently depending on whether a parenting order is amended by a
state or territory court during proceedings for an interim protection order or
for a final protection order. When a parenting order is revived, varied or
suspended under section 68R in proceedings to make or vary an interim
protection order, section 68T provides that the variation or suspension of the
parenting order only has effect for the period of the interim protection order
or 21 days from the date of the order, whichever is earlier. In contrast, the Family
Law Act does not place a time limit on parenting orders revived, varied,
discharged or suspended in proceedings to make or vary a final
protection order.
The Explanatory
Memorandum explains that the existing strict 21 day time limit can result in
inconsistent orders about parent‑child contact. For example, if a party
is unable to have their parenting matter heard in the family courts within 21
days, the parenting order that was varied or suspended by the state or
territory court is revived. This can result in two valid, yet inconsistent,
orders— an interim family violence order prohibiting or limiting the other
party’s contact with a child, and a parenting order providing for the party’s
contact with the child. This outcome has the potential to put children and
their carers at risk of further family violence.[56]
To address this
issue, items 18 and 19 would amend section 68T in order to remove
the 21 day limit and instead provide that the court’s revival, variation or
suspension under section 68R ceases to have effect at the earliest of:
- the
time the interim family violence order stops being in force
- the
time specified in the interim order
- the
time that the order is affected by an order made by a court.
The effect would
be that any revival, variation or suspension of an Order would always cease
upon the expiration of the interim protection order, but judicial officers
would have the flexibility to determine timeframes and relist matters to manage
cases according to their particular circumstance.[57]
This amendment
would implement recommendation 4 of the Family Law Council’s Interim Report[58]
which in turn recommended the Government adopt the relevant part of
Recommendation 16-5 of the Australian and NSW Law Reform Commissions’ 2010
report.[59]
Comment
The Chief
Magistrate, Adelaide Magistrates Court in her submission on the 2015 Bill argued
the removal of the 21 day period in section 68T will create difficulties with a
significant risk that parties may choose to lodge their matters at the
Magistrates Court rather than the Family Court with a substantial shift of the
work from the Commonwealth jurisdiction to the State jurisdiction. This has the
potential to create significant practical difficulties for the Magistrates
Court.[60]
The Magistrates’
Court of Victoria (MCV) supports the removal of the 21 day time limit subject
to funding and appropriate resourcing. The MCV is however concerned about the
resourcing implications noting:
This is, however, likely to significantly increase the
workload of the MCV as parties are likely to utilise this provision more
readily where there is greater certainty around its application and there are
likely to be significant resourcing implications as a result;
In order to effectively make these orders the MCV should
therefore have access to existing FLA orders to ensure that in exercising its
power to suspend, vary or revive existing FLA orders it is doing so
consistently and with regard to those FLA orders, and not relying on parties
self-reporting, particularly where there are not represented (typically on an
interim basis). The MCV therefore recommends investment in better resourcing
for the MCV and requires further clarification around how information is to be
shared between the MCV and FCC [Federal Circuit Court]/Family Court.[61]
Offences
for breaching injunctions
As currently provided in the Family Law Act courts
may grant personal protection injunctions. In particular section 68B in Part
VII permits a court to grant an injunction to protect the welfare of a child.
Section 114 in Part XIV permits a court to grant an injunction in circumstances
arising from proceedings to do with a marital relationship where the court
considers it proper. Contravention of an injunction is currently a private
matter between the parties and can only be enforced if the aggrieved party
brings a civil enforcement action in a family court.
The reports of the ALRC/NSWLRC and the Victorian Royal
Commission into Family Violence both recommended that the Family Law Act
be amended to provide that a breach of an injunction for personal protection
including an injunction restraining a person from entering or remaining in
certain places become a criminal offence.[62]
The rationale is that this would enable the family law courts to provide
additional protection for victims of family violence. It would also remove the
onus on the victim of family violence to bring the application for breach of
the injunction.[63]
As the Government’s consultation paper explains:
The State enforces the criminal law. Actions brought in
respect of a criminal offence are brought as a prosecution, by the State (these
are not civil disputes). By criminalising this conduct, the amendment would
reinforce that family violence is not a private matter. It is a matter of
public concern.
It would also enable state police to enforce the injunctions.
Although police are currently empowered to arrest individuals who breach
orders, without criminalisation of this conduct, breaches of these injunctions
remain a civil matter, only enforceable by the aggrieved party returning to
court. This delay can lead to perpetuation of abuse, and the lack of immediate
consequences could lead to an escalation of conflict.
Making a breach of these orders a criminal offence would, by
effectively providing the family law courts with an enforceable restraining
order, reduce the number of courts that a person subject to violence is
required to interact with.[64]
Accordingly items 27 and 28 in the Bill propose
amendments that criminalise breaches of family law injunctions made for
personal protection.
Under proposed section 68C it would be a criminal
offence for a person (the respondent) to breach a personal protection injunction
made under section 68B. The elements of the offence set out in subsection
68C(1) are:
- there
is an injunction in force under section 68B that is expressed to be for the
personal protection of another person
- the
injunction is directed against the respondent
- the
respondent engages in conduct and
- the
conduct breaches the injunction.
Intentionally engaging in this conduct would constitute an
offence punishable by up to two years imprisonment and/or 120 penalty units
($25,200).[65]
Proposed subsections 68C(2) and (3) provide that
the defence of self-induced intoxication cannot be relied on. Proposed
subsection 68C(4) provides that criminal responsibility does not extend to
the person protected by the injunction if their conduct results in a breach of
the injunction. This is to ensure that victims of family violence cannot be
charged with aiding and abetting the offence if their actions invite a breach.[66]
Proposed section 114AA creates an offence of
breaching an injunction for personal protection made under section 114. It is
drafted in the same terms as the proposed section 68C offence.
Related to these amendments are proposed sections 68D,
68E, 114AAB and 114AAC. These provisions have the effect of allowing state
and territory courts to revive, vary, or suspend existing injunction or other
specified instruments[67]
when hearing proceedings to do with breaches of personal protection
injunctions. The Explanatory Memorandum states that these sections will allow a
court to ensure that family law orders are not inconsistent with state or
territory family violence orders and that family law orders do not operate to
expose a person to family violence.[68]
Comment
The FLS of the Law Council in its submission on the Exposure
Draft Bill supported ‘legislative changes to criminalise breaches of
injunctions for personal protection made under the Family Law Act as a
means of increasing their effectiveness to protect victims of family violence
and to provide a clear direction to police to enforce injunctions’. However,
the FLS raised concerns about the proposed amendments in terms of the
interaction of state/territory courts and police officers and Commonwealth
laws, the effect of the amendments on court users and their application by
judicial officers, legal practitioners and state and territory police.[69]
The Law Society of New South Wales agrees that the
amendments raise complex issues and that practitioners hold differing views.
While the Law Society’s Family Law Committee supports the proposed amendments,
the Society’s Criminal Law Committee opposes the creation of a new offence and
considers there are preferable ways of addressing the enforceability issue.[70]
Concluding comments
At the time of release of the Exposure Draft
Bill advocates against family violence were generally supportive of the proposed
amendments, although there were reservations amongst many about whether they would
achieve the purpose of offering better protection of victims of family violence.
A common theme coming through submissions was that much more extensive change
and resourcing is needed to make the safety of women and children central to
the family law system. Since the release of the Exposure Draft in December 2016
the Government has announced further initiatives including an ALRC review of the
Family Law Act due to report in 2019. It would seem that the provisions
in the Bill are in comparison fairly minimal fine-tuning and would appear to be
an interim solution to a much bigger problem.
[1]. Family violence, the term used throughout the Bill
is defined by section 4AB of the Family Law Act to be ‘violent,
threatening or other behaviour by a person that coerces or controls a member of
the person’s family (the family member), or causes the family member to be
fearful,’ which includes a sexual assault or other sexually abusive behaviour.
[2]. M Neilsen, Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011, Bills digest, 126,
2010–11, Parliamentary Library, Canberra, May 2011, p. 7.
[3]. Family Law
Legislation Amendment (Family Violence and Other Measures) Act 2011.
[4]. Subsection
60CC(2) of the Family Law Act 1975.
[5]. Ibid.,
subsection 60CC(2A).
[6]. D
Bryant, The family courts and family violence, speech presented by the
Hon Chief Justice Diana Bryant AO to the Judicial Conference of Australia
Colloquium, 10 October 2015. Quoted in: M Neilsen, ‘Family
law reform and family violence’, Briefing book: key issues for the 45th
Parliament, Parliamentary Library, Canberra, 2016, p. 194.
[7]. Family
Law Council, Interim
report to the Attorney-General: in response to the first two terms of reference
on Families with Complex Needs and the Intersection of the Family Law and Child
Protection Systems, June 2015, p. 1.
[8]. Attorney-General’s
Department (AGD), Family
Law Council published reports, ‘Reports on Families with Complex Needs and
the Intersection of the Family Law and Child Protection Systems’, AGD website.
[9]. Ibid.
[10]. Family
Law Council, Family
Law Council report to the Attorney-General on families with complex needs and
the intersection of the family law and child protection systems : final report
- June 2016 (Terms 3, 4 & 5), June 2016, p. 12. The relevant
recommendation is recommendation 22.
[11]. Australian
Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC),
Family
violence–a national legal response, report, 114, vol. 1, ALRC, Sydney,
2010.
[12]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 2; Victoria, Royal Commission into Family Violence, Summary
and recommendations, The Commission, Melbourne, March 2016; Coroner’s
Court of Victoria, Finding
into death with inquest: inquest into the death of Luke Geoffrey Batty,
court reference COR 2014 0855, 28 September 2015.
[13]. Council
of Australian Governments (COAG), COAG
Advisory Panel on Reducing Violence against Women and their Children: final
report to COAG , [Department of the Prime Minister and Cabinet],
[Canberra], 1 April 2016.
[14]. M Turnbull (Prime Minister), G Brandis (Attorney-General) and
M Cash (Minister for Women), New
criminal offence to better protect victims of family violence, joint media release, 9 December 2016.
[15]. Ibid.
[16]. The links to the Bill, its Explanatory Memorandum, second reading speech and Bills
Digest can be found on the Bill’s home page.
[17]. Ibid.
[18]. AGD, Amendments to the Family Law Act 1975 to respond to family violence,
public consultation paper, December 2016, p. 3. Available on the AGD website at
‘Proposed
amendments to the Family Law Act 1975 to respond to family violence’.
[19]. Senate
Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Family Law Amendment (Financial Agreements and Other Measures) Bill
2015 homepage, Parliament of Australia.
[20]. Senate
Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Family Law Amendment (Family Violence and Other Measures) Bill 2017
homepage, Parliament of Australia.
[21]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 3.
[22]. Ibid.
[23]. The
Statement of Compatibility with Human Rights can be found at pages 4–8 of the Explanatory
Memorandum to the Bill.
[24]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 13.
[25]. Under section 2B of the Acts Interpretation
Act 1901 a court of summary jurisdiction is defined as ‘any justice of
the peace, or magistrate of a state or territory, sitting as a court of summary
jurisdiction’.
[26]. The Explanatory Memorandum endnote ii
states: This uncertainty has been discussed in a number of recent
reports. See, for example, paragraphs 19.121 to 19.124 of the Australian and
New South Wales Law Reform Commission’s 2010 report Family Violence – A
National Legal Response, and Chapter 4 of the Family Law Council’s 2015 Interim
Report on Families with Complex Needs and the Intersection of the Family Law
and Child Protection Systems.
[27]. Family
Law Council, Interim
Report on Families with Complex Needs and the Intersection of the Family Law
and Child Protection Systems, op. cit., p. 100.
[28]. Ibid., p. 101.
[29]. Ibid.,
p. 103–4.
[30]. This amendment would also partially implement
recommendation 131 of the Victorian Royal Commission into Family Violence.
[31]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 14.
[32]. Ibid.,
p. 12.
[33]. Law Council of Australia, Family Law Section, Submission
to
the Attorney-General’s Department,
Family Law Amendment (Family Violence and Other Measures) Bill 2017:
Exposure draft, 17 February 2017, p. 4.
[34]. Ibid., pp. 4–5.
[35]. D
Bryant, Submission
to the Attorney-General’s Department, Exposure Draft: Family Law Amendment
(Family Violence and Other Measures) Bill 2017, 13 January 2017, p. 4.
[36]. Section 46 provides that where a proceedings in
relation to property of a value exceeding $20,000 are instituted in, or,
transferred to, a court of summary jurisdiction and the respondent seeks an
order different from that sought in the initiating application, then, unless each
of the parties consents, the court must transfer the proceedings to one of the
family law courts or the relevant state or territory supreme court.
[37]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 2.
[38]. Ibid.
[39]. D Bryant, Submission
to the Attorney-General’s Department, op. cit., p. 2.
[40]. Law Council of Australia, Family Law Section, Submission
to
the Attorney-General’s Department, op. cit., pp.
5–6.
[41]. Interim orders are
usually made in urgent cases and last until other orders or final orders are
made.
[42]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 16.
[43]. Law Council of Australia, Family Law Section, Submission
to
the Attorney-General’s Department, op. cit., p. 5.
[44]. R Chisholm and P Parkinson, Submission
to the Attorney-General’s Department, Family Law Amendment (Family Violence
and Other Measures) Bill 2017: Exposure draft, 10 February 2017, p. 4.
[45]. Section
118 is to be repealed by item 23.
[46]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 18.
[47]. Law Society of New South Wales, Submission
to the Attorney-General’s Department, Family Law Amendment (Family Violence
and Other Measures) Bill 2017 Exposure draft, 20 January 2017, p. 2; D
Bryant, Submission
to the Attorney-General’s Department, op. cit., p. 3.
[48]. Law
Council of Australia, Family Law Section, Submission
to
the Attorney-General’s Department, op. cit., p.
6.
[49]. Women’s
Legal Service Queensland, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Family Law Amendment (Financial Agreements and Other Measures) Bill
2015, p. 8.
[50]. Ibid.
[51]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 21.
[52]. Australian Human Rights Commission, National Children’s
Commissioner, Submission
to the Attorney-General’s Department, Family Law Amendment (Family Violence
and Other Measures) Bill 2017 Exposure draft, 20 January 2017, p. 2.
[53]. Section
68N of the Family Law Act.
[54]. Subsection
68Q(1) of the Family Law Act.
[55]. ALRC
and NSWLRC, Family
violence–a national legal response, op. cit., paragraph 16.17.
[56]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 22.
[57]. Ibid.
[58]. Family
Law Council, Interim
Report on Families with Complex Needs and the Intersection of the Family Law
and Child Protection Systems, op. cit., p. 104.
[59]. Australian
Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC),
Family
violence–a national legal response, op. cit.
[60]. Chief Magistrate, Adelaide Magistrates Court, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Family Law Amendment (Financial Agreements and Other Measures) Bill
2015, December 2015.
[61]. Magistrates’ Court of Victoria, Submission
to the Attorney-General’s Department, Family Law Amendment (Family Violence
and Other Measures) Bill 2017: Exposure draft, February 2017, pp. 3–4.
[62]. Recommendation
17-4 of the Australian and NSW Law Reform Commissions’ 2010 report and
Recommendation 131 of the Victorian Royal Commission into Family Violence.
Cited in: Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 24.
[63]. AGD, Amendments to the Family Law Act 1975 to respond to family violence,
public consultation paper, op. cit., p. 14.
[64]. Ibid., pp. 14–15.
[65]. Under subsection 5.6(1) of the Criminal Code Act
1995 the
default fault element for a physical element consisting of conduct is intent.
Under section 4AA of the Crimes Act 1914,
a penalty unit is equivalent to $210.
[66]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 3.
[67]. The instruments listed include amongst others: parenting
orders, recovery orders and injunctions granted under sections 68B or 114 (proposed
paragraphs 68D(2)(b) and 114AAB(2)(b)).
[68]. Explanatory
Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill
2017, p. 34
[69]. Law Council of Australia, Family Law Section, Submission
to
the Attorney-General’s Department, op. cit., p.
7.
[70]. Law Society of New South Wales, Submission
to the Attorney-General’s Department, op. cit., p. 3.
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