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Monday, 21 April, 2014.

Domestic Violence & Family Law Legislation changes are on their way

The Federal and State governments have for over two decades now been struggling with dealing with family and domestic violence complaints coming before the Courts.  In Queensland the Domestic and Family Violence Protection Act 1989 has been the centrepiece legislation in the State response to the problems of domestic and family violence.  At the Commonwealth level the Courts exercising jurisdiction under the Family Law Act 1975 and its various revisions have been repeatedly challenged with dealing with the issue of family and domestic violence as it impacts children and families in the context of proceedings brought under the Family Law Act.

 

When the Domestic and Family Violence Protection Act 1989 came into force in Queensland the world was a very different place.  For instance the internet was in its infancy, the world wide web was more than half a decade away, mobile telephones were the size of house bricks attached to briefcase sized power packs and the province of only the most important and highly funded of individuals.  Since that time the world has changed markedly, technology has made individuals accessible and interconnected via mobile smart devices which also make telephone calls, the world wide web is now in its second generation, social media and text messaging are the standard and cyberspace is now where most individuals with capacity to access the internet interact on a daily basis.

 

In 1994 Alexander Downer quipped of in relation to the Liberal Party’s policy on domestic violence as ‘the things that batter‘ which policy responded to the perceived need for change in the legislative and judicial approach to domestic violence issues at that time.  There have been changes in legislation and in judicial approach since then and now change is upon us once more.  This time the change is not merely on the edges but a two pronged overhaul of the way in which domestic and family violence is policed and treated judicially in Australia the objective of which is to bring the response to the problem posed by domestic and family violence into the 21st Century and also to bring the relevant legislation into line with Australia’s international treaty obligations 1.

 

The first round of changes scheduled to take effect on 7 June 2012 is a raft of amendments to Part VII Family Law Act 1975.  Key among these is the changes to be made to §60B and §60CC Family Law Act which set out the principles underlying Part VII and the considerations to which the Court must have regard when determining what is in a child’s best interests respectively.

 

The amendment to §60B inserts the requirement that the principles underlying Part VII be applied consistent with the Convention on the Rights of the Child.  This does not have the effect of incorporating the convention into Australian Law but, rather, requires that ambiguities as to the interpretation of the legislation be resolved consistent with Convention.

 

The changes to §60CC of the Act will effectively give primacy to the need to protect relevant children from the effects of being exposed to domestic and family violence over the desirability to promote the relationship between a child and both parents under the Primary Considerations set out under §60CC(2) by the insertion of §60CC(2A) 2 and repealing the so-called ‘friendly parent‘ provisions in §60CC(3)(c), (4) and (4A).

 

§60CC(3)(c) Family Law Act 1975 3 has now been replaced by a new §60CC(3)(c) 4 and (ca) 5.  Importantly the new §60CC(3)(ca)  requires the Court to have as a secondary consideration ‘the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.‘ This places the financial support of the child via Child Support, for example, squarely in the spotlight.

 

Other amendments to §60CC(3)(k) 6 7 of the Act require the Court to have regard to the specifics of any family violence Order affecting any family member or child the welfare of which is under consideration.

 

§60CH 8, 60CI 9 and 60D 10 impose obligations on parties and advisors with respect to disclosures to be made to the Court of Family Welfare Arrangements, Family Violence Orders and advising parties that they are required to have regard to the best interests of the child when giving advice concerning family law disputes involving children.  These obligations are additional to those imposed by §63DA 11 of the Act and need to be known and understood by the advisors affected including lawyers and counselors.

 

The second prong of the domestic and family violence reform about to be implemented involves amendment to the State legislation which amendments are to take effect from 17 September 2012.  Under those changes the Domestic and Family Violence Protection Act 1989 will be repealed and replaced by the Domestic and Family Violence Protection Act 2012.

 

The new Act is a substantial restatement of the present law but does contain some significant changes.   In effect the key changes which will affect parties and practitioners can be summarised as follows:

 

Variation of the definition of Domestic and Family Violence

 

Whereas, under the 1989 legislation, the definition of violence was couched in terms of indecent conduct, personal injury, damage, harassment and threats to do those things 12, the definition under the 2012 legislation is more expansive and embraces coercive conduct as well as the acts defined as domestic violence under the 1989 Act 13.

 

This wider definition is more in keeping with the kinds of abuses of power and influence which are all to commonly complained of in family law disputes where there is a disparity in power as between the parties to the relationship 14.  It also covers ‘victim‘ conduct such as threats to self harm in order to coerce which are not caught explicitly under the 1989 definition and coercive economic practices within a relationship 15.  The definition of ‘domestic violence‘ under the 2012 Act is almost identical to the definition of ‘family violence‘ under the Family Law Act 1975 due to take effect on 7 June 2012.

 

Expansion of definition of the relevant relationships giving a right to obtain an Order

 

There are three categories of relevant relationship recognised as relevant under the new act 16.  They are:

 

• Intimate personal relationships;

 

• Family relationships;

 

• Informal care relationships.

 

The concept of intimate personal relationship is further expanded upon to include spousal relationships, relationships where the parties are engaged and where the parties to the relationship are conducting themselves as or identify as a couple 17.

 

Again spousal relationships 18, engagement relationships 19 and couple relationships 20 are dealt with discreetly in separate definitions under the act so as to expand and clarify the conduct and indicia which admit persons to those categories and in the case of spousal and couple relationships broaden the admitting indicia to those relationships.  The broadening of the couple relationship now admits ‘online‘ relationships as ones capable of forming the basis of jurisdiction to make a protection Order.

 

Similarly the definition of parent is dealt with separately 21 in order to define that term with reference to a variety of  factors and arrangements 22.

 

There has been no change to the definitions of Family Relationship or Informal Care Relationship as between the two Acts.

 

Change to the test for when an order will be made.

 

Under the 1989 legislation the test for the granting of a Protection Order was that the Court had to be satisfied as to three matters of fact 23.  These were:

 

1. That the parties were in a relevant relationship to enliven the jurisdiction of the Court under the act;

 

2. That there had been an act of domestic violence by the Respondent in relation to the Aggrieved; and

 

3. There was a likelihood that without the making of a Protection Order there would be a further incidence of Domestic Violence by the Respondent or that a threat to do so would be carried out.

 

Under the 2012 legislation the last of those considerations has changed to a test as to whether the making of an Order in favour of an Aggrieved must be necessary or desirable to protect the Aggrieved from domestic violence 24.   In determining whether the making of an Order is ‘necessary or desirable‘ the Court must have regard to the Principles for Administering the Act as set out in §4 25 and whether or not there has been a previous Voluntary Intervention Order made against the Respondent and the degree to which there has been compliance with that Order 26.

 

Voluntary Intervention Orders are a measure that can be Ordered whereby a Respondent is referred to an approved program 27 or to appropriate counselling with an approved provider 28 and are dealt with in Division 6 of the 2012 Act.

 

The Voluntary Intervention Order may only be made if the respondent:

 

• has relevant Intervention services reasonably accessible having regard to where the Respondent lives or works 29;

 

• is present in court 30; and

 

• having had the nature, effect and requirements of the Intervention Order explained to them 31 agrees to the Order being made 32.

 

The test for making a Temporary Protection Order remains the same, namely that it appears to the Court that an act of Domestic Violence has been committed by the Respondent against the Aggrieved and that the parties are in a relevant relationship 33 34.

 

The test for making an ex parte  has changed under the 2012 Act from it appearing to the Court that ‘the aggrieved or a named person is in danger of personal injury or that property of the aggrieved or a named person is in danger of substantial damage‘ under the 1989 Act 35 to the Court being ‘satisfied that the making of a temporary protection order despite the respondent having not been served with the application is necessary or desirable to protect the aggrieved, or another person named in the application, from domestic violence‘ under the 2012 Act 36.

 

Under the 2012 Act Orders last for 2 years unless specifically Ordered to have a different duration 37 and may be made by consent 38 and varied 39 in much the same way procedural as Orders under the 1989 Act provided that the Court is satisfied of the base jurisdictional requirement of the requisite relationship existing between the parties to the Order.

 

When making a Protection Order there are two (2) mandatory provisions which the Court must include in an Order 40.  These are:

 

1. The respondent must be of good behaviour and must not commit domestic violence or associated domestic violence; and

 

2. If a child of the aggrieved, or a child who usually lives with the aggrieved, is a named person in the order, the respondent must not expose the child to domestic violence.

 

The Court may impose other conditions as it deems necessary or desirable and these are set out and dealt with in Division 5 of the 2012 Act.

 

Introduction of a positive obligation to inform the Court of existing Family Law Orders.

 

Under the new legislation there is a positive duty on an Aggrieved to disclose the existence any family law Order, injunction, undertaking, plan or recognisance mentioned in §68R of the Family Law Act 41 to the Court at the time the Application is made 42.

 

Having been informed of the existence of the family law Order the Court, in considering making a Protection Order, may have regard to the family law Order in crafting the conditions of any proposed Protection Order 43

 

As far as evidence, the conduct of hearings, the award of costs, non-publication of details of proceedings these requirements are essentially the same under the new legislation as under the old.

 

In relation to the issue of an award of costs the test remains the same, namely that the Court can only award costs for an application which is materially malicious, frivolous, vexatious or deliberately false.  The difference now is that the Court must ‘hear and determine‘ the application for a Protection Order and dismiss it on the grounds of being  malicious, vexatious, frivolous or  deliberately false 44 before costs can be awarded.  Also, whilst the legislation imports many of the provisions of the Uniform Civil Procedure Rules 1999 it does not import the costs provisions of Chapter 17A UCPR and hence it appears that costs may not be substantial costs as provided for under the UCPR but rather limited costs as provided for under the Justices Act 1886.

 

The net result of the legislative changes programmed to take effect throughout 2012 is that Domestic Violence Orders will be easier to obtain and will have a greater impact in proceedings where parenting issues are in dispute.

 

One concern which arises immediately as a consequence of the amendments is the vulnerability to abuse of the legislation by those wishing to gain an illegitimate advantage in such proceedings.  The inclination to  conservatism of the judiciary and the perception of Domestic Violence Orders as non-criminal Orders and minimally invasive and impactful on individual rights together with the spectre of reading about the sequel to the refusal of a temporary or final order in the press the following day or week makes the granting of these Orders a result of erring on the side of caution.  With these new provisions that caution can have devastating impacts on litigants in legitimate parental disputes before the Courts.  Fortunately, under the new legislation where an application and cross-application is brought before the Court the Court is bound to consider which of the parties is more in need of protection and Order accordingly 45.  This measure provides some protection for those victims of the ‘tactical Domestic Violence Order‘ and the ‘tit for tat application‘.

 

Ultimately the result is an alignment and harmonisation between the State based Protection Order system and the Family Law Act allowing for greater understanding as to the  meaning and effect of Protection Orders in relation to Domestic and Family Violence on parties to Family Law proceedings and on those proceedings themselves as well as bringing the Domestic and Family Violence legislation (in Queensland at least) into the 21st Century.

 

If you are experiencing Family and Domestic Violence or are concerned about the impact of an Order on Family Law proceedings or any other impact such an Order may have then please, call us, we’re here to help.



Notes:

  1. 1989 Convention on the Rights of the Child  which was ratified by the Commonwealth Parliament in 1990
  2. 60CC(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
  3. 60CC(3)(c)  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
  4. 60CC(3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
    (i)  to participate in making decisions about major long-term issues in relation to the child; and
    (ii)  to spend time with the child; and
    (iii)  to communicate with the child;
  5. 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
  6. The present text of §60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
    (i) the order is a final order; or
    (ii) the making of the order was contested by a person;
  7. The text of the new §60CC(3)(k) 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:
    (i) the nature of the order;
    (ii) the circumstances in which the order was made;
    (iii) any evidence admitted in proceedings for the order;
    (iv) any findings made by the court in, or in proceedings for, the order;
    (v) any other relevant matter;
  8. §60CH Informing court of care arrangements under child welfare laws
    (1) If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.
    (2) If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.
    (3) Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).
  9. §60CI   Informing court of notifications to, and investigations by, prescribed State or Territory agencies
    (1)  If:
    (a)  a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:
    (i)  a notification or report (however described) to a prescribed State or Territory agency; or
    (ii)  an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and
    (b)  the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;
    that party must inform the court of the matter.
    (2)  If:
    (a)  a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:
    (i)  a notification or report (however described) to a prescribed State or Territory agency; or
    (ii)  an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and
    (b)  the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;
    that person may inform the court of the matter.
    (3)  Failure to inform the court of the matter does not affect the validity of any order made by the court.
    (4)  In this section:“prescribed State or Territory agency”means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.
  10. §60D Adviser’s obligations in relation to best interests of the child
    (1) If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:
    (a) inform the person that the person should regard the best interests of the child as the paramount consideration; and
    (b) encourage the person to act on the basis that the child’s best interests are best met:
    (i) by the child having a meaningful relationship with both of the child’s parents; and
    (ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
    (iii) in applying the considerations set out in sub-paragraphs (i) and (ii)–by giving greater weight to the consideration set out in subparagraph (ii).
    (2) In this section:”adviser” means a person who is:
    (a) a legal practitioner; or
    (b) a family counsellor; or
    (c) a family dispute resolution practitioner; or
    (d) a family consultant.
  11. §63DA(1) If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must:
    (a) inform them that they could consider entering into a parenting plan in relation to the child; and
    (b) inform them about where they can get further assistance to develop a parenting plan and the content of the plan.
    (2) If an adviser gives advice to people in connection with the making by those people of a parenting plan in relation to a child, the adviser must:
    (a) inform them that, if the child spending equal time with each of them is:
    (i) reasonably practicable; and
    (ii) in the best interests of the child;
    they could consider the option of an arrangement of that kind; and
    (b) inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is:
    (i) reasonably practicable; and
    (ii) in the best interests of the child;
    they could consider the option of an arrangement of that kind; and
    (c) inform them that decisions made in developing parenting plans should be made in the best interests of the child; and
    (d) inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2); and
    (e) inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 64D) include a provision that the order is subject to a parenting plan they enter into; and
    (f) inform them about the desirability of including in the plan:
    (i) if they are to share parental responsibility for the child under the plan–provisions of the kind referred to in paragraph 63C(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and
    (ii) provisions of the kind referred to in paragraph 63C(2)(g) (which deals with the process for resolving disputes between the parties to the plan); and
    (iii) provisions of the kind referred to in paragraph 63C(2)(h) (which deals with the process for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan); and
    (g) explain to them, in language they are likely to readily understand, the availability of programs to help people who experience difficulties in complying with a parenting plan; and
    (h) inform them that section 65DAB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so.
    Note: Paragraphs (a) and (b) only require the adviser to inform the people that they could consider the option of the child spending equal time, or substantial and significant time, with each of them. The adviser may, but is not obliged to, advise them as to whether that option would be appropriate in their particular circumstances.
    (3) For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if:
    (a) the time the child spends with the parent includes both:
    (i) days that fall on weekends and holidays; and
    (ii) days that do not fall on weekends or holidays; and
    (b) the time the child spends with the parent allows the parent to be involved in:
    (i) the child’s daily routine; and
    (ii) occasions and events that are of particular significance to the child; and
    (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
    (4) Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant.
    (5) In this section:
    adviser” means a person who is:
    (a) a legal practitioner; or
    (b) a family counsellor; or
    (c) a family dispute resolution practitioner; or
    (d) a family consultant.
  12. §11 Domestic and Family Violence Protection Act 1989
  13. §8 Domestic and Family Violence Protection Act 2012
  14. §11 Domestic and Family Violence Protection Act 2012
  15. §12 Domestic and Family Violence Protection Act 2012
  16. §13 Domestic and Family Violence Protection Act 2012
  17. §14 Domestic and Family Violence Protection Act 2012
  18. §15 Domestic and Family Violence Protection Act 2012
  19. §17 Domestic and Family Violence Protection Act 2012 (this is a direct lift from the 1989 Act (§12A(1))
  20. §18 Domestic and Family Violence Protection Act 2012
  21. §16 Domestic and Family Violence Protection Act 2012
  22. e.g.  foster and kinship carers under the Child Protection Act 1999 and customarily recognised parental relationships in Aboriginal and Torres Strait Islander cultures
  23. §20 Domestic and Family Violence Protection Act 1989
  24. §37(1) Domestic and Family Violence Protection Act 2012
  25. §37(2)(a) Domestic and Family Violence Protection Act 2012
  26. §37(2)(b) Domestic and Family Violence Protection Act 2012
  27. §69(1)(a) Domestic and Family Violence Protection Act 2012
  28. §69(1)(b) Domestic and Family Violence Protection Act 2012
  29. §69(2) Domestic and Family Violence Protection Act 2012
  30. §71(a) Domestic and Family Violence Protection Act 2012
  31. §70 Domestic and Family Violence Protection Act 2012
  32. §77 Domestic and Family Violence Protection Act 2012
  33. §45(1) Domestic and Family Violence Protection Act 2012
  34. §39A Domestic and Family Violence Protection Act 1989
  35. §39D Domestic and Family Violence Protection Act 1989
  36. §47 Domestic and Family Violence Protection Act 2012
  37. §97 Domestic and Family Violence Protection Act 2012
  38. §51 Domestic and Family Violence Protection Act 2012
  39. §86 Domestic and Family Violence Protection Act 2012
  40. §28 & 56(1)(a) Domestic and Family Violence Protection Act 2012
  41. or its Western Australian equivalent §176  Family Court Act 1997 (WA)
  42. §71(b) Domestic and Family Violence Protection Act 2012
  43. §78 Domestic and Family Violence Protection Act 2012
  44. §157(2) Domestic and Family Violence Protection Act 2012
  45. §4(2)(d) Domestic and Family Violence Protection Act 2012
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