Report into National Plan to End Violence against Women and Children speaks of significance of reform within family law

The Domestic Family and Sexual Violence Commission has recently released the 2022-2023 Yearly Report to Parliament, the Yearly Report since the release of the National Plan to End Violence against Women and Children in 2022.

Domestic, Family and Sexual Violence Commissioner, Michaela Cronin, states in the Foreward to the report that “serious concerns have been raised that government systems, including the family court and child protection are causing harm and that police too often misidentify women as the primary aggressor… when they are the person most in need of protection”. The Commissioner goes on however to say that “if we are bold and determined” it is possible to achieve their goal of ending domestic, family and sexual violence within a generation.

The Report speaks about family law reform implemented by the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 which are hoped will improve outcomes for women and children experiencing family violence, including:

1.      Removal of the presumption in favour of parents sharing parental responsibility, and the pathway to consideration of equal time arrangements in the event that parents share parental responsibility;

2.      Simplification of the factors that may be considered pursuant to Section 60CC of the Family Law Act in order to determine the best interests of children, and to place greater emphasis upon safety of children and their caregivers;

3.      Strengthening of provisions to prevent harmful or vexatious proceedings;

4.      Mandatory requirement for Independent Children’s Lawyers to meet with children, and seek their views;

5.      Improved information sharing between government agencies.

The Report speaks of the need for drastic improvements in funding in order to improve outcomes for women and children, noting that “the experience and outcomes of involvement in family law processes is also influenced by a person’s access to legal representation”.  Accordingly, there has been a greater call for increased funding to the community legal sector. The Report also speaks of the need for more targeted education regarding family violence for legal practitioners, and frontline workers, to assist in identifying and responding to family violence.

The release of the report also coincides with the announcement of Attorney General Mark Dreyfus on 30 August 2024 for a review of the Federal Circuit and Family Court of Australia Act 2021. The establishment of the Federal Circuit and Family Court of Australia in September 2021 was primarily directed towards improving efficiencies within the Court, in order to limit the duration of family law litigation. Amongst other things, the review will address the level of specialisation of judicial officers determining outcomes in family law litigation, however the Terms of Reference do not specifically call for a review of the family law system generally.

For family and domestic violence support and assistance, you can reach out to 1800 RESPECT via the National Helpline on 1800 737 732. For legal advice in relation to your family law matter, including family violence, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe, August 2024

Family Violence: What is it and how to apply for a Protection Order if you feel unsafe

In the ACT, the Family Violence Act 2016 sets out the pathway for a Registrar or Magistrate to make a Family Violence Order in favour of a party seeking protection.

What is family violence?

Family violence includes behaviour towards a current or former partner or spouse, or another family member involving physical, emotional, financial or sexual violence or abuse, as well as threatening or coercive and controlling behaviour. Specific examples of behaviour which constitutes family violence recognised under the Family Violence Act include exposure of a child or children to family violence, sexually coercive behaviour, damaging property and harming an animal.

How do I apply for a Family Violence Order?

An Application for Family Violence Order will be heard by a Registrar or Magistrate in the ACT Magistrates Court.

The Court will generally hear an application for an Interim Family Violence Order on the same day that the application is made. It is heard on an ex-parte basis, meaning that the Respondent is not put on notice that the application has been made until after the application for an interim order has been determined by the Court.

On what grounds may the Court make an Interim (Temporary) Family Violence Order?

The Court may make an interim order if satisfied that the order is required to:

1.      Ensure the safety of an applicant from family violence; or

2.      To prevent substantial damage to an affected person’s property.

If an interim order is granted, it will remain in place until such time as the application for a final family violence order has been determined, unless an application is withdrawn. An interim order should not however be in place for longer than 12 months.

After the application for an Interim Family Violence Order has been determined, the Court will conduct a preliminary conference in order to determine whether there are prospects of the matter resolving by agreement on a final basis. This may include an agreement for an Order being in place for a defined period; an agreement that no order will be made; or in an outcome where one or both parties make an Undertaking to the Court to refrain from engaging in family violence.

On what grounds may the Court make a final family violence order?

The Court may make a final order if:

1.      The applicant (the person seeking protection) has reasonable grounds to fear family violence by the respondent (the person that they are seeking to be protected from); or

2.      The respondent has used family violence against the applicant.

The Court can make a final order that is in place for up to two years, but if requested, the Court may make an order for a longer period of time if the Court is satisfied that there are special or exceptional circumstances that justify it.

Will the Family Violence Order only be recognised in the ACT?

Family Violence Orders are nationally recognised and there is no need to apply for separate orders in different states, if for example, you live between NSW and the ACT and wish to ensure that the Order operates irrespective of your location.

For advice in relation to a family violence application, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Is Family Violence relevant in Property Proceedings?

Family violence can absolutely be a relevant factor in property proceedings. Depending on the specific circumstances of each case, a person who has experienced family violence may find that they are entitled to a greater share of the asset pool than they might otherwise have received had they not been subjected to violence.

The effects of family violence can be relevant at several stages of the property settlement process, and must be considered in the context of the case as a whole. In some cases, one party may be able to demonstrate that their contributions to the relationship, either financially or otherwise, were impacted or made ‘more onerous’ by their experience of violence, and so should be given greater weight than the contributions of the other party. In other situations, one party may be able to demonstrate that their experience of violence has had an ongoing impact on their healthcare needs, or will negatively affect their ability to work or care for children into the future. This may lead to them receiving an adjustment in their favour to account for their greater future needs over and above those of the violent perpetrator.

The matter of Coad & Coad [2011] FamCA 622 is a clear example of a case where both of the above situations applied. In this matter, the parties were together for 10 years and had one child. At the time of separation, the Wife was severely assaulted by the Husband and he was convicted of attempted murder, intentionally causing serious injury, and endangering life in respect to a person who came to her assistance. He was sentenced to a lengthy term of imprisonment. During the incident, the Wife suffered a fractured eye socket and cheekbone, a broken nose, and was so severely bruised her child did not recognise her in the hospital. Her cheek had to be reconstructed with a titanium plate, she was not able to see properly for several months, and she had difficulty balancing, breathing and bathing herself. The Judge accepted that not only had the Wife’s injuries made her care of the child after separation more onerous than it ordinarily would have been, she had sustained life-long injuries that would continue to impact her capacity to work and care for her child. The Judge assessed the parties’ contributions at 60% to the Wife and 40% to the Husband, and awarded the Wife a 30% adjustment in recognition of her greater future needs meaning the Wife received 90% of available asset pool.

If you are experiencing family violence, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters. In the case of an emergency, you should call 000.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.