Family Law Amendment (Federal Family Violence Orders) Bill 2021
The submission to the Senate Legal and Constitutional Affairs Legislation Committee (Committee) in relation to its inquiry into the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (the Bill) was prepared by the Law Council of Australia.
The Law Council commends the intent of the Bill, which, as the Attorney-General has stated, is to remove the need for vulnerable people to navigate separate court systems and enable them to receive the required protection when it is needed.1
The Bill would allow the Family Court, Federal Circuit Court of Australia or equivalent Western Australian Court2 (the Family Courts) to make federal Family Violence Orders (FVOs) under the Family Law Act 1975 (Cth) (the Family Law Act) in respect to a victim of family violence (provided they are party to a matter already before the Court), with breach subject to criminal penalty. This would mean the victim need not separately apply for civilly enforceable protection at a state or territory court, which can result in an effective duplication of the trauma, cost and time associated with involvement in such court proceedings.
Recognising the Bill’s laudable aims, the Law Council recommends that the Australian Government clarify a number of key matters before proceeding with the proposed measures. It will then be possible to assess the likely utility of the revised Bill in improving the experiences of victims of family violence and users of the court systems.
This submission addresses the following key issues in relation to the Bill:
- the likely increase in demand for the Family Courts under the proposed FVO regime, and the need for potential resourcing, training and infrastructure necessary to accommodate these pressures;
- the potential for systems abuse where parties may seek to increase the number, length and cost of family law or family violence proceedings through an additional FVO pathway;
- whether the Bill contemplates the making of interim orders, which are essential to ensuring timely protections for victims of violence;
- the potential for additional costs for private litigants, Independent Children’s Lawyers (ICLs) and the legal assistance sector as a result of the measures; and
- the current limitations to effective communication and information-sharing on FVOs between the Family Courts and the state and territory courts.
This submission provides several recommendations as set out below which have been developed to improve the Bill and its likely effect on the family law system. The Law Council observes that there remains uncertainty about how the measures will operate in practice and the demand they may create on the Family Courts, and invites consideration of trialling the scheme in one or two registries, or for a limited time, and evaluating the impact before legislating to make changes on a permanent basis.
You can read the full submission below.
1 Attorney-General Michaelia Cash and Assistant Minister Amanda Stoker, ‘Strengthening protections for domestic violence victims’ (Media Release, 24 March 2021).