Consideration of protection orders and family violence

17.5 The Family Law Act provides that protection orders made under state and territory legislation are relevant to two aspects of decision making about parenting orders:

• when determining what orders are in the child’s best interests pursuant to s 60CC;and

• when ensuring that a parenting order is consistent with a protection order and does not expose a person to an unacceptable risk of family violence pursuant to s 60CG.

The best interests of the child

17.6 Section 60CC of the Family Law Act sets out ‘primary’ and ‘additional’ considerations that a court must have regard to when determining what is in a child’s best interests. The two ‘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 subjected or exposed to abuse, neglect or family violence.^[4]

17.7 Two of the ‘additional considerations’ also refer to family violence. The court must consider:

(a) any family violence involving the child or a member of the child’s family;

(b) any family violence order that applies to the child or a member of the family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person.

17.8 Prior to amendment in 2006, s 68F of the Family Law Act—the former equivalent to s 60CC—directed the court to consider any protection order that applied to the child or a member of the child’s family. Section 60CC(3)(k) now specifies the kinds of protection orders a federal family court can consider when determining what is in a child’s best interests. A court can consider any final protection order—including final orders made by consent, with or without admissions, or uncontested—or any order made after a contested hearing, including both final and interim orders. These amendments were intended to ‘ensure that the court does not take account of uncontested or interim family violence orders’ in order to ‘address a perception that violence allegations are taken into account without proven foundation in some family law proceedings’.^[5]

Concerns about the practical effect of s 60CC(3)(k)

17.9 There are three key practical issues with the operation of s 60CC(3)(k)—first, the weight to be given to protection orders of themselves when determining what is in a child’s best interests; secondly, how the provision affects practices of litigants in protection order proceedings in state and territory courts; and thirdly, how these issues are considered and managed by family lawyers.

17.10 There are different views about the role of protection orders in the assessment of the risk of family violence in determining a child’s best interests in the context of parenting orders. The Chisholm Review described this issue as follows:

By including [protection] orders in this list of matters relevant to the assessment of children’s interests, it might be taken as suggesting that the order itself is a factor that should be taken into account. It then partly retreats from that suggestion by excluding interim and non-contested orders. The rationale is, obviously, that it may be wrong to infer from the making of such orders that there is a risk of violence. But is the implication that the court should infer that there is a risk of violence from the making of final and contested orders?^[6]

17.11 Chisholm was concerned about the weight to be given to the orders of themselves in the particular context of parenting orders.

17.12 Some stakeholders expressed the view that courts, when determining the best interests of a child, should give greater weight to the fact that one of the parties has a protection order. For example, Women’s Legal Services Australia, in a submission to the Chisholm Review, stated that:

In combination with the affidavit evidence of the nature and extent of the violence, judges should also be encouraged to consider [protection orders] as good evidence of the existence of domestic violence. It is unacceptable that orders granted by a jurisdiction to protect the lives of people who have experienced violence not be taken into account in a jurisdiction that, on the balance of probabilities, is charged with the responsibility to determine what parenting arrangements are in the best interests of children.^[7]

17.13 A study by Professor Patrick Parkinson and others (the Parkinson Study), released after the Chisholm Review, on the use of protection orders during post-separation conflict, raised questions about the connection between the fact a person has a protection order and the risk of family violence. The study found that:

[w]hile applicants reported a valid legal basis for applying for family violence orders, orders were also sought for ‘collateral purposes’ such as determining the occupancy of the home on separation or maintaining boundaries between newly separated parents. In certain cases they were used as well for purposes connected with the family law dispute, on legal advice.^[8]

17.14 However, other studies show that victims of family violence only apply for protection orders as a last resort.^[9] The risk of family violence increases at the time of separation, and this risk is heightened when parents meet to facilitate children spending time with each parent, for example during handover arrangements.^[10] In a 2003 study, Kaye and colleagues found that most women who have experienced family violence still want their children to have some contact with the other parent, but seek arrangements which ensure the safety of both themselves and their children.^[11]

17.15 There are concerns that s 60CC(3)(k) of the Family Law Act affects the practices of litigants in state and territory courts. In particular, there is a view—noted in the Parkinson Study and in some consultations and submissions to this Inquiry—that some applicants seek protection orders in order to gain a strategic advantage in family law matters;^[12] and some respondents consent without admissions to the protection order as a tactic to exclude consideration of the protection order in pending family law matters.^[13] As noted in a submission by the Peninsula Community Legal Centre, ‘this practice is concerning as it has the potential to reduce the potency of family violence protection orders and devalue their impact before the federal family courts’.^[14]

Options for reform

17.16 The Parkinson study suggested that consideration should be given to removing the references to protection orders in s 60CC(3)(k) of the Family Law Act. Given that the list of considerations in s 60CC already refers twice to family violence, the authors considered that the additional reference in s 60CC(3)(k) to protection orders was ‘superfluous’. Instead, ‘[w]hat the court will really be concerned with is the substance of the matters with which the [protection order] sought to deal’.^[15]

17.17 The Chisholm Review also emphasised that the court must consider the actual risk of family violence:

the law should do everything possible to enable the court to know about current family violence orders, so it can avoid making orders that inadvertently clash with them. Otherwise what is important is that the court should learn about the factual circumstances that might suggest a risk to the child or other person, regardless of what was the basis of a previous family violence order. As one legal submission pointed out, ‘It is the underlying allegations that are far more important to the Court in determining the case than the existence or otherwise of an order’.^[16]

17.18 The Chisholm Review concluded that the law should ‘avoid creating an impression that the Family Court will draw adverse inferences from the [protection] order itself, rather than on the evidence put before the Family Court’.^[17]

17.19 As discussed in Chapter 16, the Chisholm Review made several recommendations aimed at improving the way in which federal family courts consider allegations of family violence. In particular, the Chisholm Review recommended that the Family Law Act should list a range of factors that a court must take into account when considering the making of parenting orders. Rather than expressly listing family violence, courts would be required to consider, among other things, the child’s ‘safety, welfare and wellbeing’ when making parenting orders. Parents, advisers and courts would then be encouraged to consider the arrangements that are best for the child in each particular case.^[18] The Chisholm Review concluded that, if such reforms were adopted, there would be no need for s 60CC(3)(k) of the Family Law Act.^[19]

17.20 In the Consultation Paper, the Commissions expressed the view that the distinction made in s 60CC(3)(k) between considering final or contested protection orders on the one hand, and interim or uncontested orders on the other, should be removed. The Commissions proposed two options for reform, both of which would remove express reference to protection orders per se and instead focus on the fact of family violence.

17.21 The first option is to remove consideration of protection orders from s 60CC altogether and, instead, rely on a general consideration of family violence when determining what is in a child’s best interests.^[20] In the Consultation Paper, the Commissions noted that, when considering family violence, a family court would be permitted—but not required—to consider any protection order, along with other evidence of family violence on a case-by-case basis. The Commissions noted, however, that a potential disadvantage of this approach may be to decrease the visibility of family violence as a factor in making parenting orders.

17.22 The second option is to include a reference to protection order proceedings, in recognition that many victims of family violence have sought protection orders prior to commencing family law proceedings. This option would require courts to consider any family violence when determining what is in the best interests of a child, but also direct the court to consider any evidence of family violence given in protection order proceedings.^[21] While the policy approach is similar to the first option, the Commissions expressed the preliminary view that framing the consideration in this way may highlight more clearly the weight that courts making parenting orders can give to evidence of violence given in protection order proceedings.

Submissions and consultations

17.23 Most stakeholders who commented on this proposal supported the second option, that is, amending s 60CC(3)(k) to provide that any family violence, including evidence of such violence given in any protection order proceeding, is an additional consideration when determining the best interests of a child.^[22]

17.24 The Australian Domestic and Family Violence Clearinghouse preferred this option because ‘it highlights and validates the outcomes of protection order applications’.^[23] Other stakeholders noted that removing the express reference to protection orders from s 60CC may decrease the visibility of family violence.^[24] For example, Women’s Legal Services NSW submitted that:

Directing judicial officers to consider protection orders as one of the best interest factors avoids the potential situation where a judicial officer does not give any weight at all to the existence of a protection order. Clients have reported … that some judicial officers see protection orders as easy to obtain or as a tactical move for family law proceedings. In combination with the affidavit evidence of the nature and extent of the violence, judicial officers should be encouraged to consider protection orders as good evidence of the existence of family violence.^[25]

17.25 There was also support for removing the distinctions currently made between interim and final protection orders and between contested orders and orders by consent.^[26] The Australian Domestic and Family Violence Clearinghouse noted that removing this distinction would enable

the introduction of other evidence from victims who have been issued with orders arising from cross-applications, as well as other evidence from health care providers, counsellors, refuge workers etc which should be similarly weighted in adducing the factual basis of domestic violence allegations.^[27]

17.26 Similarly, the Queensland Commission for Children and Young People and Child Guardian supported removing the exclusion of interim and uncontested orders on the basis that courts should be free to explore any allegations of family violence in order to properly assess if there is a risk to the child.^[28]

17.27 A number of stakeholders expressed support for the proposal’s focus on the evidence of family violence that lies behind the protection order, regardless of the type of protection order that has been made.^[29] A confidential submission noted that a federal family court

needs to inform itself fully of any acts of violence, particularly where they are occurring as part of a context of power and campaign of controlling behaviour. Where this evidence is available from the proceedings and applications to other courts, this should absolutely be admissible.^[30]

17.28 However, Women’s Legal Services NSW submitted that, when a protection order is made by consent, evidence of the family violence may be limited to the order itself:

many protection orders are consented to because there is little chance the defendant would succeed if the application proceeded to hearing due to the police being able to obtain sufficient evidence of the violence. This means that many of the most serious cases of family violence would involve protection orders made by consent. Unfortunately, as a result of the defendant consenting to the protection order, the police may not investigate further so evidence from witnesses is not obtained. This means that the protection order itself will often be the main contemporaneous evidence available to the judicial officer when determining subsequent parenting proceedings.^[31]

17.29 The Magistrates’ Court and the Children’s Court of Victoria supported the second option, but proposed that it be amended to ensure that findings by a state or territory court hearing an application for a protection order that there has been family violence, as well as evidence given during such proceedings, are taken into account by a court when considering the child’s best interests:

For example, where a court of summary jurisdiction has found, after a contested hearing, that the test for a protection order has been met (that is that the respondent has committed family violence against the affected family member and is likely to do so again) then the court exercising family law jurisdiction should be able to give this due consideration. It is particularly important that if family violence matters have been litigated that they are not re-litigated in another proceeding. Where family violence is at play such re-litigation can be a tactic of further abuse.^[32]

17.30 Legal Aid NSW also supported the second option but proposed that the amendment make clear that the provision covers any family violence involving the child or a member of the child’s family.^[33]

17.31 Some stakeholders noted that protection orders and evidence of family violence given in protection order proceedings may already be considered by a federal family court when determining a child’s best interests. In their submission, the Chief Justice of the Family Court and the Chief Federal Magistrate noted that s 60CC(3)(m) of the Family Law Act allows courts to consider ‘any other fact or circumstance’ when deciding what parenting arrangements would be in the best interests of a child, and this could include evidence that an interim or uncontested family violence order was made.^[34] In addition, the Shared Parenting Council of Australia noted that s 60CC(3)(j) permits a court to take account of any family violence involving the child or a member of the child’s family, which ‘seems to imply that affidavit evidence and any other available evidence could be put forward, even where, for example, the family violence order is only an interim order made ex parte or by consent’.^[35]

17.32 In their joint submission, the Chief Justice of the Family Court and the Chief Federal Magistrate stated that they would not support any proposal to

amend the Family Law Act to include a requirement that family courts take family violence orders into account as evidence of continuing risk, without any independent judicial consideration of the existence, degree or magnitude of that risk.^[36]

17.33 Rather, they expressed a preference for the recommendation made in the Chisholm Review to omit any specific reference to protection orders in s 60CC(3) and instead refer to a child’s safety and wellbeing, on the basis that this appropriately directs the court consider the factual circumstances that might suggest a risk to the child (including risk to a parent), rather than to the fact that a family violence order was in place at some point in time.^[37]

17.34 Although expressing this preference, the Chief Justice of the Family Court and the Chief Federal Magistrate considered that it was a ‘logical approach’ to remove the reference to final and contested protection orders in s 60CC(3)(k). They noted that this would be consistent with div 12A of the Family Law Act and the principles for conducting child-related proceedings, whereby all evidence is conditionally admitted and given the weight considered by the court to be appropriate in the circumstances, having regard to the entirety of the evidence before the court.^[38]

17.35 A number of stakeholders expressed concerns about the potential implications of this proposal on the operation of state and territory protection order regimes. A confidential submission cautioned that there are risks in using protection orders for too many collateral purposes, submitting that:

The purpose for which family violence orders ought to be available is to protect people from violence and intimidation. Care must be taken as far as possible, to remove incentives for them to become weapons in a wider conflict between parents following an unhappy breakup.^[39]

17.36 Concerns were also expressed that such an amendment may reduce the number of protection orders made by consent.^[40] For example, Women’s Legal Services NSW noted that:

Presently, defendants are advised of the implications of s 60CC(3)(k) and WLS NSW understands that some defendants choose not to contest the protection order on the basis of this advice. Accordingly, there is a risk that by amending this section to include all protection orders, there may be an increase in the number of orders being contested.^[41]

17.37 The Law Council of Australia did not support this proposal, citing concerns about the effect on protection order proceedings:

Protection orders, especially interim protection orders, should be readily obtainable without serious investigations into the truth or otherwise of the allegation. Interim protection orders do nothing more than provide a conservative, protective approach to domestic violence allegations. Protection orders generally should not be determinative of parenting orders unless evidence is led in parenting proceedings detailing the domestic violence alleged. Creating situations by which parenting order litigants can manipulate the process by bringing spurious protection order applications will result in a dramatic increase in spurious protection order cross‐applications.^[42]

Commissions’ views

17.38 The distinction made between interim or uncontested orders on the one hand, and final or contested orders on the other, of itself does not reflect the many reasons interim orders do not progress to a final hearing, or the fact that protection orders may be made by consent. An interim protection order may be made for a number of reasons that do not reflect the level of risk, or evidence, of family violence. For example, judicial officers may make interim protection orders until related criminal proceedings are resolved. Similarly, a protection order may be made by consent without admissions so as not to prejudice current or pending criminal proceedings. The Commissions therefore consider that there is no principled basis to exclude these kinds of protection orders, merely because of their form, from consideration by federal family courts determining issues of family violence.

17.39 A state or territory court may make a protection order on the basis of findings that there has been, or there is a risk of, family violence. A court may also make a protection order without making any findings where both parties consent to the order. As such, the Commissions consider that protection orders should not be included as a separate factor to be considered by a court when determining the best interests of the child. Rather, a protection order should act as a flag to parties, their representatives and the court that there may be issues of family violence that should be considered by the court when determining the best interests of the child.

17.40 As noted by a number of stakeholders, when determining what is in the best interests of a child, a court must consider all evidence of family violence and give appropriate weight to that evidence. The legislative guidance in s 60CC(3)(k) of the Family Law Act—which suggests that some, but not all, protection orders are relevant to determining a child’s best interests—is misleading, in that it suggests that courts give more or less consideration to various kinds of protection orders, rather than looking behind those orders to consider all the evidence regarding the nature, impact and risk of past or future family violence. The fact that a victim of family violence has a protection order may be one element in the evidence that a party provides to a family court to support allegations of family violence in the context of consideration of parenting orders. Other evidence could include, for example, affidavit or oral evidence from the victim, statements from police or other witnesses, doctors’ reports or information provided by a child protection agency, and transcripts of magistrates court proceedings, where available.

17.41 The Commissions note the recommendations of the Chisholm Review which would effectively remove any specific reference to protection orders or family violence from the list of matters that a court must consider when determining what is in a child’s best interests. However, given the prevalence of family law matters that raise issues of family violence, and in the light of the consultations and submissions made in the course of this Inquiry, the Commissions are of the view that the considerations for determining what is in a child’s best interests should expressly refer to any family violence involving the child or a member of the child’s family. The Commissions therefore go further than the Chisholm Review in this regard.

17.42 The Commissions also consider that it is important to recognise that, in many cases in which family violence is an issue, a victim of family violence will often have sought a protection order from a state or territory magistrates court. The court making the protection order, will, in many cases, have considered evidence provided by the parties in support or opposition to the order, such as affidavits or oral testimony. Directing a court to consider that evidence—in addition to any other evidence of family violence given in the family law proceeding—will minimise the duplication of evidence and the need for victims of family violence to retell their stories in different courts.

17.43 In some cases, a state or territory magistrates court may also have made findings after a contested hearing that there has been family violence and there is a risk of further family violence. While it is up to the court to determine what weight to give to such evidence, the Commissions consider that such findings should be given due consideration by a family court determining what is in the best interests of the child when making a parenting order. This also avoids the prospect of the issue of family violence being re-litigated where a court has already made findings of violence.

17.44 While they overlap and interact in varying ways, protection orders and parenting orders fulfil two distinct purposes—and the issues are often considered at different times, possibly at considerable remove from each other. The focus of protection order proceedings must be the protection of persons who are at risk of family violence. State and territory magistrates courts only make family violence protection orders when satisfied, on the evidence, that the grounds for making the protection order are met. As part of this process, such courts assess the person’s risk of family violence and make appropriate orders. If an application for a protection order does not meet these grounds, the court dismisses the application. Family law proceedings for parenting orders must focus on the parenting arrangements that are in the best interests of the child—and at the time that such matters are being considered, which may be much later than any proceedings for protection orders in the magistrates courts.

17.45 The Commissions are of the view that the Family Law Act should be amended to direct courts, when determining the best interests of a child, to consider any family violence involving the child or a member of the child’s family—including evidence given, or findings made, in any protection order proceeding. This amendment may also go some way to address the perception that the mere fact that a person has a protection order is, of itself, critical to the outcome of parenting matters.

Ensuring orders do not expose a person to a risk of family violence

17.46 Inconsistency between parenting orders and protection orders may occur, for example, if a protection order prohibits one parent from coming within a specified distance of the other parent’s home, while a parenting order allows the parent to collect and return the children at the home. The Family Law Act has a number of provisions that address issues of possible inconsistency of parenting orders with protection orders:

• s 60CG—ensuring parenting orders are consistent as possible with protection orders;

• s 68P—where an inconsistent parenting order is made, requiring a detailed explanation of how the contact specified in the order is to occur; and

• s 68Q—allowing for a declaration that a protection order is inconsistent with a parenting order.

Section 60CG of the Family Law Act

17.47 In addition to considering any family violence or risk of family violence when determining what parenting orders are in a child’s best interests, s 60CG of the Family Law Act expressly requires that federal family courts must also ensure that a parenting order is consistent with a protection order and does not expose a person to an unacceptable risk of family violence, ‘to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration’.^[43] The provision also allows the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.^[44]

17.48 While it may be unlikely in practice, it is possible for a federal family court to make a parenting order that is inconsistent with a protection order when it is not made aware of the existence of a protection order made under state or territory family violence legislation. In Chapter 30, the Commissions make a number of recommendations to improve information sharing between courts, and in particular to ensure that federal family courts are made aware of existing protection orders. The Commissions consider that by improving courts’ awareness of relevant orders made in other courts, they will be less likely to inadvertently make inconsistent orders.

17.49 In some circumstances, while the federal family court may be aware of the terms of the protection order it may, nonetheless, decide to make an inconsistent parenting order because it has come to a different view of the risk of violence on the evidence before it, or considers that it is in the child’s best interests to spend time and communicate with both parents notwithstanding the protection order. The focus of this section is on the rules and principles that apply when a federal family court deliberately makes a parenting order that is inconsistent with an existing protection order.

17.50 Chapter 16 discusses the reverse situation of how state and territory magistrates courts, when making or varying a protection order, can address inconsistencies between the protection order and an existing parenting in order to ensure that the parenting order does not put a person at risk of family violence. Because a parenting order will override an inconsistent protection order,^[45] the obligations on federal family courts when faced with inconsistent orders differ from the obligations and powers of state and territory courts.

17.51 In Chapter 16, the Commissions discuss the problematic operation of s 60CG where a court determines, having regard to all the relevant considerations, that it is in the best interests of a child to spend time or communicate with a parent who has used, or threatened to use family violence against a family member other than the child. The Commissions express the view that a parenting order should not operate to place a person at risk of family violence, and that the best interests of a child should not be given priority over the protection of another person from family violence.

17.52 In Chapter 16, the Commissions recommend that, where there are issues of family violence, and whether or not there is a current protection order in place, courts making parenting orders should undertake a two-step process, in which, after determining what parenting orders would be in the child’s best interests, the court also considers the effect of those orders on the safety of other family members from family violence. If the parenting order operates to place a person at risk of family violence, the court should make the amendments necessary to the order to ensure that the person is protected from an unacceptable risk of family violence. When considering these amendments, the court should consider what is necessary for the safety of those affected by the order and the best interests of the child should not be the paramount consideration.

17.53 A further complication is that, because a protection order is invalid to the extent that it is inconsistent with a parenting order,^[46] breach of the invalidated conditions in the protection order is technically not a criminal offence, and such conditions cannot be enforced by police. So even where a court includes safeguards in a parenting order to ensure a person other than the child is protected from family violence, if such conditions are inconsistent with a protection order, they cannot be enforced by police. Where it is necessary to protect a person from family violence, federal family courts should consider issuing an injunction for the personal protection of that person, as well as including conditions in the parenting order. In the second part of this chapter, the Commissions make recommendations relating to the ability of federal family courts to make enforceable injunctions for personal protection.

Section 68P of the Family Law Act

17.54 As set out in the Explanatory Memorandum for the amending legislation that introduced s 68P, the provision

places obligations on the court to explain to the parties affected (or arrange for someone else to explain to them), the effect and consequences of the order and how it is to be complied with.^[47]

17.55 Where a court makes a parenting order that is inconsistent with an existing protection order, the order must state that it is inconsistent with an existing protection order and provide a detailed explanation of how the contact specified in the order is to occur.^[48] The court must also explain to the parties:

• the purpose, effect and consequences of the order;

• the court’s reasons for making an inconsistent order; and

• the circumstances in which a person may apply for variation or revocation of the order.

17.56 Section 68P also requires the court ‘as soon as practicable’, and no later than 14 days, after making the parenting order to provide a copy of the order to: the parties; the registrar or other appropriate officer of the court that last made or varied the protection order; the Commissioner for Police; and a child welfare officer in the relevant state or territory. Failure to comply with the requirements in s 68P does not, however, affect the validity of the parenting order.^[49]

17.57 The Family Court’s Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged (Best Practice Principles) include a checklist for judicial officers, setting out the issues that need to be considered when making parenting orders in cases where family violence has been alleged. While the checklist notes that a court will generally need to consider the extent to which a parenting order is inconsistent with an existing family violence order, it does not draw attention to the procedural requirements in s 68P that follow if the court makes an inconsistent parenting order.^[50]

17.58 The review of div 11 of the Family Law Act by Kearney McKenzie and Associates in 1998, noted that while it is ‘clearly desirable’ for people affected by a court order to be given the information required under s 68P, these obligations do

not, however, reduce the risk that a woman who is losing the protection of her family violence order will be exposed to violence. Information about the circumstances in which she can apply to have the contact order changed or revoked may help her avoid repeated violence. The most effective requirement in [the provisions requiring federal family courts to give parties certain information] is the requirement that the judge or registrar include details of how the contact should take place. … In cases where there is violence between the parties, detailed contact orders reduce the opportunities for harassment of one party by another, for example, by constant telephone calls to make arrangements for contact.^[51]

17.59 In the Consultation Paper, the Commissions sought stakeholder views about the operation, in practice, of the requirements in s 68P of the Family Law Act, and whether any reforms are necessary to improve the operation of the provision.

Section 68Q of the Family Law Act

17.60 Section 68Q of the Family Law Act allows parties to parenting proceedings and persons subject to, or protected by, a protection order under state or territory family violence legislation, to apply to a court for a declaration that a protection order is inconsistent with a parenting order. The Explanatory Memorandum for the amending legislation that introduced s 68Q stated that it is ‘an important provision which clarifies the relationship between family law orders which provide for a child to spend time with a person and State or Territory family violence orders’.^[52]

17.61 In the Consultation Paper, the Commissions asked how frequently s 68Q was used in practice, and whether it was working effectively.^[53]

Submissions and consultations

17.62 A number of stakeholders commented on how rarely s 68P was used in practice.^[54] The Queensland Law Society suggested that this may be because protection orders typically have an exception for orders made under the Family Law Act, meaning that formal inconsistency between orders does not arise.^[55]

17.63 Some stakeholders noted that, in their experience, some of the requirements of s 68P are followed where there is a final hearing. The Queensland Law Society and Legal Aid NSW both noted that where a matter is contested to final hearing, judicial officers will provide reasons why an inconsistent parenting order has been made.^[56] National Legal Aid and Legal Aid NSW commented that the explanation of the orders given by the court is more detailed if parties are unrepresented.^[57] Peninsula Community Legal Centre commented that, where family law orders are inconsistent with protection orders, parties are advised that the family law order will prevail over the protection order to the extent of the inconsistency.^[58]

17.64 However, Women’s Legal Services Australia submitted that the situation is different in interim hearings in federal family courts, in which the ‘lack of court time and resources allocated to interim hearings mean that family violence issues cannot be assessed comprehensively’.^[59]

17.65 Women’s Legal Services Australia and Women’s Legal Services NSW commented on the importance of s 68P, in that it

ensures the family court undertakes a valuable process: first, judicial officers are directed to consider the implications of their orders and ensure that there are no unintended consequences; and second, steps are taken to make certain that affected people clearly understand the full impact of the family law orders.^[60]

17.66 However, the Family Violence Prevention and Legal Services Victoria noted that the process under s 68P was cumbersome, and submitted that:

It would be better if the Family Court could amend the [protection] order or send the proposed variation to the Magistrates Court to make a new order. There is a lot of to and fro-ing when orders are being varied between Courts. It is very problematic, confusing for parties involved and demanding on limited resources.^[61]

17.67 Some stakeholders noted that ss 68P and 68Q, which require courts only to acknowledge inconsistency, do not necessarily achieve safety for victims of family violence, and submitted that the Family Law Act should prohibit courts from making orders which are inconsistent with protection orders made under state and territory family violence legislation.^[62] Other stakeholders commented on the need, when making parenting orders, for federal family courts to recognise and address issues of family violence.^[63]

17.68 While fewer stakeholders commented on the use of s 68Q of the Family Law Act, many noted that it was rarely used in practice.^[64]

Commissions’ views

17.69 Section 68P of the Family Law Act contains an important procedural requirement in that it requires courts to highlight and explain any inconsistency between a parenting order being made by the court and a current protection order. The Commissions consider that it is particularly important that parties are aware that, in such circumstances, the protection order is invalid to the extent that it is inconsistent with the parenting order.^[65]

17.70 The Commissions consider that the procedural requirements in s 68P are valuable, in that they draw the parties’ attention to the fact that orders are inconsistent. From the submissions to this Inquiry, the Commissions note that s 68P appears to be little used in practice, and suggest that one way to encourage courts to follow the requirements in s 68P when making both interim and final parenting orders that are inconsistent with a protection order would be to include a prompt about the requirements in the Family Court’s Best Practice Principles.

17.71 The Commissions note that s 68Q also appears to be used infrequently. This may be because, while a declaration of inconsistency between a protection order and a parenting order would provide clarity, it does not necessarily address the implications of any inconsistency—specifically, the risk that a person is exposed to family violence. As noted above, the Commissions have recommended an amendment to s 60CG to ensure that federal family courts separately consider and address any risk that parenting orders expose a person to family violence. In addition, later in this chapter, the Commissions recommend that federal family courts have power to issue injunctions for personal protection, breach of which is a criminal offence.

Parenting orders made by consent

17.72 Where parenting orders are made with the consent of both parties, there are concerns that issues of family violence do not come to the attention of the court, or are insufficiently considered, and so cannot be adequately addressed.

17.73 The issue of consent orders is expressly covered in the Family Court’s Best Practice Principles, which set out the matters that courts should consider when parties propose parenting orders by consent that provide for a child to spend time with a person against whom family violence allegations have been made. The considerations include an assessment of:

• the seriousness of the allegations;

• whether the child has been involved in or exposed to violence;

• whether the parent against whom violence is alleged is seeking to spend time with the child as a way of continuing to control or maintain contact with the other parent; and

• whether it is clear that the parties have agreed to the order without pressure from others.^[66]

17.74 The Best Practice Principles suggest steps that the court may take if it has concerns about the proposed consent orders, including ordering the preparation of a family report; ordering the appointment of an independent children’s lawyer; requesting an interview by a family consultant; hearing further evidence; or referring one or both parents to an appropriate service and adjourning the proceedings.^[67]

17.75 Where parties have commenced parenting proceedings, and allegations of child abuse have been raised, r 10.15A of the Family Law Rules 2004 (Cth) requires the party, or the party’s lawyer, to advise the court of the allegations, and to explain to the court how the order attempts to deal with the allegations.

17.76 The Chisholm Review suggested that consideration should be given to applying the requirements in r 10.15A to matters in which consent orders are sought where there are allegations of family violence, and introducing a similar rule to matters heard in the Federal Magistrates Court (FMC).^[68] In the Consultation Paper for this Inquiry, the Commissions proposed that the Family Law Rules should be amended to implement the suggestions made in the Chisholm Review.^[69] There was widespread support among stakeholders for this proposal.^[70]

17.77 Since the time of writing the Consultation Paper, r 10.15A of the Family Law Rules has been amended so that it applies to matters in which allegations of family violence, as well as child abuse, have been made.^[71] In their submission in this Inquiry, the Chief Justice of the Family Court and the Chief Federal Magistrate noted that the Family Court and FMC Family Violence Committee has formed the view that the rule should also be adopted in the FMC, and the proposed amendment has been referred to the FMC Legal Committee.^[72]

17.78 Rule 10.15A does not apply, however, where parties apply for consent orders without commencing proceedings in the Family Court. The Application for Consent Orders form, which can be used in the Family Court and FMC, asks whether the parenting orders sought are consistent with any current protection order.^[73] In their submission, the Chief Justice of the Family Court and the Chief Federal Magistrate noted that registrars in federal family courts regularly requisition consent orders where this question is answered ‘no’, and will often determine not to approve such orders in chambers and either dismiss the application or list the matter before a judicial officer for consideration.^[74] The Application for Consent Orders Kit published by the Family Court states that if the proposed consent orders are inconsistent with an existing protection order the matter must be heard in court. The Kit also advises parties to seek legal advice in this situation.^[75]

17.79 The Federal Magistrates Court Rules 2001 (Cth) do not include a procedure for the court to make parenting orders by consent where no proceedings have been commenced. The Chisholm Review reported anecdotal evidence that, in practice, court officers at the FMC direct parties to apply to the Family Court when they seek to make consent orders without instituting parenting proceedings.^[76]

17.80 In the Consultation Paper, the Commissions asked how often federal family courts make consent orders that are inconsistent with current protection orders without requiring parties to institute parenting proceedings. The Commissions also asked whether the policy in the Application for Consent Orders Kit to require parties to institute parenting proceedings where they propose consent orders that are inconsistent with current protection orders should be reflected in the Family Law Rules.^[77]

Submissions and consultations

17.81 Stakeholders raised a number of concerns about consent orders, including the incidence of inconsistent orders made by consent, the impact of the costs of contested litigation and a concern that some parties are pressured or intimidated into consenting to parenting orders that expose them to a risk of family violence.

17.82 A number of stakeholders commented that it is difficult to judge how often parenting orders that are inconsistent with protection orders are made by consent.^[78] Women’s Legal Services Australia submitted that while it did not have statistics on the incidences of federal family courts making consent orders that are inconsistent with protection orders without requiring parties to institute parenting proceedings,

anecdotal evidence obtained from women accessing our services would seem to indicate that there is a significant group of women who have parenting orders made that are inconsistent with protection orders.^[79]

17.83 Some stakeholders expressed concerns about victims of family violence consenting to parenting orders that place them at risk of further violence, either because of the costs pressures associated with court hearings and encouragement to settle matters,^[80] or because of threats and intimidation by the other parent.^[81]

17.84 There was some support for a proposal that parties be required to institute parenting proceedings where they propose consent orders that are inconsistent with current protection orders.^[82] However, some stakeholders expressed concerns that the proposal would force people into litigation which they cannot afford.^[83] Women’s Legal Services NSW noted that:

Legal aid is extremely limited, and the potential cost of court proceedings can be very high, especially in complex cases such as those involving family violence. This is exacerbated by legal aid merit assessments. Some clients have had difficulties meeting the merit criteria where they have raised concerns about domestic violence and seek to limit the time the other parent spends with children due to a perception that their case does not have good prospects of success.^[84]

17.85 Some stakeholders suggested other ways to prevent federal family courts making parenting orders by consent that are inconsistent with current protection orders, including a requirement that applications be accompanied by a statement of agreed facts or an affidavit explaining why the inconsistency should be allowed;^[85] or a requirement that parties appear before the court in cases where inconsistent orders are proposed.^[86]

Commissions’ views

17.86 The Commissions support the amendments that have been made to r 10.15A of the Family Court Rules to require that parties, or their legal representatives, must advise the court if any allegations of family violence, or risk of family violence, have been raised in the proceedings, and, if so, explain to the court how the order deals with those allegations. The Commissions also support the pending application of this rule to matters heard in the FMC. Such amendments will ensure that parties and courts turn their minds to the effect of inconsistent orders and, in particular, the fact that conditions in the protection order that are inconsistent with the parenting order are invalid.

17.87 The Commissions do not consider that an amendment to the Family Law Rules to require parties to institute parenting proceedings where they propose consent orders that are inconsistent with current protection is necessary. The Commissions note the advice in the submission from the Chief Justice of the Family Court and the Chief Federal Magistrate about current court procedures for identifying inconsistencies—where parties seek parenting orders that are inconsistent with a protection order, the registrar will consider the matter closely, and may refer the matter to a judicial officer for consideration. In the Commissions’ view, this process means the court retains flexibility to deal with the circumstances of each case and will not necessarily require parties formally to commence litigation.

Parenting orders made in interim proceedings

17.88 The Chisholm Review considered that ‘one of the greatest practical problems in cases involving family violence is what to do in interim cases’.^[87] Where allegations of family violence are raised in interim proceedings, there is often little corroborative evidence and limited opportunity to cross-examine witnesses, meaning that

the judicial officer will often be unable to make a finding about the likely truth of the allegations, and thus unable to reach a confident view about what arrangements are likely to be best for the children in the period—which may well be many months—before the final hearing.^[88]

17.89 The Family Court’s Best Practice Principles set out some matters that federal family courts should consider when making interim parenting orders in cases where there are disputed allegations of family violence. These considerations include the likely risk of harm to the child if the child spends time with a parent against whom allegations of family violence have been made; and the kinds of conditions that may be included in an interim parenting order.^[89]

17.90 In the Consultation Paper, the Commissions asked whether any additional measures are necessary to ensure that allegations of family violence are given adequate consideration in interim parenting proceedings in federal family courts.^[90] Stakeholders suggested a range of measures, with many submitting that risk assessment processes in the federal family courts would enable courts to be made aware of, and better understand and address, family violence issues in interim proceedings.^[91]

17.91 The Chisholm Review also considered that some improvement to the consideration of family violence in interim proceedings may result from a systematic screening for family violence and also ‘from improved educational opportunities for court staff, lawyers and other professionals, and additional guidance such as is contained in the Best Practice Principles’.^[92] The review suggested, however, that the problems posed in interim proceedings, especially those involving allegations of violence, were ‘not primarily related to the performance of judicial officers’,^[93] but was a wider issue:

Additional judicial and other resources will be required if we wish to improve the family courts’ ability to protect children, especially from the consequences of important decisions based on inadequate and untested evidence, that might expose the children to risk of harm, whether by being exposed to the risk of violence or by being separated unnecessarily from a parent. Children would undoubtedly be much safer if through legal aid or otherwise the parties and the children were properly represented, and the number of judicial officers was such that each case could be given the attention it deserved, without causing unacceptable delays in the hearing of other cases.^[94]

17.92 As a consequence, the Chisholm Review recommended that the Australian Government consider providing federal family courts with the additional resources necessary to ensure that adequate attention can be given to children’s cases in interim proceedings, especially cases involving allegations of family violence.^[95]

17.93 While the Commissions acknowledge concerns that in interim proceedings courts do not necessarily have the information to assess issues of family violence comprehensively, the Commissions consider that the interaction issues that arise in interim proceedings are the same as those that arise across all parenting proceedings involving issues of family violence, which are discussed elsewhere in this chapter. As such, the Commissions refer to the recommendations of the Chisholm Review in relation to interim proceedings and do not make any additional specific recommendations for reform of interim parenting proceedings.

Relocation and recovery orders

Relocation orders

17.94 As noted in Chapter 15, relocation disputes are a type of parenting dispute that may arise when one parent, with whom a child lives, wants to move to another location, which may limit the other parent’s opportunity to spend time with the child. The Family Law Act does not expressly address relocation issues. Relocation disputes are determined in accordance with the general parenting order provisions in the Family Law Act. The best interests of the child is the paramount consideration in relocation matters, consistent with all parenting proceedings. As discussed above, family violence is a relevant consideration in determining the best interests of the child in accordance with ss 60CC and 60CG of the Family Law Act.

17.95 Stakeholders have raised significant concerns that, in practice, relocation orders are being refused where a parent and his or her children are at risk of exposure to family violence, illustrated by the following case study commentary:

One woman who had two young daughters lived with her partner (their father) in a remote community in NT. She had primary responsibility for the care of the girls. She had experienced economic abuse combined with physical abuse throughout her relationship with her partner but finally had the courage to leave him. At that point he started to make threats to kill her. She moved, with their two daughters, into local domestic violence crisis accommodation. The crisis accommodation staff were so concerned for her safety that they organised a rare emergency evacuation to Darwin for her and the girls through a domestic violence legal service. The father then told the court that she had relocated the girls without his consent. In spite of the surrounding circumstances, the judge ordered the woman to return to the remote community she had been evacuated from.

The clear disregard of the woman’s safety to one side, there did not seem to be any concern about the appropriateness of the father’s style of parenting whereby children were witnessing acts of domestic violence and whether, in the balance of things, it was appropriate to disrupt the rest of the family for the sake of access by him to the children. Women who have experienced violence are all the more in need of extended family support, which may only be available outside of the Territory. Many times they have moved to the Territory to be with the man, leaving behind all family and friend networks. The support they get from these networks feeds directly into their ability to be good parents and it may well be in the best interests of the child for relocation in circumstances of [family violence] to be viewed more sympathetically. Refusal to consent to relocation is a prime opportunity for violent partners to retain a pattern of abuse and control of their partner after the relationship has ended. Domestic violence needs to be taken into account in a more significant and central way where relocation is being contested.^[96]

17.96 Some literature suggests that some victims choose not to raise allegations of family violence in relocation proceedings. A review of 50 relocation matters heard in the federal family courts from 2003–08 considered the implications of the 2006 shared parenting reforms. It reported that, in the pre-2006 cohort, in all but one case in which allegations of violence by the father towards the mother were accepted as true and relevant to the best interests of the child, the mother was given permission to relocate immediately. In three cases post-2006, where the woman wanted to relocate, a prior history of violence was acknowledged. Two of these mothers were successful in their request to relocate.^[97]

17.97 The authors of the review extrapolated from these findings that, when the court acknowledges family violence, it will outweigh the requirement for a ‘meaningful relationship with both parents’. However, they went on to discuss the small number of cases in the post-amendment sample in which allegations were raised about a past history of violence, commenting that:

This is one of the more interesting and unexpected findings of our study. Perhaps the ‘gatekeepers’ are advising clients that relocations are more likely to be allowed where there is family violence, leading to these matters not getting to court, or perhaps movers who have experienced family violence are more reluctant to make such allegations in the post-2006 legislative climate.^[98]

17.98 In 2006, the Family Law Council recommended to the Attorney-General that additional provisions should be inserted into the Family Law Act to deal specifically with relocation. The recommended provisions included that a court should consider what parenting arrangements could be made if a party were to relocate to ensure that the child maintains a meaningful relationship with both parents, to the extent consistent with the need to protect the child from physical or psychological harm. In justifying its recommended provisions, the Council commented that:

Proposed arrangements must be consistent with the object … of protecting the child from physical or psychological harm. Council believes that it is useful to specifically refer to this object here, in light of the submissions received about some relocations being motivated by the need to escape violence and/or abuse.^[99]

17.99 In its submission to that inquiry, Women’s Legal Services Australia argued that family violence should be accorded a much greater weight in relocation orders:

In our view, the guidelines should emphasise that, in cases where there has been family violence, it is likely to be in the best interests of the child for the resident parent to be able to relocate a safe distance from the perpetrator. The United States National Council of Juvenile and Family Court Judges’ Family Violence Model State Code provides a model that could be adapted for this purpose. The Code provides for a rebuttable presumption that it is in the best interests of the child to reside with the parent who is not the perpetrator of violence in a location of that person’s choice, within or outside the state.^[100]

17.100 The 2010 judgment of the High Court in MRR v GR may influence the determination of future relocation disputes. In that case, a mother appealed a parenting order made by the FMC for the parents to have equal shared responsibility for the child and for the child to spend equal time with each of them. The orders were made on the basis that—contrary to the mother’s expressed wish to return to Sydney—both parents would live in Mount Isa. The High Court held that, in the circumstances, equal time parenting was not ‘reasonably practicable’ under s 65DAA of the Family Law Act. The Court’s decision was influenced by the mother’s lack of appropriate accommodation, limited opportunities for employment and isolation from her family. The matter was remitted to the FMC for a new hearing.^[101]

Recovery orders

17.101 Recovery proceedings may arise when one parent relocates with a child or children. As discussed in Chapter 15, courts exercising jurisdiction under Part VII of the Family Law Act may make recovery orders requiring the return of a child, typically to a parent.^[102] The Australian Federal Police are generally authorised by the order to recover the child. Section 67V of the Family Law Act makes clear that a court must regard the best interests of the child as the paramount consideration when making a recovery order. The note to the section points out that ss 60CB to 60CG deal with how a court determines ‘best interests’, which leads to s 60CC and the primary and secondary considerations relevant to the best interests of the child. Sections 60CC and 60CG are discussed in detail above.

Consultation Paper

17.102 In the Consultation Paper, the Commissions sought stakeholder feedback on whether issues arise in practice from the interaction between protection orders and relocation orders or allegations of family violence. The Commissions also sought stakeholder views as to whether any additional legal or practical reforms are needed to address issues related to the practical interaction of protection order proceedings and relocation disputes. In particular, the Commissions asked whether there should be a presumption that, in cases where a federal family court determines there has been family violence, it is likely to be in the best interests of a child to be able to relocate to a safe distance from the person who has used violence. If such a presumption were to be introduced, the Commissions asked whether it should be included in legislation or in policy—for example, in the Best Practice Principles.^[103]

17.103 The Commissions also asked whether the Family Law Act should be amended to include provisions dealing with family violence in relocation matters, over and above the provisions of the Act that apply to family violence in parenting proceedings generally;^[104] and whether any legal or practical reforms in the context of relocation disputes should apply in all or only some cases of family violence—and, if so, how this should be determined.^[105]

17.104 In relation to recovery orders, the Commissions asked whether the Family Law Act should be amended to include provisions dealing with family violence in recovery matters, in addition to the provisions of the Act that apply to family violence in parenting proceedings.^[106]

Submissions and consultations

Family violence and relocation

17.105 Stakeholders identified that family violence was a common reason that women wish to relocate with their children. The Magistrates’ Court and the Children’s Court of Victoria reported that magistrates who sit regularly in the jurisdiction ‘report applicants seeking to relocate away from family violence perpetrators’.^[107]

17.106 Similarly, several other stakeholders also noted that victims of family violence may relocate in order to be a safe distance from the person who uses family violence.^[108] The Queensland Law Society submitted that the shortage of refuge accommodation may prompt relocation, as victims who need to live in refuges have to move to a different part of the state.^[109] A number of stakeholders commented that some victims relocate following family violence and relationship breakdown to be closer to their family and support networks.^[110] Women’s Legal Centre (ACT & Region) Inc noted that ‘many women are isolated from their families as part of the cycle of domestic violence.^[111]

17.107 Some groups may be particularly affected by relocation issues. One regional legal service drew attention to the particular problems leading to relocation from rural and remote communities, which may be ‘too small for [women] to remain living in close proximity to the offender safely’.^[112] The Aboriginal Family Violence Prevention and Legal Service Victoria reported that relocation was a significant issue for their client group, and that ‘family violence is regularly involved along with cultural issues—connection with family and country’.^[113]

17.108 A concern expressed by two stakeholders was that the safety of the victim of family violence was being put second to the interest of the other parent, who had used family violence, in maintaining a relationship with the children.^[114] Stakeholders also submitted that allegations of family violence were not given enough weight in relocation proceedings.^[115] For example, Professor Patricia Easteal, drawing on her research in this area, argued that judicial officers often do not accept that violence has occurred, or that it is relevant in making a determination.^[116]

17.109 Several women’s legal services attributed the emphasis on shared parenting in the 2006 reforms to the Family Law Act to greater restrictions on relocation.^[117] The Women’s Legal Centre (ACT & Region) Inc, for example, commented that:

Because of the ‘friendly parent’ provisions it has been a risky strategy to run the argument that puts forward the primary reason for relocation as being the wish to get away from the violent parent.^[118]

17.110 The Women’s Legal Service Victoria compared the approach in child protection cases under state and territory child protection legislation, where a parent was expected to be ‘protective’ of his or her children, with their experience with respect to the family courts’ consideration of relocation matters.

The Child Protection system usually interprets a parent preventing a violent parent from having contact, minimising contact by relocation as being protective. They are approaching it strictly from a child centred point of view so there is no conflict with the idea of parental involvement.^[119]

17.111 Stakeholders described the impact on victims of family violence where their applications to relocate were unsuccessful. Victims may be deprived of the support of family and friends,^[120] may be exposed to further family violence,^[121] and may feel trapped by the family court orders or their situation.^[122] Such circumstances may also enable persons who use family violence to ‘maintain a pattern of domination and control’ over the victim of family violence.^[123]

Presumption in favour of relocation

17.112 Stakeholders were divided in their response to the question of whether there should be a presumption—in cases where a family court determines there has been family violence—that it is likely to be in the best interests of a child to be able to relocate to a safe distance from the person who has used violence.

17.113 A number of stakeholders supported the introduction of such a presumption, for the range of reasons discussed above.^[124] Women’s Legal Services Australia and Women’s Legal Services NSW—while considering that the application of a presumption would be beneficial—expressed a number of concerns, including that a presumption

may send the message that it is enough simply to relocate away from a perpetrator. Victims will almost always experience ongoing fear and it can be hard to establish a ‘safe distance’, particularly when there is emotional or psychological abuse.^[125]

17.114 They pointed out that some victims do not wish to relocate, and these victims should not be made to feel that fleeing is their only option. They stated:

if a presumption is introduced it must be clear that the presumption will not apply if the victim does not wish to relocate. The effect of the legislation must not replicate the power imbalance that has been present in the violent relationship or cause victims to feel that they are still not in control of their own lives.^[126]

17.115 Women’s Legal Services Australia and Women’s Legal Services NSW also argued that judicial officers should be prepared to make orders that do not provide for the person who has used family violence to spend time with or communicate with the children.

17.116 Other stakeholders opposed the introduction of this presumption.^[127] Stakeholders who held this position generally disagreed with a limitation on the discretion of judicial officers to weigh up ‘the individual facts and merits of each case’.^[128]

17.117 The Department of Premier and Cabinet, Tasmania, argued that the principal issue in relation to relocation and family violence is ‘the quality and cogency of the allegations of family violence’.^[129] It expressed concern that introducing a presumption may devalue other considerations in relation to the best interests of the child, and that due to the ‘complexity and variety of situations, a presumption is difficult’.^[130]

Amending the Family Law Act to include provisions on relocation and family violence

17.118 There was support from a range of stakeholders, expressed in general terms, for amending the Family Law Act to make express reference to family violence with respect to relocation.^[131] Other stakeholders provided more detail. For example, the Aboriginal Family Violence Prevention and Legal Service Victoria urged the inclusion of ‘cultural issues’ as well as family violence.^[132]

17.119 Professor Patricia Easteal agreed with an amendment to the Family Law Act, while indicating that such reform would not be sufficient to address the issue: ‘that isn’t going to solve the problem of judges not accepting either that the violence took place or was serious enough to be relevant’.^[133]

17.120 Some stakeholders opposed an amendment to the Family Law Act to include additional provisions dealing with family violence in relocation cases. Several stakeholders argued that the issue of family violence is adequately addressed by the general parenting provisions, and in particular the considerations relating to the best interests of the child pursuant to s 60CC.^[134] In a joint submission, the Chief Justice of the Family Court and Chief Federal Magistrate submitted that

it is well accepted that although relocation disputes may have particular features or complexities when compared with parenting cases generally, they are nevertheless still parenting cases and should be governed by the principles, objects and best factor considerations that apply to all parenting disputes.^[135]

17.121 Their Honours stated that the Family Law Act is sufficiently flexible to deal appropriately with family violence allegations in relocation cases, referring in particular to the ‘references to family violence in the objects, primary and secondary considerations’.^[136]

17.122 Several stakeholders expressed concern that such an amendment may result in increased complexity.^[137] For example, the Department of Premier and Cabinet, Tasmania, suggested that this may be an unintended consequence of an additional provision relating to relocation and family violence. Further, the Chief Justice and Chief Federal Magistrate stated that:

Part VII of the [Family Law Act] is already a complex and cumbersome piece of legislation to navigate. In this respect the recommendation of Professor Chisholm (recommendation 3.8) that the government undertake a revision of Part VII with a view to clarifying and simplifying the law, is supported. Further fragmentation of Part VII through the insertion of ‘relocation case specific considerations’ would be undesirable for that reason.^[138]

17.123 Their Honours referred to the submission of the Family Court of Australia to the Family Law Council in its report on relocation:

amendments to the Act which effectively quarantine relocation cases from other children’s cases may create a more fragmented and complex legislative regime, as well as encouraging threshold litigation around whether a particular proposal is a ‘relocation’ (thereby attracting the application of specific criteria) or a ‘reaccommodation’.^[139]

17.124 While National Legal Aid was not opposed to the introduction of specific provisions in relation to family violence and relocation, it submitted that this ‘should be approached with caution’.^[140] It argued that family violence may not be the only relevant consideration in proceedings, and given the complexity of relocation cases, each should be ‘dealt with on their particular facts’.^[141]

Cases in which relocation-specific provisions should apply

17.125 There were varied responses as to which types of cases a presumption, or relocation-specific provisions of the Family Law Act, should apply. Wirringa Baiya Aboriginal Women’s Legal Centre Inc considered that the presumption should apply in cases where there has been physical violence, but was unsure of whether the presumption should apply in other matters.^[142] The Women’s Legal Service Victoria submitted that this issue should be determined by further reviews.^[143]

17.126 The National Council of Single Mothers and their Children Inc argued that relocation-specific provisions should apply in all cases of family violence:

it is our experience that whilst sometimes acknowledging family violence, the severity of violence is often minimized and its impact on women and children often underestimated by the family law system and therefore any accommodation for the varying severity and nature of the violence is likely to underrate the levels and impact of violence.^[144]

17.127 The Department of Premier and Cabinet, Tasmania, and the Law Council of Australia submitted that there are problems identifying the types of cases in which a presumption that should apply.^[145] The Law Council of Australia stated that:

there is a broad spectrum of behaviours that constitute family violence and attempting to define circumstances in which the presumption should or should not apply would be very difficult.^[146]

17.128 Another threshold issue was identified by the Law Council of Australia, in relation to the suggested presumption that it is likely to be in the best interests of the child to be able to relocate to a safe distance from the person who used violence. The Council queried how a ‘safe distance’ would be legislatively defined.^[147]

Amending the Family Law Act to include provisions on recovery and family violence

17.129 A number of stakeholders supported an amendment of the Family Law Act to include provisions dealing with family violence in recovery matters, in addition to the provisions of the Act that apply to family violence in parenting proceedings.^[148] As with parenting proceedings, stakeholders identified family violence as a factor which may prompt recovery proceedings.^[149] Women’s Legal Services Australia submitted in support of such a provision that recovery orders may in some cases ‘largely be about controlling the victim of family violence rather than about seeking to spend time with the child/ren of the relationship’.^[150]

17.130 The Aboriginal Family Violence Prevention and Legal Service Victoria described the factors that may lead to recovery proceedings amongst their client group:

Mobility is high for a range of regions—stolen generation issues—maintaining connections to country/family. Often perpetrators take women away from family supports into isolated areas resulting in them needing to leave. In doing so they are acting protectively for children particularly where they seek to connect with other carers etc.^[151]

17.131 Women’s Legal Services Australia and Women’s Legal Services NSW pointed out that as relocation is a priority issue for victims of family violence, this may give rise to recovery proceedings:

Many victims tell us that they want to escape the violence first and once they are safe deal with other issues such as seeking a protection order and any family law matters. However in doing this they are worried that as soon as they leave the other party may be successful in obtaining an ex parte recovery order because the court will not have been advised of the family violence.^[152]

17.132 To deal with such situations, Women’s Legal Services Australia and Women’s Legal Services NSW submitted that there is a need for a procedure

where victims can notify the courts that they have left and taken the children because of family violence. To be effective this would need to include a shared database accessible by all courts having jurisdiction under the Family Law Act, which flags a family violence notification. Then if the other party makes an application for a recovery order the court will see that there has been a family violence notification. … In making such a notification victims would then have to bring family law and/or protection matter before the courts within a specified timeframe. ^[153]

17.133 They noted that where the victim has a protection order, a national protection order database may address such problems with ex parte recovery proceedings.

17.134 While Women’s Legal Services Australia and Women’s Legal Services NSW expressed support for an amendment to the Family Law Act to include provisions dealing with family violence and recovery matters, both acknowledged that such a reform may make Family Law Act ‘legislation and procedures more complex’.^[154]

17.135 National Legal Aid considered that such an amendment may not be necessary, arguing that the important issue is that courts ‘give appropriate consideration to evidence of family violence’ when determining recovery matters.^[155]

Commissions’ views

17.136 Refusing to make relocation orders in situations involving family violence may have serious repercussions for the safety of victims and their children. As noted by stakeholders in this Inquiry, victims in rural or remote areas of Australia may not be or feel safe from violence while remaining in close enough proximity to the person who has used violence to keep child contact arrangements unchanged. For victims who have been distanced geographically from their extended family or primary support network, regaining this support could be crucial to moving forward in their lives.

17.137 The focus in this Inquiry is on interactions of law, in this particular context between the Family Law Act and state and territory family violence laws. While the Commissions heard during the Inquiry that stakeholders have a number of concerns with respect to the extent to which family violence is considered in the context of relocation and recovery situations, few stakeholders addressed the particular issue of the interaction of state and territory family violence laws specifically.

17.138 The Commissions note some stakeholders’ concerns that amending the Family Law Act to include a presumption or specific criteria for relocation and recovery matters in cases of family violence may lead to increased complexity in proceedings, and fragmentation of the Family Law Act. A consequence of such fragmentation may be threshold litigation, for example, around terms such as ‘relocation’ or ‘safe distance’, as parties litigate on issues of definition to attract or prevent the application of specific considerations in determining the case. Increasing the complexity of the Family Law Act in these ways may hinder the accessibility of federal family court proceedings in relocation and recovery cases—thus undermining one of the key aspirations of this Inquiry.

17.139 Identifying the types of case in which a presumption or specific criteria would apply is also problematic. Given that a wide range of behaviours of varying severity constitutes family violence, it may not be appropriate for a presumption or specific criteria to apply in all cases where there is a finding of family violence. However, limiting the application of the presumption or specific criteria may lead to threshold litigation of the kind discussed above. Further, specifying types of family violence that attract the application of specific provisions may operate to disadvantage victims of family violence who may appear to have suffered ‘less severe’ or, for example, non-physical forms of family violence, but who have been significantly affected by their experiences.

17.140 The Commissions note that a key recommendation of the Chisholm Review is that the Australian Government undertake a revision of Part VII of the Family Law Act with a view to clarifying and simplifying the law. This recommendation has the express support of the Chief Justice of the Family Court and the Chief Federal Magistrate, as indicated in their submission to this Inquiry.^[156] The Commissions agree that relocation cases should not be considered as somehow ‘quarantined’ from other children’s cases, nor that the legislation or procedures should be made more complex, as these would work against key reform principles in this Inquiry—accessibility and effectiveness. The Commissions are persuaded, therefore, by the submission of the Chief Justice and Chief Federal Magistrate that ‘further fragmentation of Part VII through the insertion of “relocation case specific” considerations would be undesirable’.^[157] The Commissions’ concerns about increased complexity and fragmentation of the Family Law Act also apply to the introduction of criteria specific to recovery matters.

17.141 The Commissions further consider that reforms recommended elsewhere in this Report are sufficient to address the interaction of allegations of family violence with both relocation and recovery matters. In this chapter, the Commissions make a recommendation for reform to s 60CC of the Family Law Act directed to improving the visibility and weight accorded to protection order proceedings in parenting proceedings generally.^[158] If this recommendation is implemented, federal family courts will need to consider more fully any evidence given or findings made in family violence protection order proceedings under state and territory family violence legislation in parenting proceedings. Recommendations to facilitate allegations of family violence being raised in the federal family courts are also set out in two 2009 reviews—the Chisholm Review and the Family Law Council advice Improving Responses to Family Violence in the Family Law System.^[159]

17.142 Also relevant to relocation and recovery matters is the Commissions’ recommendation with respect to s 60CG of the Family Law Act. This section specifically addresses family violence and requires the court to ensure that the order is consistent with any family violence protection order and does not expose a person to an unacceptable risk of family violence; and to impose any safeguards considered necessary for the safety of those affected by the order. In Chapter 16 the Commissions recommended that s 60CG be amended to provide that, when including such safeguards, the court should give primary consideration to the protection of that person over the other factors that are relevant to determining the best interests of the child.^[160]

17.143 With respect to the overall objective of this Inquiry—improving safety—and the reform principle that the legal framework needs to be as seamless as possible from the point of view of those who engage with it, the inclusion of the recommended reforms as part of the revision of Part VII would address many of the concerns with respect to the interaction issues identified by stakeholders arising from relocation and recovery proceedings, and allegations of family violence.

17.144 In other chapters in this Report, the Commissions focus on improving the understanding of the dynamics of family violence across the legal systems that victims and their families encounter by enhancing practice through specialisation and information sharing. Federal family courts already operate as specialised courts, however as stakeholders have demonstrated throughout this Inquiry, there is room for improvement with respect to the understanding of family violence and the articulation of information between state and federal systems.

17.145 The Commissions consider that information sharing procedures such as the national protection order register will assist courts in improving the safety of victims of family violence generally, and also relocation and recovery matters specifically. For example, in ex parte recovery proceedings, courts exercising jurisdiction under Part VII may access the register to check if any relevant protection orders have been made against the applicant.^[161]

17.146 If the recommendations regarding ss 60CC and 60CG are implemented, as well as other recommendations in this Report, the Commissions consider that there is no additional need to amend the Family Law Act with respect to including provisions specific to relocation and recovery matters.

Property proceedings

17.147 Section 79 of the Family Law Act permits federal family courts to make orders about the distribution of the property of parties to a marriage upon the breakdown of that marriage. Section 90SM of the Family Law Act governs how property is distributed between parties to a de facto relationship, and mirrors s 79 to a large extent.

17.148 In determining how property should be distributed, courts:

• identify the property, liabilities and financial resources of the parties;

• identify and assess the contributionsthat the parties have made to the property of the parties to the marriage or de facto relationship, including financial and non-financial contributions and contributions to the welfare of the family;^[162]

• identify and assess the needsof each party, such as needs based on a party’s age and state of health, mental and physical capacity for gainful employment and any childcare responsibilities;^[163] and

• make an order that is just and equitable in all the circumstances.^[164]

17.149 The case of In the Marriage of Kennon (Kennon) established the principle that, when assessing a party’s contributions, the court can take into account a course of violent conduct by one party towards the other that has had a significant adverse impact on that party’s contribution or has made his or her contributions significantly more arduous than they ought to have been.^[165]

17.150 While family violence, in itself, is not relevant to an assessment of future needs of a party, the consequences of family violence—for example its effect on the state of the victim’s health or physical and mental capacity to gain appropriate employment—can be considered when assessing future needs.

Options for Reform

17.151 The ALRC—in its report Equality Before the Law—and the Family Law Council both previously recommended that the Family Law Act should be amended to require courts to consider the effects of family violence when determining both the contributions and needs of parties to a marriage.^[166] In the Consultation Paper, the Commissions outlined a number of benefits of an amendment of this kind, such as:

• highlighting to parties and their legal representatives that family violence is relevant to the determination of property disputes;

• clarifying the scope and application test in Kennon, in particular the requirement that there be a ‘course of violent conduct’; and

• ensuring that family violence is relevant to an assessment of a party’s future needs, as well as his or her contribution to property.

17.152 In the Consultation Paper, the Commissions noted that the broad issue of how issues of family violence should be considered in property disputes is beyond the Terms of Reference for this Inquiry. As such, the Commissions endorsed the recommendation, made by the ALRC in Equality Before the Law, that the Family Law Act should refer expressly to the impact of family violence on past contributions and future needs.^[167] The Commissions also proposed that the Australian Government should undertake a separate inquiry into the manner in which family violence is considered in property proceedings under the Family Law Act. The Commissions suggested that this inquiry might consider ways in which family violence can be taken into account when determining a party’s contribution to property and future needs, how family violence should be defined for the purposes of property proceedings and how the distribution of property may interact with other schemes such as victims’ compensation.^[168] Finally, the Commissions sought stakeholder views on the interaction issue of whether, in practice, evidence of family violence, including evidence given in protection order proceedings, is considered in the context of property proceedings under the Family Law Act.^[169]

Submissions and consultations

17.153 Stakeholders expressed differing views about whether family violence was considered by federal family courts when making orders for the distribution of the parties’ property.

17.154 Some stakeholders commented that, in practice, family violence is considered in property proceedings when it comes to determining both contributions and future needs.^[170] In such cases, evidence of family violence—including, but not limited to, evidence given in protection order proceedings and the existence of a protection order—is relevant and should be considered by the court.^[171]

17.155 In relation to giving evidence of family violence in property proceedings, the submission from the Chief Justice of the Family Court and the Chief Federal Magistrate noted that, where the impact of family violence is relevant to proceedings relating to both children and property, and the children’s proceedings have been finalised, issue estoppel can be relied upon to prevent any findings as to family violence being re-litigated in the property proceedings.^[172]

17.156 Conversely, some stakeholders submitted that, in practice, family violence is not considered sufficiently relevant to property proceedings.^[173] For example, Women’s Legal Centre ACT submitted that, in its experience,

evidence of violence is not being considered in the context of property proceedings. Property proceedings tend to be viewed in a clinical way, focusing on the numbers. The threshold in Kennon is too high and it is almost impossible to present evidence that can link family violence directly to contributions or future factors unless, for example, there is a clear physical injury which has impeded or will impede a capacity for employment.^[174]

17.157 Other stakeholders noted that in many cases involving family violence there is no property settlement, or victims ‘agree’ to a minimal portion of the property in situations where they are not able to obtain legal aid funding.^[175]

17.158 Most stakeholders who responded to this issue supported the proposal that the provisions of the Family Law Act dealing with the distribution of property should refer expressly to the impact of violence on past contributions and on future needs.^[176] For example, the Aboriginal Family Violence Prevention and Legal Service Victoria submitted that:

The current tests are difficult to succeed on. The impact of family violence permeates all aspects of a victim’s life. It is sometimes the case that women separating from violent relationships actually do not pursue entitlements or full entitlements as they consider it will place them at greater risk of harm and prolong their psychological trauma. Specific legislative provisions stipulating family violence is to be considered as a factor in property proceedings are likely to go some way to address this.^[177]

17.159 However, another stakeholder submitted that, because the family courts already make adjustments to parties’ entitlements to property on the basis of family violence, the Family Law Act does not need to be directly amended.^[178] While the Law Council of Australia supported an amendment of s 79 of the Family Law Act to recognise the impact of family violence on contributions, it did not consider it necessary to amend the provisions relating to future needs as the current provisions already enables a court to take account of family violence in appropriate circumstances.^[179]

17.160 Many stakeholders also supported a further inquiry into the consideration of family violence in property proceedings under the Family Law Act.^[180] For example, the Queensland Law Society supported an inquiry, noting some of the limitations of the Kennon test, including the costs involved in making a Kennon claim as compared to the perceived benefits for making such claim; the requirement that the family violence occur before separation as part of a pattern, meaning that serious isolated incidents, including at separation, are not taken into account; and the effect of family violence on future needs.^[181]

17.161 Two stakeholders commented on the Commissions’ proposal that a further inquiry consider how the distribution of property may interact with victims’ compensation schemes. The Chief Justice of the Family Court and the Chief Federal Magistrate submitted that the philosophy underlying s 79 is not one of compensation for loss, and stated that they would be opposed to the creation of a matrimonial tort or procedures whereby people are able to bring an action in the federal family courts for damages arising from violence experienced during a marriage or de facto relationship.^[182] The Wirringa Baiya Aboriginal Women’s Legal Centre also expressed opposition to any proposal that considered an award of victims’ compensation as part of the assets of the relationship.^[183]

Commissions’ views

17.162 The Terms of Reference for this Inquiry provide a limited lens through which the Commissions can propose reforms—that is, to resolve issues arising from the practical interaction between state and territory family violence laws and the Family Law Act. In the context of property proceedings under the Family Law Act, the principal issue of interaction is the provision and consideration of evidence of family violence, including evidence relating to a protection order sought or made under state and territory family violence legislation. The response of some stakeholders seems to indicate that evidence of family violence is considered in property matters where relevant.

17.163 The Commissions note concerns that the test set out in Kennon is difficult to meet, and may not be an adequate response to the effect of family violence on parties’ contribution to the property of the marriage or de facto relationship and future needs. While stakeholders expressed support for the proposal that the provisions of the Family Law Act dealing with the distribution of property should refer expressly to the impact of violence on past contributions and on future needs, the Commissions consider that developing recommendations to address the concerns expressed about the operation of the Kennon test would involve complex considerations outside the Terms of Reference to this Inquiry.

17.164 The Commissions therefore recommend that the Australian Government should initiate a separate inquiry into the manner in which federal family courts consider family violence in property proceedings. An inquiry could consider, for example, whether the Family Law Act should refer expressly to the impact of violence on past contributions and on future needs; the form that any such legislative provisions should take; and the definition of family violence that should apply for the purposes of property proceedings under the Family Law Act. The Family Law Council may be well placed to conduct such an inquiry, given its previous letter of advice to the Attorney–General on this issue.