2018 has been a big year for Family Law Amendments. A number of amendments are currently before parliament, including the The Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth), which has recently been passed the Senate and the House of Representatives.
These amendments have unfortunately been prompted by a number of deaths of women and children as a result of family violence in recent years. One such example is the death of Luke Batty, who was murdered by his father while at cricket practice in 2014.
These amendments are aimed at providing protection to victims of family violence, as Assistant Minister for Home Affairs Alex Hawke said:
"The bill will enhance the capacity of the justice system to provide effective outcomes for vulnerable Australians experiencing family violence.”
What it means for State and Territory Courts
The Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth) allows for some family matters to be dealt with in State and Territory courts. This means that for some minor family matters, State and Territory Courts have the same powers as the Federal Circuit Court and the Family Court of Australia.
One of the most significant matters that can be dealt with by the State and Territory Courts; includes the ability to revive, vary or suspend an injunction for personal protection when the courts are dealing with a breach of that injunction.
These amendments also remove the 21-day time limit on the revival, variation or suspension of family law orders by State and Territory courts in family violence order proceedings.
What is an injunction?
An injunction is a court order which usually tells someone not to do something.
What it means for the Family Law Courts
The Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth) allows the Family Law Court to dismiss applications that are seen to be time-wasting or are being used to manipulate the Family Court system for one side’s advantage.
The amendments provide Judges the option to remove the requirements to explain an order or injunction to a child, where it would be in the best interests of the child. This basically means that children will potentially be protected from the uglier side of their parent's legal issues.
Some of the biggest changes seen in these amendments are the move towards the criminalisation of various breaches of the Family Law Act 1975 (Cth).
Currently a defence of self-induced intoxication is available for those who commit acts of family violence. However, these amendments remove this defence against charges relating to family violence.
Under the Family Law Act 1975 (Cth) a family law injunction can be made by the court to provide personal protection for one person by ordering another person not to do a particular thing. The amendments to the Act provide that a breach of a family law injunction for personal protection is a criminal offence. The protected person is not at risk of criminal responsibility if it is their own conduct that results in the breach.
Explaining Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth) in a scenario:
The Family Court issued Simon an injunction that forbids him from approaching his ex-wife Linda as there had been allegations of ongoing domestic violence. It is now a criminal offence for Simon to breach that injunction, whereas before it was only a criminal offence if the Order was made by a State Court. In some cases, the protected person causes the breach but that is not a criminal offence so if Linda approaches Simon she does not have to worry about being charged.
It is hoped that these amendments will reduce the dangers seen by many Australian women and children on a daily basis and discourage those who commit these acts. These amendments while comprehensive, are not all encompassing. Further work is still needed to be done at all levels of both the Government and the Judiciary.
The Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth) is a strong and positive start to overhauling Australia’s Family Law system.