(June 22, 2021) On March 24, 2021, the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (Cth) (the bill) was introduced in the Australian Parliament to amend the federal Family Law Act 1975 (Cth). If passed, the bill would establish new federal family violence orders that are criminally enforceable if breached.
The bill was referred by the Senate to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by July 29, 2021.
Family Violence Orders in Australia
Various family violence orders are available in Australia to protect victims of domestic violence. At the federal level, the Family Court of Australia has jurisdiction to grant personal protection injunctions on the application of a domestic violence victim in any state or territory (except Western Australia, which has its own family court that applies federal and state legislation). Such injunctions can be for the personal protection of a child or the child’s parent (Family Law Act s 68B), or to protect a party to a marriage (s 114). The Family Law Act provides the police with an automatic power of arrest when a person breaches a personal protection injunction. (ss 68C & 114AA.) However, enforcement of the injunction in the court depends on the person who originally obtained the injunction applying for an order regarding the contravention. If there is no such application, the arrested person must be released. (ss 68C(3) & 114AA(4).)
At the state and territory level, courts have jurisdiction to grant family violence orders, which have been given different names in the relevant state and territory legislation, including “domestic violence order,” “intervention order,” and “violence restraining order.” These are granted by the state Magistrates Court or by the Children’s Court. Such orders are enforceable throughout Australia under the National Domestic Violence Order Scheme established through legislation enacted in each state and territory.
Proposed New Federal Family Violence Order
The bill would allow the Family Court of Australia and the Family Court of Western Australia to make a federal family violence order when the court is satisfied that a person “has been or there are reasonable grounds to suspect that it is likely that they will be subjected to family violence.” In relation to children, the court would be able to make an order if a child “has been or there are reasonable grounds to suspect that it is likely that they will be subjected or exposed to family violence.” (Bill Explanatory Memorandum at 2.)
The amendments would also establish that a breach of a federal family violence order would be a criminal offense carrying penalties of up to two years of imprisonment, 120 penalty units, or both. State and territory police would have authority to enforce these penalties under the National Domestic Violence Order Scheme. (Explanatory Memorandum at 2.)
The bill would “prevent a perpetrator from relying on self-induced intoxication as a consideration for whether the conduct was accidental or whether a person had a mistaken belief about facts, and would ensure that victims cannot be charged with aiding and abetting the offence if their actions invite a breach.” (Explanatory Memorandum at 2–3.)
The bill would establish new federal family violence orders without repealing the personal protection injunctions. While personal protection injunctions are enforceable only through private civil action, the new federal family violence orders would be enforceable without a party bringing a private application. According to the Explanatory Memorandum to the Bill, this reflects the view that “family violence is not a private matter but a criminal offence of public concern.” (Explanatory Memorandum at 3.) Furthermore,
[t]he Bill would reduce the need for families to interact with multiple courts across the federal family law and State or Territory family violence systems. Access to federal family violence orders would mean that persons before a family law court would not be required to initiate separate proceedings in a State or Territory court for a criminally enforceable protection order, but can seek the protections they need in the court where their existing matter is already being heard. (Explanatory Memorandum at 3.)
Related Actions Targeting Family Violence
According to the government’s media release accompanying the bill, it has committed AU$1.8 million (about US$1.38 million) to implement the measures in the bill. That builds on the AU$340 million (about US$261.2 million) that the government has already invested in initiatives under the Fourth Action Plan on the National Plan to Reduce Violence Against Women and Their Children 2010–2022.
Prepared by Damian Terbiler, Law Library intern, under the supervision of Kelly Buchanan, Chief, FCIL II