New Federal Family Violence Orders

On 24 March 2021 the government introduced the Family Law Amendment (Federal Family Violence Orders) Bill 2021

The purpose of the bill is to give the power to Judges hearing family law matters to grant a Federal Family Violence Order akin to a domestic violence order which are currently only available in the state courts,

Previously, the Courts could only make a personal protective injunction which was only able to be civilly enforced under the contravention regime.

The amendment to the Family Law Act 1975 will also include the criminal offence of contravention or breach of FFVO and will be able to be enforced and prosecuted by state police forces.

The government has promised $1.8 million to assist with the implementation of the FFVO scheme, in addition to the current new initiatives being:

  1.         The ban on direct cross-examination of victims of domestic violence; and

2. The roll out of the Lighthouse Project, which is the specialist domestic violence list currently being piloted in Brisbane.

The offence of contravention of FFVO will carry a maximum penalty of 2 years in prison or 120 penalty units.  

The test for the issue of an FFVO will be the safety and welfare of the protected person and children will also be able to be named on the orders. Evidence of domestic violence will only need to be established on the balance of probabilities.

The Court will be able to make an FFVO on application of the parties or the Independent Children’s Lawyer or of its own motion. The Court will only be able to make an FFVO on a final basis and there will be no power to make an interim order.

Whilst the concept of being able to have domestic violence and family law issues heard in the same court will be met with huge support, some suggest that this will only further complicate the existing processes and put victims of domestic violence at further risk and may actually cause further harm than good.

Presently it can be painstakingly expensive for parties to conduct two sets of litigation one being the domestic violence proceedings in the Magistrates Court and the other being the family law issues in the Federal Circuit and Family Court.

The immediate concerns for the Federal Circuit and Family Court is the already burgeoning workload exacerbated by the pandemic and the complicating factors relating to the intersection between the state and commonwealth legislation.

The lack of accessibility for parties who live in regional and remote areas to obtain a FFVO is also a concern, where the family law courts are not accessible.

The most predominant issue for the courts, lawyers and state police is the complexity of having two domestic violence systems running alongside each other and the risk of systems abuse by perpetrators looking to play the system to obtain the most favourable result.

Of concern, is systems abuse in the form of delaying proceedings and obfuscating issues by having domestic violence and family law heard together, in an attempt to water down or avoid having allegations tested. Conversely the Queensland Police Union welcomed domestic violence and family law being heard together, however, accepted this was a long way from being achieved. (source Senate Inquiry).

The Queensland Police Union acknowledged that there is a perception among domestic violence perpetrators that obtaining a protection order would be of assistance strategically where there are family law issues involved.

“She’s only doing this to stop me seeing the kids, Your Honour!”

Traditionally it has been acknowledged that the state-based definitions of domestic violence is more more liberal and covers a wider range of behaviours considered to be domestic violence and in this sense Magistrates are more willing to grant a protection order for the safety and protection of victims of domestic violence.

Whether or not this will lead to victims of domestic violence preferring the Magistrates Court to hear their application for a protection is unknown at this time. However, it has been acknowledged by the government that the state courts will remain the preferred jurisdiction where interim or urgent protection is being sought. But is this the correct approach in the long term? The absence of ability for the family law courts to issue an interim protection order has been met with criticism.

If there is a DVO in place then the family law courts will not be able to make an FFVO.

However, in circumstances where there is a DVO and FFVO in place then as per the Constitution the FFVO prevails to the extent of any inconsistency.

Again this has been flagged as causing concern as to complexities for Judges and prosecutors alike, there is a push for a national register of FFVOs which is accessible in real time.

Again forum shopping for the best Court and concerns regarding enforceability are raised given the complexities of circumstances where multiple DVOs and FFVOs are in place and which offence should be prosecuted if there has been a breach and the undermining of orders through multiple orders and applications is raised as concern by Kilmartin Legal.

The Womens Legal Service of Queensland are desirous of a section being inserted into the Family Law Act that would define women as the “victims” and men as the “perpetrators”  which they say would hopefully provide clarification for the Courts and make it easier for the police when investigating domestic violence.

The Bill if passed into Legislation would take effect in 12 months to allow the various states of Australia to amend their own legislation to accommodate FFVOs.

At Kilmartin Legal we believe that FFVOs are a step in the right direction towards solving the ever evolving issues arising from having the matters determined in two different courts and for the protection of genuine domestic violence victims, however, further reform is needed.