Parkinson, Chapters 9, 7.60, 7.150
Monahan/Young, Chapter 4
Dr Tom Altobelli, Family Violence and Parenting: Future Directions in Practice, 11 th Australian
Family lawyers Conference Fiji 5 – 9 June 2009 (see link to article in Notes section online)
Family Violence Best Practice Principles http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/FV/Family+Violence+Best+
Practice+Principles
Issues:
In this topic we explore issues of family violence. We also examine the available remedies under the Family Law Act and the Crimes Domestic and Personal Violence Act.
Desired Outcomes:
An appreciation and understanding of the statutory requirements in relation to personal protection and restraining orders under the Family Law Act 1975 (Cth), the Property
(Relationships) Act 1984 (NSW) and the Crimes Domestic and Personal Violence Act 2007
(NSW).
Links:
 www.lawlink.nsw.gov.au/lc.nsf/pages/avo_index
 www.lawlink.nsw.gov.au/lawlink/vaw/dvguidelines.nsf/pages/whatis

(violence against women special unit)

Domestic Violence Advocacy Service: 1800 810 784

DoCS Domestic Violence Line: 1800 656 463

Victims Support line: 1800 633 063
Section 4 of Family Law Act:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
What elements can you pick out of this definition?
Family violence can involve conduct
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It can also involve threats
The conduct or threat can be towa rds that person, that person’s property or that person’s family
There is a focus on what that conduct causes in the other person
There is also an objective element – the reference to reasonable imports this
Crimes (Domestic and Personal Violence) Act NSW 2007
9 Objects of Act in relation to domestic violence
(1) The objects of this Act in relation to domestic violence are:
(a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and
(b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons, and
(c) to enact provisions that are consistent with certain principles underlying the
Declaration on the Elimination of Violence against Women, and
(d) to enact provisions that are consistent with the United Nations Convention on the
Rights of the Child.
(2) This Act aims to achieve those objects by:
(a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking, and
(b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice.
(3) In enacting this Act, Parliament recognises:
(a) that domestic violence, in all its forms, is unacceptable behaviour, and
(b) that domestic violence is predominantly perpetrated by men against women and children, and
(c) that domestic violence occurs in all sectors of the community, and
(d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and
(e) that domestic violence occurs in traditional and non-traditional settings, and
(f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and
(g) that domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court.
(4) A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section.
7 Meaning of “intimidation”
(1) For the purposes of this Act, "intimidation" of a person means:
(a) conduct amounting to harassment or molestation of the person, or
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(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
(2) For the purpose of deter mining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence ) in the person’s behaviour.
8 Meaning of “stalking”
(1) In this Act, "stalking" includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence ) in the person’s behaviour.
Violence is not limited to physical violence. It can also be emotional, psychological, social, sexual, and financial. It is about power and control.
Read further:
Eva’s Story PP [9.15]
Kelly and Johnston PP [9.40]
Altobelli’s paper has some useful discussion forms of violence and challenges for practitioners
Dr Tom Altobelli, Family Violence and Parenting: Future Directions in Practice, 11 th Australian
Family lawyers Conference Fiji 5 – 9 June 2009 (see link to article in Notes section online)
Family Violence Best Practice Principles http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/FV/Family+Violence+Best+
Practice+Principles
Dispute Resolution Provisions
• s10H confidentiality provisions family dispute resolution practitioner exceptions so can report risk of harm to a child or reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person
• s60I(9)(b) exceptions in cases of abuse and family violence where court is satisfied there a reasonable grounds to believe there has been family violence by one of the parties or there is a risk of family violence by one of the parties
Parenting provisions
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• s60B(2)(b) – objects section - protect child from abuse and family violence
• s60CC(3)(j) – determining best interests - additional consideration any family violence involving child or member of child’s family
• s60CC(3)(k) – consideration of any family violence order- if final/contested
• s60CF - obligation to inform court of family violence order
• s60 CG - court to consider risk of family violence - when considering what order to make must consistent with the child’s best interest make orders consistent with any family violence order and that doesn’t expose a person to an unacceptable risk of violence.
Court may include any safeguards it thinks necessary
• s60K - court to take prompt action when abuse /family violence alleged
NOTE:
• s61DA(2) - impact of DV/abuse on parenting orders – presumption of equal shared parental responsibility does not apply
• Div 11 ss 68N-68T of FLA – family violence (see 5 below)
** review these provisions after you have studied topic 7
Cases
In the Marriage of JG and BG [1995] FLC 92-515
Patsalou and Patsalou [1995] FLC 92-580
Nawaqualiva v Marshall [2006] FLC 93-296
– discusses definition violence reasonable person
Maluka & Maluka [2009] Fam CA 647
– lengthy judgment but instructive - Note paras 61-62,
65, 73 to 79, 129 and 130, 196, 232-234, 340-343, 449-457 – discusses principles applying to violence
Also discusses change of name issue
Is family violence relevant to property decisions?
See Kennon and Kennon [1997] FLC 92-757 (PP) – only in very limited circumstances
Injunctions
Section 114(1)

matrimonial cause - de facto financial cause

discretionary

proper

(a) - (f): personal protection, restraining order (home and work), protection of marital relationship, property (party to a marriage), use or occupancy of the ‘home’
Section 114(3) - Property

proceedings outside s 114(1)

discretionary

interlocutory or otherwise

just and convenient

unconditionally or conditionally
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Section 68B(2) - Children

must be a child

power is discretionary

interlocutory or other

must be just or convenient to make the order
Injunctions for personal protection under the FLA are rarely used as they are difficult to enforce and are expensive.
** Review these provisions after studying topics 7 and 8
New Act: Crimes (Domestic and Personal Violence) Act 2007 (commenced 10.03.08)
(formerly Part 15A Crimes Act 1900) note (since 2000) distinguish between ADVO and an APVO. We are concerned about
ADVOs.
“reasonable grounds to fear” is the key
They are not criminal proceedings unless there is a breach of order (or stalking etc)
 Meaning of ‘domestic relationship’ s 5 married, de facto, intimate personal relationship, same household, relationship involving dependence, Aboriginal or Torres Strait islander kinship
 Meaning of ‘relative’ s 6 includes in laws, step, half

s 9(1) – Objects re domestic violence: ensure safety/protection all persons including children, reduce/prevent violence, consistent with international obligations (DEVAW and
UNCROC)

s 9(2) - Aims achieved by: court orders, access to justice

s 9(3) – Parliament recognizes: domestic violence is unacceptable …
 Offences: s 13 stalking (5 years/50pu) “stalks or intimidates … with the intention of causing the other person to fear physical or mental harm ”
 Offences: s 14 contravening AVO (2 years/50pu) “knowingly contravenes a prohibition or restriction specified …”
• If Court makes ADVO (including an interim ADVO) for the protection of a person over 18 years
the Court MUST include as a protected person under the order, any child (defined as under
16 years) with whom the person over 18 years has a domestic relationship – s 38
• Exception: If there are good reasons for not doing so – Court must state reasons.
• ADVO may be made by Court for the protection of a child even though an application for the order was not made by a police.
• s41 measures to protect children introduces measures which aim at better protecting children of victims of DV as protected persons and witnesses in AVO proceedings.
• Proceedings to be heard in closed court unless Court directs otherwise.
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• A child should not be required to give evidence unless, in the opinion of the Court, it is in the interests of justice to do so.
• Aims to ensure that focus will be on the best interests of the child & guarantee that safety of child and victim is taken into consideration
• s41 measures to protect children
• s42 consideration of contact with children
Automatic interim orders
• Interim APVO automatically made for the protection of a victim where certain serious charges have been laid irrespective of relationship – s 40
• Defendant will not be able to contest the order until concurrent criminal charges finalized
• Aims to spare victims the trauma of being cross-examined at AVO hearing and at hearing of the criminal charge

Application: s 15 (+ ss 47-87)
 Applicant: s 15 ‘domestic relationship’ requirement ; s 48(2) application by ‘(a) a person for whose protection the order would be ma de, or (b) a police officer”
(1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or
(c) in the opinion of the court:
(i) the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and
(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and
(iii) the making of the order is necessary in the circumstances to protect the person from further violence.
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(3) For the purposes of this section, conduct may amount to intimidation of a person even though:
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.
Note: Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.
17 Matters to be considered by court
(1) In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.
(2) Without limiting subsection (1), in deciding whether or not to make an apprehended domestic violence order, the court is to consider:
(a) in the case of an order that would prohibit or restrict access to the defendant’s residence-the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and
(b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and
(c) the accommodation needs of all relevant parties, in particular the protected person and any children, and
(d) any other relevant matter.
(3) When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property.
(4) If an application is made for an apprehended domestic violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.

Circumstances in which police must make application for order: s 49 if believes offence s13 recently committed or imminent

Open court: s 58

Orders by consent: s 78
 Duration: s 79 “(1) for such period as is specified … by the court” (2) “as long as nec essary” (3) if not specified - 12 months
 Duration: s 79 “(1) for such period as is specified … by the court” (2) “as long as necessary” (3) if not specified - 12 months

Content and effect of AVOs: Pt 8
prohibitions and restrictions: s 35 (approaches, restricting access, restricting possession of firearms, restricting/interfering with property, restricting specified behaviour)
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
contravention of ADVO/APVO (s 14) a person who knowingly contravenes an AVO is guilty of an offence. A person is not guilty unless that person was served with the order was present in court when it was made

stalking, intimidation (s 13)

appeals to District Court

Division 11 FLA
68N Purposes
• resolve inconsistencies between State FVO and certain FLA orders re arrangements for time;
• ensure that orders and arrangements do not expose people to family violence ; and
• achieve the objects and principles in s 60B – meaningful relationship with parents & protection from harm
S 68P – Obligations on Court if parenting order inconsistent with FVO Court must:
– specify in the order that it is inconsistent with an existing FVO
– give detailed explanation in the order as to how contact is to take place
– explain the order to all people affected by the order
– give copy of order to named parties e.g. Police, Local Court
– if an inconsistent order is made then the family violence order is invalid: s68Q
– State Court making family violence order may vary parenting order
C rimes and (Domestic and Personal Violence) Act s42 Consideration of contact with children
(1) A person who applies for, or for a variation of, a final apprehended violence order or interim court order must inform the court of:
(a) any relevant parenting order of which the person is aware, or
(b) any pending application for a relevant parenting order of which the person is aware.
The court is required to inform the applicant of the obligation of the applicant under this subsection.
(2) In deciding whether or not to make or vary a final apprehended violence order or interim court order, the court is to consider the safety and protection of the protected person and any child directly or indirectly affected by domestic or personal violence.
(3) Without limiting subsection (2), in deciding whether or not to make or vary a final apprehended violence order or interim court order, the court is to:
(a) consider whether contact between the protected person, or between the defendant, and any child of either of those persons is relevant to the making or variation of the order, and
(b) have regard to any relevant parenting order of which the court has been informed.
(4) A final apprehended violence order or interim court order, or a variation of such an order, is not invalid merely because of a contravention of this section.
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(5) In this section, "relevant parenting order" means a parenting order (within the meaning of Division 5 of Part VII of the Family Law Act 1975 of the Commonwealth) that relates to contact between the protected person, or between the defendant, and any child of either of those persons.
Family Law Council Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues December 2009 http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~Fa mily_Violence_Report.pdf/$file/Family_Violence_Report.pdf
EXECUTIVE SUMMARY AND RECOMMENDATIONS
This report to the Federal Attorney-General focuses on family violence if and when it becomes visible in the Family Law system in Australia.
This visible pattern is only the tip of the iceberg of family violence, alcoholism, drug addiction and mental illness which is apparently entrenched in Australia.
The Family Law Council report is only one of the multiple studies in progress at present on the causes, effects and responses to family violence in Australia.
The report recommends:
_ The definition of “family violence” in the Family Law Act be widened to include a range of threatening behaviour.
_ That the Attorney General establish an expert panel under the direction of the Australian Institute of Family Studies to create an easy-to-understand “common knowledge base” on the known patterns and effects of family violence. This easily accessible information will assist to provide common and up-to-date information to all those involved in the family relationship and legal systems, including parents, relatives, counsellors, mediators, FRCS, legal aid officers, lawyers and courts.
_ The Law Council of Australia and the Family Law Council co-operate to revise the booklet “Best
Practice Guidelines for Lawyers Doing Family Law Work” to incorporate detailed information on family violence.
_ A number of reforms take place to improve co-ordination and collaboration between the state and territory child protection agencies, and the federal Family Law Act, including: the transportability of state family violence injunctive orders; the establishment of a national register of family and violence orders ; and the establishment of a network data base which records family violence orders, and a residual family court power to require state Child Protection Agencies to become parties to Family
Law Court proceedings about children.
_ A further report be prepared on whether FDRP should be required to provide a report to the Family
Law Courts or other bodies in some or all structure where family violence is admitted or suspected.
_ The forms notifying the Family Law Courts about family violence be simplified.
_ Consideration be given on how to educate the Australian public about certain widespread misunderstandings of the Family Law Act including:
Family Law Council - Family Violence Committee An advice on the intersection of family violence and family law issues o Recurrent gossip that notification of family violence may lead to a judicial perception that the notifier is an “unfriendly parent” o Widespread perception that each parent now has a “starting right” to equal time (50/50) with children
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o Common belief that a parent will receive both substantial time with a child, and equal shared parental responsibility, (similar to historic “guardianship”), despite a history of poor communication and hostility between parents; and despite the long term health and emotional consequences for children as casualties on such parental battlefields.
These recommendations of the Family Law Council will need to be amalgamated with the various reports on family violence emerging in the next year.
Chisholm Family Court Violence Review December 2009 http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyCourtsViolenceReview
As violence and risk factors introduce a system of risk identification and assessment in all parenting matters
3 provisions of the FLA need to be amended:
Friendly parent provision to recognise that parents sometimes need to take action to protect children from risk
Replace s117AB with provision simply knowingly giving false evidence (rather than referring to false allegations)
Information lawyers give should give include not just importance of parental involvement but also importance of safety for children
Criticism 2006 reforms as they give the impression that parental involvement is more important than protection from violence and abuse.
Recommended a technical review Part VII which is complex and repetitious.
ALRC summary family violence report
Theme – limits of the law both in terms of its services and application
Fragmentations laws and practice big problem – neither the Commonwealth nor States have exclusive have exclusive legislative competence, boundaries are not always clear.
Principles for reform – seamlessness, accessibility, fairness, effectiveness
Recommend: common interpretative framework across commonwealth and states. Each legislative regime should provide family violence is violence or threatening behaviour or any other form of behaviour which coerces or controls a family member or causes that family member to be fearful. It may include but is not limited to physical violence, sexual assault and sexually abusive behaviour, economic abusive, emotional or psychological abuse, stalking, kidnapping or deprivation of liberty, damage to property, causing injury or death to an animal, behaviour by person using violence that causes a child to be exposed to any of the above
Adopting consistence definitions of family violence across different legislative schemes allows courts to send clear messages about what constitutes family violence
Recommends state and territory magistrates be given back powers to make interim parenting orders when making protection orders which was taken away from them in
2006. One reason it was taken away in 2006 was that the magistrates had limited time and resources. This is part of package of reform specialisation exercising family law jurisdiction by state and territory courts
State and territory courts should remain the primary jurisdiction for obtaining protection order particularly given the role of police in those proceedings
Where ever possible mattes involving children should be dealt with by one court so when a matter is in the children’s court that court should be able to exercise jurisdiction under
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the FLA and should also be able to make protection orders (trying to avoid parties being in multiple courts)
Recommendations aimed at improving how information about violence is gathered avoid repetition
Specialisation of courts family violence court or division
Amend s60CG FLA to give primary consideration to protection of person over other best interests factors
Amend s68T
State and territory family violence legislation should provide that courts not significantly diminish protection in order to facilitate consistency with a parenting order
National family violence bench books include guidance on resolving inconsistencies FLA and state and territory orders
Amend s60CC(3)(k) to consider evidence of family violence given or findings made in family violence protection order proceedings
Prohibit respondent from personally cross-examine
Family Law Amendment (Family Violence) Bill 2010 Exposure Draft
1 Subsection 4(1) (definition of abuse )
Repeal the definition, substitute: abuse , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
2 Subsection 4(1)
Insert: exposed : for when a child is exposed to family violence, see subsection (1AD) of this section.
3 Subsection 4(1) (definition of family violence )
Repeal the definition, substitute: family violence means behaviour by a person (the first person ) towards a member of the person’s family (the second person ) that:
(a) causes death or personal injury; or
(b) is an assault; or
(c) is a sexual assault, or another form of sexually coercive behaviour; or
(d) torments, intimidates or harasses the second person, including (for example) where that effect on the second person is caused by:
(i) repeated derogatory taunts, including racial taunts; or
(ii) intentionally causing damage to, or destruction of, property; or
(iii) intentionally causing death or injury to an animal; or
(e) controls, dominates, deceives or coerces the second person unreasonably, including
(for example) where that effect on the second person is caused by:
(i) denying the second person the financial autonomy that he or she would have had but for the conduct; or
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(ii) withholding financial support, if the second person is entirely or predominantly dependent on the first person for financial support to meet his or her, or his or her child’s, reasonable living expenses; or
(iii) preventing the second person from making or keeping connections with his or her family, friends or culture; or
(iv) unlawfully depriving the second person, or any member of the second person’s family, of their liberty; or causes the second person to feel fear for his or her safety or for the safety of another (f) person; or
(g) causes the second person to feel threatened (whether because of a threat to engage in conduct that would be covered by any of paragraphs (a) to (f), or for any other reason); or
(h) involves the first person threatening to commit suicide or self-harm, with the intention of tormenting or intimidating the second person.
Note: None of the paragraphs of this definition is intended to limit any of the other paragraphs, and a particular incident of conduct may be covered by 2 or more of the paragraphs.
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