Provided By Stephen Winspear and Laura Dobson – Guidance to Family Law Solicitors – Smokeball

Allegations of family violence in family law matters (whether for separated, married or de facto couples) vary in intensity, seriousness and relevance. The lawyer has an obligation to reality test their client’s allegations, to get details, not just generalities, and then to carefully advise a client as to what impact that history will have in their case. This paper will discuss the practical effect of family violence allegations on Family Law procedures. It will discuss the operation of state based legislation dealing with family violence, and how family violence orders are sought and defended in local Courts. The important interaction between family violence orders and parenting orders made under Part VII Family Law Act 1976 (Cth) (‘FLA’) will then be considered.

1. Definition of ‘Family Violence’

Legislative definitions of ‘family violence’ vary across jurisdictions although “all sorts” of violence can be relevant to parenting disputes. The definition of ‘family violence’ under s 4 FLA is stated in broad, general terms, and is objectively defined to include:

‘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’.

Each State and Territory has a slightly more specific definition of family violence and employs different terminology as it applies to family violence orders. For the purposes of this paper, the term ‘family violence order’ will be used to encompass all different state and territory based orders.

The following table briefly summarises the differences between State and Territory terminology and definitions of family violence.

The table shows that, despite some differences, the scope of ‘family violence’ across the different jurisdictions is broadly similar. All jurisdictions except NSW go beyond physical abuse to emotional abuse or intimidation, or analogues. And some jurisdictions (Victoria, South Australia, Tasmania and Northern Territory) go even further to include economic abuse. In practice, however, it is unusual for a family violence application to not include some form of physical abuse, even though the arguably more subtle abuse (like harassment) may be the main reason for the application. Allegations of ‘family violence’ (whether actual or threatened) are commonly against a partner, against a child, or both.

2. Family Violence Allegations in Local Courts and Family Violence Orders

The following section will discuss the scope and operation of these orders, how they are made, and possible strategies to be used in defending an order.

(a) Applying for a Family Violence Order

Across all jurisdictions, an application can be made for a family violence order to any local Magistrates’ Court. The person applying for such an order can be any one of the following people:

• An affected family member (on their own behalf, on behalf of a child or both);

• A police officer; or

• Any other person on behalf of the affected family member (with their consent).

The applicant for a family violence order usually attends the Court and is assisted by the Clerk of Courts to prepare their own application. If they can satisfy the Court that the matter is very urgent they may be able to immediately get a hearing and get an ex parte family violence order, if they can satisfy the Magistrate that service of the application prior to granting of an order would constitute a danger to the applicant. The matter is adjourned to enable service on the respondent and the opportunity for the respondent to come back to Court and answer the application. So far the theory is good.

In practice, the ex parte order may be based on evidence which your respondent client hotly denies and yet on the next return date, if the Court is advised that the matter is to be contested, it may well be adjourned off to a contested hearing date some months later with little real opportunity to alter the order in the meantime. Hence the person who has obtained the ex parte order “gets the jump” on the other party.

If the matter is not urgent enough for an ex parte order then the respondent is served with notice of the first return date of the application. Service is performed by the police which in itself has a salutary effect on respondents.

Courts readily make orders to remove the alleged “offender” from the family home and if the order has been made on an ex parte basis this obviously has a drastic impact on the respondent.

Applications for family violence orders run the full gambit of fact circumstances. There are undoubtedly numerous serious violence cases where orders are most important and ex parte orders can and should be obtained in such cases.

In other cases there are simple and sad matters involving respondents who desperately want to reconcile, won’t take no for an answer, and just keep ringing and dropping in and sending letters and trying to re-establish the relationship. The applicant in great frustration resorts to an application for a family violence order which can be a disproportionately severe response. In this type of case the applicant’s lawyer may be doing the whole family a service by recommending that a letter first be sent to the respondent threatening a Court application if they do not desist from their insistent approaches. Quite often this will be successful.

Defended final hearings will usually take place a number of months after the initial interim order has been obtained. If it is available, medical evidence should be presented as that is most telling. Photographs of bruising and injuries are also most telling. Different jurisdictions have different habits as to the length of orders which are granted at final hearing. They are commonly one or two years in length. The theory is that if an order has been granted for that sort of period, the threat or risk of violence diminishes rapidly with time and an order does not need to extend beyond that period. However, most jurisdictions have provision for longer orders or indefinite orders in cases which are bad enough.

Some applicants apply for an order for the sake of merely attempting to stop the parties communicating or to remove the Respondent from the house. In such cases, a client may be advised that there can in theory be costs consequences if the Court determines the allegations that form the basis of the family violence order application are frivolous and vexatious.

(b) Possible Effects of a Family Violence Order on the Respondent

If your client is the Respondent, an order may have serious consequences. Ex parte orders are usually served on the Respondent by the police, which can be a daunting experience for the Respondent. The effect of an order can restrain the Respondent from entering their place of residence if the other party also resides there. Family Law parenting orders can also be affected in certain ways (see below).

If your client is responding to a family violence order, it is always advisable that they be counselled not to breach any family violence order which may be in place. If a family violence order is breached, the police have powers of arrest, and can charge a Respondent with the criminal offence of breaching the family violence order. The penalties if a Respondent is convicted vary between jurisdictions, and also vary depending on the seriousness of the breach, but include fines and imprisonment.

In some circumstances, it may be possible for an applicant to withdraw the application. However, if the police apply for the family violence order on behalf of the complainant, it is not usually possible to withdraw the application without police agreement.

Some jurisdictions (for example, Queensland) allow an interim order to be adjourned to a later date (usually 3 months later) as many times as the Court deems necessary. This can keep the interim order in place for a long time.

(c) Defending a Family Violence Order Application

In defending an application, there are usually four options open to a Respondent:

1. Consent to the order;

2. Consent to the order without admission as to the allegations in the complaint;

3. Contest the making of an order; or

4. Propose/agree to an undertaking (e.g. undertaking not to assault or harass etc the other party).

Given that a family violence order carries negative parenting implications, consenting to an order (with or without admission) is unlikely to be the most suitable option if your client is the Respondent. To contest an order, the Respondent must provide oral evidence in Court, and the Magistrate will consider whether a final order should be made in the circumstances. It may also be appropriate to advise a Respondent that they can make a cross-application for an order if the circumstances provide, in order to neutralise the effect of any order brought against them.

An undertaking may be an attractive option to a Respondent, because criminal breach charges cannot be brought against a Respondent in the event the undertaking is breached (as opposed to a formal order). An undertaking is typically made by Respondents in relation to the conditions that a complainant seeks, but specific conditions can be negotiated and agreed between the parties. However, some states (for example Queensland) do not allow a Respondent to agree to an undertaking where the police have made the application on the complainant’s behalf.

Undertakings are commonly used in some jurisdictions (such as Victoria) in relation to family violence order proceedings, and can be as effective as formal orders. This will obviously depend on the Respondent, whether the interim order has been complied with and the type of behaviour alleged. If the family violence alleged is serious and/or the Respondent has breached the interim order, it is unlikely in practice that a complainant will agree to an undertaking in lieu of a final order.

In practice, a number of Respondents are so daunted by having an interim order made against them, being served by police and attending court that the undertaking is taken seriously and is effective. However, if the Respondent is unlikely to take the undertaking seriously or has breached the interim order, it is advisable for a Complainant to obtain a formal court order so that police can readily act in the event of a breach.

3. The Effect of Family Violence Orders on Family Law Parenting Orders

A family violence order is generally, but not always, obtained prior to issuing Family Law proceedings. If FLA parenting orders exist when an application for a family violence order is made, the terms of the family violence order can have an impact on the operation of the parenting orders. Section 68R(1) FLA provides that in making a family violence order a State or Territory court, when given jurisdiction to do so by their legislation, has the power to revive, vary, discharge or suspend an existing parenting order, undertaking or registered parenting plan under the FLA. Any order suspending a parenting order is valid for 21 days from the date of the order. This further highlights the possibility of serious consequences when a family violence order is made against your client.

Notwithstanding that such a provision exists in the FLA, allegations of violence must be sufficiently serious and accompanied by corroborating independent evidence in practice in order for parenting orders to be set aside under this provision. This course of action is not lightly or commonly applied by Courts.

4. The Approach of the Family Law Courts to Family Violence Allegations

It is not uncommon for family violence allegations to be present in a Family Law parenting matter. If your client is making family violence allegations, you must file a Notice of Child Abuse or Family Violence (Form 4), which details the alleged occurrence or risk of child abuse or family violence. Although it is compulsory to file a Form 4 notice, it is often neglected in practice. There can, however, be practical advantages in filing this notice. Where the Form 4 alleges serious violence or child abuse, it is provided to the relevant state child protection agency which considers whether the allegations are of such severity that further investigation is warranted. In addition, filing the notice gives a certain amount of credibility to the allegations, and can be given weight by the Court if considered serious. Thus, if the allegations are serious, there appears no practical reason to avoid filing this notice.

One theoretical risk of filing a Form 4 notice is the risk of having a costs order made against the party making the allegations. If a party knowingly makes a false allegation, s 117AB FLA provides that the court may order that party to pay some or all of the other party’s costs. Of course, proving that an allegation was knowingly false is difficult, but a client should be counselled that a ‘thin’ allegation may create costs issues.

The application form itself (whether in the Family Court or Federal Magistrates’ Court), requires detail to be given of any other relevant Court orders, which clearly includes state and territory family violence orders. A copy of the relevant family violence order should be attached to the parenting order application and such an order is a significant hurdle for a respondent to deal with.

The court will take seriously all high level allegations, particularly if there is credible evidence (including medical evidence) to substantiate the allegations made. If the allegations made are less significant, the court does not automatically depart from the normal procedural course. Therefore, if a family violence order exists in a matter against one party, it must be of a significant enough nature for the Court to depart from usual processes and consider the matter differently. This will more likely be the case in circumstances where the police have intervened or the police have applied for the family violence order on behalf of a complainant.

5. Change to Family Law Courts Processes for serious Family Violence Allegations

When family violence allegations are considered serious and can be corroborated by strong, independent evidence the Court has mechanisms which it can employ to deal with such cases. These are discussed below.

(a) Removal of Requirement to Attend Family Dispute Resolution

Section 60I(1) FLA states that all parties to a family law children’s matter must make a genuine effort to resolve the dispute by way of family dispute resolution. However, s60I(9) FLA removes this requirement where family violence or child abuse is alleged and an applicant may go straight to the Family Law Courts, without prior mediation, for a parenting order. Where a family violence order is in force (even interim) this exemption, in practice, automatically applies.

(b) Expedited Timelines

Matters deemed to involve serious and substantiated allegations of family violence (particularly involving child abuse allegations) may have an opportunity to be expedited and treated with an increased sense of urgency. Section 60K FLA imposes an obligation on the Court to take prompt action in such cases.

(c) Increased Role of Independent Children’s Lawyer

In cases involving serious allegations, there is usually an Independent Children’s Lawyer (“ICL”) appointed. The ICL has an important role in gathering evidence and investigating materials such as police reports, state child protection agency reports and any other evidence from other relevant sources. In practice, the view of the ICL is often afforded significant weight by the Court in determining interim and final orders.

(d) Other Possible Differences To Court Procedure

Other possible differences to court procedure can include:

• Increased judicial management of the case;

• Where circumstances permit, one judge manages the case from start to finish; and/or

• Extra services can be available to the parties once a matter proceeds to court, including access to the family court consultant from the beginning of the matter.

(e) Magellan List

Serious allegations made involving physical and/or sexual abuse of children can be transferred to the Magellan list in the Family Court. Each matter within the list is, so far as is practicable, managed by the same Judge and family consultant. An ICL is mandatory and funded by Legal Aid. The relevant state child protection agency is usually ordered to investigate and report to the Court, and a family court report is also ordered. The cases within this list are expedited as much as possible, and the aim is to conclude each matter within a 6 month time frame. However, given that it is not uncommon in certain states to only have one judge presiding over the Magellan list, this list is often in practice extremely busy and stretched for personnel and other resources.

Conclusion: ‘Tips’ and ‘Traps’ in Matters Involving Family Violence Allegations

Family Court Judges and Federal Magistrates did not come down in the last shower. They have seen many family violence allegations before, and every imaginable type of violence discussed in their matters. Hence, if your client’s affidavit says they were “abused and harassed” throughout the marriage, it won’t mean much. Those words are conclusions and they are ambiguous. They mean different things to different people. Hence, you have to spell out the evidence from which the judicial officer can conclude that the behaviour is abusive. For example, say, “roughly weekly throughout the marriage the husband would come home on Friday night and scream at me that I was a no-good fucking bitch. This was in the presence of the children often.” It then becomes easy to conclude that the husband was abusive.

If your client is alleging family violence, do ensure your client has reasonable grounds upon which to base such allegations. Make sure you get details of allegations and set these out in your client’s affidavit. Enquiring as to the client’s mental health and capacity also helps to put allegations in context. One way to support family violence allegations may be to apply (whether before issuing proceedings for a parenting order or during the process) for a family violence order. Indeed, if such an application has not been issued, it may be difficult to credibly assert in you family law affidavit that the other party was violent, or that you are scared of them.

It is also important to be aware of the risk that court mechanisms (including family violence orders) can be used and exploited in cases in which allegations are untrue and/or unable to be substantiated. In some cases involving such allegations, it is possible for a Respondent to be unfairly disadvantaged from the start of the proceedings. There is an inherent possibility that a party may allege family violence to gain the ‘upper hand’ in proceedings, punish the Respondent, or merely enforce an immediate change in the arrangements between the parties. The relative ease of obtaining family violence orders through local courts means that family violence orders will remain very relevant in parenting matters.

Please visit the Family Law Practice Manual 6th edition, for more information.