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Serial family violence – WA

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From 1 January 2021 new provisions regarding serial family violence commence in WA. These are the final provisions of the Family Violence Legislation Reform Act 2020. Various sections of this amending Act have commenced over the course of the year. The amendments affect the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Serial family violence

From 1 January 2021 there is a presumption against bail for a person charged with a ‘family violence offence’ who has been declared a ‘serial family violence offender’. These terms are defined in s 3 of the Bail Act.

The presumption may be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied bail may properly be granted.

Previous amendments

Practitioners will recall that the previously commenced provisions of the amending Act include:

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a ‘family relationship’ with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act 1997 define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly. The changes to these publications will be live from 1 January 2021.

The Lighthouse Project – FED

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The Lighthouse Project is a new family-violence and risk screening initiative that will run in both the Family Court and the Federal Circuit Court for parenting matters. The legislative framework is provided by the recent Family Law Amendment (Risk Screening Protections) Act 2020.

The project will be initially available in the Adelaide, Brisbane and Parramatta registries of the courts. It is scheduled to commence before the end of 2020.

The Lighthouse Project includes:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process will be referred to a dedicated list in the court. The specialist list will be known as the Evatt List. This will be a judge-managed list which will focus on early information gathering and intervention through a judge-led, dedicated support team in appropriate cases.

Both courts have a dedicated page on their websites with information about the Lighthouse Project.

The By Lawyers Family Law Children publication has been updated accordingly. Information on The Lighthouse Project has been included under Pre-Action procedures in the full commentary and on the matter plan. Practitioners are also reminded of the related information on family violence and cross-examination of parties, in the Going to court folders.

Family violence – WA

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Various legislation has been amended as a result of the Family Violence Legislation Reform (COVID-19 Response) Act 2020.

The amendments provide for:

  • applications for Family Violence Restraining Orders and Violence Restraining Orders to be made online;
  • increased flexibility for courts in allocating hearing dates and serving documents in relation to applications for restraining orders;
  • police to be able to grant bail for breaches of a Family Violence Restraining Order or a Violence Restraining Order in urban areas, consistent with their existing power in regional areas;
  • courts to be able to impose electronic monitoring requirements as part of a home detention order in relation to a restraining order, a bail condition, or a sentence.
  • new offences and penalties for interfering with electronic monitoring equipment, or failing to follow the directions of a community corrections officer for electronic monitoring.

These amendments have been incorporated in the relevant By Lawyers Guides.

See Criminal Magistrates Court, under both Bail and Sentencing and also Restraining Orders for more information.

Online applications for intervention orders – VIC

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Online applications for intervention orders are now available for family violence related matters, via the Magistrates’ Court website.

Amendments to the Family Violence Protection Act 2008 which commenced on 31 July 2019 allow an applicant to apply online, instead of attending in person at a police station or magistrates  court. Online applications for intervention orders take about 15 minutes to complete. They can be saved, amended and lodged at any time within 4 weeks of being started.

Police can also make the online application on someone’s behalf.

There is no requirement for the application to be sworn or witnessed. Rather, when completing the online application the applicant must make a declaration of truth as to the contents of the application. Making a deliberately false declaration of truth is an offence carrying serious penalties – up to 600 penalty units and 5 years imprisonment. The applicant must also acknowledge their understanding of that offence and those penalties when completing the application.

When deciding whether to make an interim order based on an online application, the Magistrates’ Court can waive the requirement that the application be supported by oral evidence or an affidavit. Before waiving the requirement the court must consider whether it is practicable to obtain oral evidence or an affidavit before the order is made.

The By Lawyers guide Intervention Orders (VIC) has been updated to cover online applications for intervention orders. This publication is located in the By Lawyers Criminal – Magistrates’ Court guide.

Assistance for potential applicants and background information on the new process is available from the Neighbourhood Justice Centre via the Magistrates’ Court website.

Family Violence Protection amendments – VIC

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Further provisions of the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 commenced on 29 March 2019.

Relevant amendments include:

  • Examples have been added to the definition of Family Violence in s 5 (10) (b) of the Family Violence Protection Act 2008;
  • Interim or final protection orders for children at the court’s own initiative have been added to s 53AB (2) and s 77B (3) of the Family Violence Protection Act 2008 where an interim or final order has not been made for  affected family member of the child;
  • A new Specialist Family Violence Court Division has been established under the Magistrates’ Court Act 1989 which has jurisdiction to deal with proceedings in respect to the Family Violence Protection Act 2008 and other relevant acts.

Corresponding updates to the By Lawyers Intervention Orders guide, found in the Magistrates’ Court Criminal and Magistrates’ Court Civil publications for Victoria, have occurred or are  underway.

Remaining provisions of the amending act commence on 1 September 2020 if not proclaimed before.

Amendments to Family Law Act – FED

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Amendments to the Family Law Act commenced 10 March 2019 relating to family violence and cross-examination of parties.

They will apply to cross-examinations occurring on 10 September 2019 and thereafter, regardless of when proceedings were instituted.

The following sections have been added to the Family Law Act 1975:

  • 102NA Mandatory protections for parties in certain cases; and
  • 102NB Court‑ordered protections in other cases.

Section 102NA provides greater protection for parties in circumstances of family violence where there are self-represented parties.

If a party intends to cross-examine the other party, in certain circumstances, they may not do so personally and cross-examination may only be conducted by a legal representative. Those circumstances are:

  1. there is an allegation of family violence between the examining party and the witness party; and
  2. any of the following are satisfied:
    • either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
    • a family violence order, other than an interim order, applies to both parties;
    • an injunction under s 68B or s 114 for the personal protection of either party is directed against the other party;
    • the court makes an order that the requirements of legal representation for cross-examination are to apply.

If a party intends to cross-examine the other party personally and there are allegations of family violence, the court must ensure that during the cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

The By Lawyers Children and Property Settlement commentaries have been updated accordingly.

Family Law Act amendments – FED

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Family Law Act amendments, contained in the Family Law Amendment (Family Violence and Other Measures) Act 2018, commenced on 1 September 2018.

By Lawyers have updated the Children and Property Settlement commentaries  in our Family Law Guide to reflect these amendments. Broadly speaking, the changes are jurisdictional and procedural, with particular emphasis on enabling the court to better address issues with family violence.

The amendments include:

Transferring property proceedings when the value of property exceeds $20,000

The legislation provides that if property proceedings are issued in a court of summary jurisdiction and the value of the property exceeds $20,000, then if the respondent seeks different orders than the applicant and one of the parties does not consent to the court dealing with the application, then the matter must be transferred to the Family Court/Federal Circuit Court, or to the relevant Supreme Court: see: s 46 and s 46A. In practice, matters are usually transferred to the Federal Circuit Court.

As a result of the amendments, these sections enable State and Territory regulations to prescribe an amount higher than $20,000. This applies to all proceedings instituted from 1 September.

Proceedings with no reasonable prospects of success

Section 45A provides that:

  1. The court may make a decree for one party against another in relation to the whole or any part of proceedings if the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings;
  2. The proceedings do not need to be hopeless or bound to fail to have no reasonable prospect of success;
  3. The court may make such a decree of its own initiative or upon application by a party;
  4. The court may make a costs order as a result of the decree; and
  5. The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

Section 118, which previously provided for the court to summarily dismiss frivolous or vexatious proceedings was repealed, effective from 1 September.

Interim parenting/Family violence orders

Section 69ZL provides that the court may give reasons in short form for a decision it makes in relation to an interim parenting order.

Section 68P(2A) which relates to the explanation provided by the court when an order is made which is inconsistent with a family violence order, provides that an explanation is not required to be given where the court is satisfied that it is in the best interests of the child not to receive an explanation.

The 21-day suspension of family law orders by a family violence order previously provided for in s 68T(1)(b) no longer applies. It has been replaced by two further options. Any revival, variation or suspension of family law orders now ceases to have effect at the earliest of:

  • the time the interim order stops being in force; and
  • the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect; and
  • the time the order, injunction or arrangement is affected by an order (however described) made by a court, under s 68R or otherwise, after the revival, variation or suspension.

See the commentaries in the By Lawyers Family Law Guide for more information.

VIC – Intervention orders – Relationship with bail conditions

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The By Lawyers commentaries have been updated to deal with recent amendments to the Family Violence Protection Act 2008 by the Bail Amendment (Stage One) Bill 2017.

These changes, regarding the relationship between bail conditions, safety notices and intervention orders, are now covered in the VIC Criminal Magistrates’ Court Commentary and the Intervention Orders Commentary.

 

Family Law Rules – changes as of 1 March 2018

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As of 1 March 2018, changes came into effect in relation to consent orders in the Family Court.

The relevant By Lawyers publications, Children and Property Settlement, have been updated. The new forms have been linked to the matter plans and the commentary additions consist of the following:

Children changes

What was previously the annexure to consent parenting orders is now incorporated into the Application for Consent Orders form. A separate annexure is no longer required.

Three new forms were added for use in the Family Court.

The Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders) must be filed with the Application for consent orders if parenting orders are sought and a party has said at item 25 of the Application there has been, or is a risk of child abuse, neglect or family violence.

The second form is the Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case). This form is now only for where cases are on foot: not for consent orders.

A third new form is the Submitting Notice. This form may be filed in Family Court proceedings if a party has been served with an Initiating Application, Response to Initiating Application, Reply or a Notice of Appeal, and does not want to contest the relief sought: Family Law Rules r 8.07.

Property Settlement changes

Previously, if the consent orders contained a provision for a superannuation splitting order, you had to ensure that a superannuation information form had been completed by the Trustee of the relevant super fund or a valuation had been obtained to the superannuation interest. However, as of 1 March 2018, a superannuation kit is no longer required. Proof of value of the interest is required to be filed with the Application.

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