The Family Law Act 1975 was amended in 2012 to broaden the definition of family violence

Family Law Courts play a crucial role in protecting children and other family members from abuse. While Australia’s Family Law Act was amended in 2012 to address family violence, a number of suggestions have been made to strengthen the judicial system’s ability to protect children and abused family members.

Family Violence

The Family Law Act 1975 was amended in 2012 to broaden the definition of family violence. Federal law now defines family violence as violent, threatening or other behaviours that either coerces or controls a family member or that causes the family member to be fearful.

Obviously, parents have an obligation to control their children, and not all acts of control or coercion constitute family violence. The law lists as examples:

• assaulting or sexually abusing a family member;
• stalking;
• making repeated derogatory taunts;
• intentionally damaging or destroying property;
• intentionally causing death or injury to an animal;
• unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
• preventing the family member from making or keeping connections with his or her family, friends or culture; and
• unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

The thrust of the law is to prevent conduct against family members that are violent or abusive. Exercising complete control over a family member in a way that prevents the family member from acting independently is regarded as abusive behaviour. Causing a family member to live in fear is also abusive.

Family Violence and the Family Law Act

Family members who have been subjected to, or reasonably fear, family violence are entitled to have a Family Law Court consider those concerns when it addresses applications for orders. Section 60J of the Family Law Act excuses applicants from complying with pretrial dispute resolution procedures when the applicant has experienced acts or threats of family violence or when a delay in entering a parenting order might enhance a risk of child abuse.

Section 67ZBB of the Family Law Act requires the court to take “prompt action” in cases where a person applies for parenting orders and files a notice alleging that the applicant or a child is at risk of or fears family violence.

If the applicant supplies satisfactory evidence in support of those allegations, the court must consider how to protect the child or any of the parties to the proceedings when it fashions a parenting order.

Magellan Program

The Magellan Program deals with Family Court cases involving serious allegations of physical and sexual child abuse. The fast-track program has been implemented in all of the court’s registries.

The Magellan Program includes:

• rigorous judicial management, including the imposition of strict timeframes for deciding cases;
• issuance of appropriate interim orders if any are needed to protect a child until the matter comes to trial;
• prompt assignment of appropriate resources, such as the appointment of an independent children’s lawyer;
• issuance of a subpoena for information from welfare and child protection authorities about the family early in the court process; and
• close liaison on case management between external information providers and a Magellan team.

A Magellan team consists of judges, registrars and family consultants. The case management teams are available at each family law registry. Ideally, each case is managed by the same team from start to finish. The goal in most cases is to complete Magellan cases within six months from the case being placed on the Magellan list.

Concerns About How Family Law Courts Address Family Violence

The National Children’s Commissioner is proposing to address concerns about family violence in the context of the family law system. Those concerns include:

A perception that people working in the family law system do not always understand or respond appropriately to family violence.

How courts resolve the conflict between the right of parents to maintain contact with their children, the need to protect children from violence, and the rights of the non-violent parent.

The perception that some court decisions do not follow the 2012 amendments to the Family Law Act by giving appropriate weight to child safety and appropriate deference to family violence orders issued by states.

The fear that violent family members can manipulate the court system as a means of controlling or abusing family members.

One of the Commissioner’s primary objectives is to expand the Magellan program, which currently operates only in cases where serious allegations are made of physical or sexual child abuse. The proposed expansion would cover all cases in which family violence is alleged.

Other bodies have recommended streamlining child protection procedures, which are now fractured among different courts. The federal Family Law Courts, state child protection courts, and courts that issue family violence protective orders would ideally communicate and coordinate their efforts to protect children from abuse.