Current as at 6th November 2015
With the new focus on domestic violence and the updated legislation, many people are questioning how these changes affect family law applications and orders. The Commonwealth Federal Circuit Court and Family Court are attempting to streamline their process to work in with the State courts in relation to domestic violence.
In the past, the Federal Circuit Court would often be frustrated by the minimal information they were provided with about domestic violence in the family. At the beginning of 2015, the Commonwealth Courts brought in a requirement that every person making an initiating application must complete a Notice of Risk which outlines specific allegations of child abuse and domestic violence. Since the commencement of this requirement, the courts have seen more cases of domestic and family violence brought to light in proceedings.
A pilot program in Brisbane Magistrates Court has instigated a referral system where if a person applies for a domestic violence order and there is a child involved, the Magistrates Court refers the person to the Federal Circuit Court. The Federal Circuit Court is notified that the person has been identified as a person who needs assistance with parenting orders which allows the court to carefully consider whether an urgent application needs to be made.
Additionally, when the Magistrates Court is considering a domestic violence application, they have the ability to amend current Federal Circuit Court orders. The law states that if a domestic violence order and Federal Circuit Court order are inconsistent then the parenting order prevails. This causes difficulty if a parenting order allows for contact but the Magistrates Court believes it is unsafe for the child. That court is able to amend the parenting order in order to protect the child from violence. However this order only stands for 21 days or until the next court date, whichever is earlier, so it is a necessity that the aggrieved party make an urgent application to the Federal Circuit Court to keep those amendments in place.
In order to streamline the communications between the Family Court and domestic violence courts, Australia is looking at model law framework for domestic violence which is constant across the country. At the moment, it is necessary to register an interstate order in a different state however if the changes are successful, a domestic violence order made in one state will be valid Australia wide. The State and the Commonwealth courts can now communicate in order to obtain orders and records from each jurisdiction to assist with the other.
These changes will hopefully assist in the protection of those subjected to family or domestic violence and ensure that every family unit is protected Australia wide.
If you need assistance with domestic violence or family law, contact Brooke Winter Solicitors and Advisers on 1300 066 669.