LEGAL FRAMEWORKS FAMILY LAW ACT 1975 CRIMES (DOMESTIC AND PERSONAL VIOLENCE ) ACT 2007 CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION ) ACT 1998 Andrea Cotter-Moroz

FAMILY LAW ACT 1975 Andrea Cotter-Moroz

RELEVANT PROVISIONS OF FLA s4 -  "family violence " has the meaning given by subsection 4AB(1). s4 -"family violence order" means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence. Especially for FDRPs: s10H (confidentiality) - Exceptions s10J (admissibility) – Exceptions s60I(9)(b) – Exemptions in cases of abuse and family violence Andrea Cotter-Moroz

How Court takes FV into account Objects – s 60B s60B(2)(b) -  protect child from physical or psychological harm form being subjected to or exposed to abuse, neglect or family violence; Primary considerations – s 60CC(2) s60CC(2)(b) – need to protect child any family violence from physical or psychological harm form being subjected to or exposed to abuse, neglect or family violence s60CC(2A)- in applying (primary considerations) greater weight to s 60CC(2)(b) NOTE: s61DA(2) - impact of DV/abuse on parenting orders – presumption of equal shared parental responsibility does not apply Andrea Cotter-Moroz

HOW COURT TAKES FV INTO ACCOUNT Contd Additional considerations – s 60CC(3) s60CC(3)(j) - any family violence s60CC(3)(k) – if a FV order applies, or has applied, to the child/member of the child’s family – any relevant inferences from FV order taking into account the following: nature of the order circumstances in which order made Evidence admitted in the proceedings Findings made by court or in the proceedings Any other relevant matter   Andrea Cotter-Moroz

HOW COURT TAKES FV INTO ACCOUNT Contd Other Provisions : FDR and s 60I certificate/exception s60I(9)(b)– exception if Court satisfied reasonable grounds: (i) there has been abuse of child by a party; or (ii) there would be risk of abuse of child by a party; or (iii) there has been family violence by a party; or (iv) there is a risk of family violence by a party. s60J(1) – if FDR not attended because of child abuse/FV: Court must not hear application unless applicant has indicated in writing that applicant has received information from a family counsellor/FDR about services and options ( including alternatives to court action) available in circumstances of abuse/FV. s60J(2) – But ss(1) does not apply if Court satisfied on reasonable grounds that risk of abuse if delay or FV by a party   Andrea Cotter-Moroz

HOW COURT TAKES FV INTO ACCOUNT Contd s61DA -Effect on presumption of ESPR: (1) when making a parenting Order Ct must apply presumption of ESPR (2) Presumption does NOT apply if reasonable grounds to believe that a parent of a child ( or who lives with a parent) has engaged in (a) abuse of the child/another child who was member of parent’s family; or (b) family violence Andrea Cotter-Moroz

HOW COURT TAKES FV INTO ACCOUNT Contd Other provisions – practice and procedure: 60CF - obligation to inform court of FV order s60 CG - court to consider risk of family violence Div 10 Subdiv D –Allegations of child abuse and FV: s67Z- where interested person makes allegation of child abuse must file notice in approved form s67ZA - where Court personnel, family counsellor, FDR or arbitrator suspects child abuse must file notice s67ZB- no liability for notification under s 67Z/ZA s67ZBA- where interested person makes allegation of FV must file notice in approved form 67ZBB- Court to take prompt action in relation to allegations of child abuse/FV Subdivision D--Allegations of child abuse and family violence 67Z. Where interested person makes allegation of child abuse   67ZA. Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc.   67ZB. No liability for notification under section 67Z or 67ZA   67ZBA. Where interested person makes allegation of family violence   67ZBB. Court to take prompt action in relation to allegations of child abuse or family violence   Andrea Cotter-Moroz

HOW COURT TAKES FV INTO ACCOUNT Contd Div 11 – Family Violence – interaction between State FVO and FLA Parenting orders/injunctions s68 N - Purpose of Div- s68P – obligations of Court making order or injunction under FLA inconsistent with FV order s68Q – relationship of order/injunction under FLA with existing FV order s68R- Power of Court making FV order to revive, vary, discharge or suspend existing FLA order/injunction s68S Application of Act & Rules when exercising s 68R power s68T – special provisions relating to proceedings to make interim ( or vary) FVO. Andrea Cotter-Moroz

FLA interaction with State DV legislation Div 11 ss 68N-68T of 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 Andrea Cotter-Moroz

FVO followed by Parenting Order 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 eg. Police, Local Court Andrea Cotter-Moroz

Effect of inconsistent parenting order with existing FVO S 68Q - the FVO is invalid to the extent of the inconsistency with the order/injunction in s 68P Andrea Cotter-Moroz

Parenting Order followed by FVO S 68R - court making a FVO can revive, vary, discharge or suspend an existing parenting order ONLY if: It also makes/varies an FVO; and has material that was NOT before the court that made the parenting order Relevant considerations – court MUST have regard to: purposes (s 68N); whether contact with both parents is in the best interests of the child concerned ; be satisfied it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order Andrea Cotter-Moroz

Crimes (Domestic & Personal Violence) Act 2007 Andrea Cotter-Moroz

New legislation Commenced on 10 March 2008 Stand-alone Act – relating only to domestic and personal violence Replaces Part 15A Crimes Act 1900 Substantially the same provisions with some additions – clearly stated and prominent objectives; presumption of inclusion of children in AVOs; recording of offences as DVOs; automatic AVOs for victims if alleged attacked charged with serious personal violence offences s 40 Andrea Cotter-Moroz

Why a separate Act? Perception that AVO provisions were hidden at the back of the Crimes Act Procedural provisions were cumbersome and confusing Easier to do a separate Act than amend Part 15A and easier for future amendment Creating a separate Act gives full recognition to the seriousness of violence c/f concern that removal form the Crimes Act may be seen as DV demoted - is a lesser crime than those in the Crimes Act Andrea Cotter-Moroz

Offences Offence of stalking/intimidation has been deleted from the Crimes Act and is now contained in s 13 of the new Act Offence of contravening AVO is in s 14 of the new Act Introduces a new offence of domestic violence (s11) to help identify and track repeat offenders Andrea Cotter-Moroz

Key Definitions “Domestic violence offence” (s 11) means a personal violence offence against someone who has had a domestic relationship with the offender. “Personal violence offence” (s 4) is an offence under specified sections of the Crimes Act or the offence of contravening an order. Andrea Cotter-Moroz

S 12 - Recording of charges and offences Charge may indicate offence is a domestic violence offence (DV0) If plead guilty/found guilty of a domestic violence offence Court directs current offence be recorded on criminal record as DVO Prosecution can apply to Court to direct previous offence be recorded on criminal record as DVO Skip next Andrea Cotter-Moroz

Why record domestic violence offences? Intimidation ( s 7) or stalking (s 8) – court can have regard to pattern of violence Bail proceedings Sentencing Police obligations to apply for AVOs Granting of orders where PINOP has no fears but there has been previous act of violence Bail proceedings Intimidation or stalking Previous behaviour constituting a domestic violence offence is taken into account for the purpose of determining whether a person’s behaviour amounts to intimidation or stalking. Police obligations to apply for AVOs Police must apply for an order (including a provisional order) if the investigating police officer suspects or believes (among other things) that a domestic violence offence has recently been committed against the person for whose protection an order would be made. Sentencing Record of a previous conviction is an aggravating factor to be taken into account in determining an appropriate sentence Andrea Cotter-Moroz

ADVOs and Children – Pt 9 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. Andrea Cotter-Moroz

ADVOs and 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. 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 More closed courts - more court time needed on mention days. Andrea Cotter-Moroz

Implications of children on order Only police can apply for variation or extensions Less consent orders? More matters going to hearing? Children being dragged into proceedings? Who are relevant children? What are reasonable grounds not to include children on the order? Willingness and available resources of police to apply for variationss. Increased court time required. Dragging of children into proceedings. Consistency or inconsistency of magistrates views as to “reasonable grounds” Andrea Cotter-Moroz

Automatic Interim APVOs 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 finalised Aims to spare victims the trauma of being cross-examined at AVO hearing and at hearing of the criminal charge Andrea Cotter-Moroz