1. 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

2. FAMILY LAW ACT 1975
Andrea Cotter-Moroz

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

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

15. 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

16. 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

17. 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

18. 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

19. 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
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Andrea Cotter-Moroz

20. 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

21. 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

22. 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

23. 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

24. 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