Changes have recently been made to the Family Law Act 1975 (Cth) (‘FL Act’) that directly relate to family violence; some changes have already come into operation, while further changes are proposed. Many of these changes aim to align state and federal laws.
Proposed changes to the Family Law Act 1975 (Cth)
Some of the changes to the FL Act were outlined in the 2016 Royal Commission into Family Violence report, while others were recommended by the Australian Law Reform Commission (ALRC) after it completed a comprehensive review of Australia’s family law system.
The final ALRC report of this review, called ‘Report 135: Family Law for the Future – An Inquiry into the Family Law System’, was tabled in federal parliament in April 2019 (available at www.alrc.gov.au). In this report, there were very few references to family violence. One recommendation was to amend the FL Act to include a statutory tort (i.e. a civil wrong) of family violence that would provide remedies that are consistent with existing common law remedies. The government responded to the ALRC report in March 2021. This recommendation was only noted; the government’s response outlined problems and lack of support from stakeholders (see ‘Government Response to ALRC Report 135’, available at www.ag.gov.au).
Another federal parliamentary committee was established in 2019 to examine Australia’s family law system. This Joint Select Committee on Australia’s Family Law System has released two interim reports but the final report is not due until late 2021.
There is also a federal parliamentary inquiry into the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (Cth). This Bill proposes the introduction of federal family violence orders to enable parties to seek protection simultaneously in parenting/property matters, rather than filing for protective orders under state or territory legislation.
Changes to family courts
On 1 September 2021, the Federal Circuit Court and the Family Court merged into the new Federal Circuit and Family Court of Australia (FCFCA).
The FCFCA has two divisions:
- Division 1 has absorbed the Family Court cases and also operates as an appeal division in all federal law matters including family law.
- Division 2 has absorbed the Federal Circuit Court cases and has jurisdiction in general federal law matters including child support and family law.
The FCFCA has a totally new case management system with new rules, new judicial officers, new names, new forms and new procedures.
It is not known how cases involving family violence will be dealt with in the FCFCA.
For more information, see https://www.fcfcoa.gov.au.
The most important change to the FL Act to date is the ban on personal cross-examination in family law cases where family violence is alleged and certain circumstances apply. For example, if a final family violence order is in place between the parties, then an unrepresented party (who is the alleged perpetrator) cannot personally cross-examine the other party (who is the alleged victim).
Cross-examination can only be done by a legal representative. The court may request assistance from Victoria Legal Aid to fund legal representation in such cases.
If a party does not have legal representation, cross-examination is not permitted or may only be permitted by the court if alternative protections are used (e.g. the cross-examination is conducted via video-link). This reform has been in operation since September 2019.