Victims of family violence can seek protection via an intervention order. Police can also seek intervention orders without a victim’s consent. Orders can prohibit a variety of actions by a perpetrator. Injunctions or restraining orders also have a role to play. Refuges and Centrelink can all help protect victims.

Trigger warning

Please note this chapter (and pages it links to) contains information about family violence that may be triggering to family violence survivors.

Contributor

Renata Alexander

Barrister

Changes to the Family Law Act and the family courts

Last updated

1 July 2021

Changes have recently been made to the 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

Some of the changes to the FL Act were outlined in the 2016 RCFV 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 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

From 1 September 2021, the Federal Circuit Court and the Family Court will merge into the new Federal Circuit and Family Court of Australia (FCFCA).

The FCFCA will have two divisions:

  • Division 1 will absorb the Family Court cases and also operate as an appeal division in all federal law matters including family law.
  • Division 2 will absorb the Federal Circuit Court cases and will have jurisdiction in general federal law matters including child support and family law.

The FCFCA will have 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.

Cross-examination ban

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.

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