Changes have recently been made to the FL A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. A civil wrong that causes harm, intentionally or otherwise. A person affected by a tort can take action in court to claim compensation for damage caused by the wrong, or an injunction to stop the wrong continuing. (i.e. a civil wrong) of family violence that would provide remedies that are consistent with existing (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. 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 A change made to a legal document or Act of parliament. (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 Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute..
Changes to family courts
From 1 September 2021, the Federal Circuit An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. and the Family Court A document that sets out what a person wants to happen to their money and other property after they die. 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 The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. division in all federal law matters including family law.
- Division 2 will absorb the Federal Circuit Court cases and will have The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. 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.
The most important change to the FL Act to date is the ban on personal An opposing party’s questioning of a witness in a court case. Questioning of your own side’s witness is called examination in chief. in family law cases where family violence is Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. and certain circumstances apply. For example, if a final family violence order is in place between the parties, then an unrepresented A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. (who is the alleged A person who commits a crime. See also offender.) 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.