Law Blog

The release of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 and the Family Violence Best Practice Principles have brought into focus the significance of domestic and family violence in the Australian family law system.

Too often as solicitors we see applications filed in the Federal Magistrate’s Court of Australia, along with a corresponding application to a local state magistrate’s court seeking a protection order (known as an ‘apprehended violence order’ or ‘restraining order’ in other jurisdictions) for matters which do not constitute ‘domestic violence’ pursuant to the provisions of the Domestic & Family Violence Act 1989 (Qld).

Such applications are often made solely to bolster one party’s application to the family courts by making the other party seem much worse than they probably are. This approach places extra burden on the state courts as a result of having to hear baseless domestic violence claims and extra expense to litigants.

A common application lawyers see made or defended is an application by one parent to add the children of the relationship to a protection order or to include the children in an original application for a protection order when there is no clear evidence of any domestic violence against the children. Often such orders are sought unnecessarily, but stop the other parent from being able to spend regular time with the children.

The Federal Magistrates Court of Australia and the Family Court of Australia have provisions for dealing with such applications and generally where it is in the best interests of the children to do so the court may make orders that allow for time to be spent between the children and the other parent even though there is a domestic violence order in place.

Federal courts like the Family Court of Australia and the Federal Magistrates Court of Australia are able to make orders in conflict with an order made by state courts due to the structure of the Australian judicial system, with the decision making power of federal courts being superior to that of state courts.

Such frivolous applications which are often made at the expense of state funded legal aid. Further, these applications for domestic violence orders can take the focus away from genuine applications made where actual domestic violence has occurred.

Courts, lawyers and policy makers need to be careful that applications for protection orders are not used as a tool simply to support family law applications and thus detract from the important social and legal need for access to domestic violence and protection orders.

Despite the misuse of protection orders by some, it is important that people are not afraid to seek protection from their local state magistrates court. Family violence is a serious problem facing Australian society and protection orders should be made to protect people who are at risk.

There is a misconception that there must be some form of independent evidence about the violence that has occurred by way of a medical certificate, for example, but in reality most instances of family violence occur between family members without witnesses present, making evidence unavailable. Courts are aware of this and are able to rely on oral testimony alone when deciding whether or not to make a protection order.

With the amended Family Law Act 1975 (Cth) and its expanded definition of family violence expected to become law in late 2011, attempts to misuse the Australian justice system with respect to protection orders may increase. It will be more important than ever for lawyers and judicial officers alike to be vigilant for this while continuing to provide victims of family violence with appropriate protection. In all cases, the discernment of an experienced family lawyer is invaluable.