Family Court

Contributed by Camille Inifer and Shayla Strapps and current to 1 September 2005

PROCEDURES

The Family Law Act 1975 (Cth) defines family violence as ‘conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal wellbeing or safety.’

Western Australia has its own Family Court and its proceedings and decisions are exercised under both the Commonwealth Family Law Act 1975 and State Family Court Act 1997 (WA).

Disputes are covered by the Commonwealth Act where the parties are married and in any relationship where children are involved. Disputes will be covered by the State Act where the parties are in a de facto relationship and there are no children.

The approach of the Family Court to disputes between parties is through dispute resolution mechanisms, requiring the parties to participate in what are known as ‘Pre-Action Procedures’. These procedures as a rule involve mediation, counselling, negotiation, conciliation or arbitration as a means of resolving the matter without having to have the matter heard in Court: see further FAMILY .

However, in the situation of family and domestic violence, the parties can be exempted from participating in these pre-action procedures. Legal advice should be sought regarding exemption.

After an application to the Family Court has been filed, a Case Assessment Conference will be held. Where family and domestic violence is an issue, the Court needs to be informed immediately so that arrangements can be made to protect relevant individuals. Security can be arranged by the Court and parties will not be required to participate in face-to-face sessions.

Matters not resolved at this point are likely to progress to an interim hearing. Orders made at the interim hearing will be in place until a hearing can determine Final Orders.

ORDERS THAT CAN BE MADE BY THE FAMILY COURT

The Family Court has powers to make Orders in relation to family and domestic violence, including Protection Orders and Injunctions. However, the range of people able to get such orders is much more limited, the process involved is more complex and the policing of such orders, including dealing with the breaches, is more difficult than in relation to Restraining Orders.

Note the Family Court has no powers to make family violence orders covering couples in de facto relationships where there are no children. In this situation, a Restraining Order would be required.

Further information can be obtained from the Family Court of Australia website www.familycourt.gov.au or the Family Court of Western Australia website www.familycourt.wa.gov.au. Click on ‘Forms’ to access the relevant forms and kits. See also FAMILY.

Injunctions

Family Court injunctions are a means of providing personal protection to a person in a marriage or the children, against exposure to family and domestic violence.

If a person has been assaulted by their spouse, an injunction to prevent further assaults on the complainant or any child may be obtained from the Family Court. An application can also be made for the offender to vacate the family home. Breaches of such orders can result in imprisonment or a fine. These injunctions are not available to partners of a de facto relationship.

Applications for Family Court injunctions are, however, complex. Legal advice and assistance is needed so this form of protection is seldom used. Most people seek protection through a Restraining Order.

Interaction between Family Court Orders and Restraining Orders

The effects of family violence on children is clearly spelt out in the Family Law Act. When considering applications for parenting orders, the court is required to ensure children are protected from the effects of violence.

If a person has already obtained a Restraining Order under the State laws, or is in the process of seeking such an order, they cannot also apply to the Family Court for an injunction (ss.114(1) and 68B of the Family Law Act (Cth) and s. 235 of the Family Court Act (WA). However, a person may obtain an injunction and then apply for a Restraining Order.

Note also that if a Restraining Order is in place and the person protected by it was not the person who sought the Restraining Order, then that person can apply for an injunction. For example, where a Restraining Order has been sought by a woman specifically restraining her ex-partner from having contact with her, but which still provides for contact with their child, an injunction may still be sought by that woman to later also protect the child.