As discussed in Chapter 8, a federal family court must have regard to a number of considerations when making a parenting order including the need to protect children from physical or psychological harm as a result of being subjected to, or exposed to, family violence. Additional considerations that a court may take into account include:
- any family violence involving the child or a member of the child’s family (s 60CC(3)(j)); and
- any family violence order that applies to the child or a member of the child’s family, provided the order is a final order or its making was contested (s 60CC(3)(k)).
Prior to amendments in 2006, s 68F of the Family Law Act (the former equivalent of s 60CC), directed the court to consider any family violence order that applied to the child or a member of the child’s family. The amendments in 2006 narrowed this consideration to only a final or a contested family violence order in order to ‘address a perception that violence allegations are taken into account without proven foundation in some family law proceedings’.
All state and territory family violence acts include provisions that allow a court to make a final protection order by consent or ‘by consent without admission of liability’. The making of such an order without admission of liability enables a protection order to be made urgently, while also protecting a respondent’s legal rights with respect to any pending criminal charges he or she may be facing. However, the Commissions have heard that the notation ‘without admissions’ is commonly added to orders by consent, even where there are no pending or likely criminal charges.
During consultations, a number of stakeholders raised concerns that, in family law proceedings, courts did not give sufficient weight to the fact that one party had obtained a protection order against the other. In particular, some stakeholders expressed the view that courts should be able to consider interim protection orders, and protection orders made by consent, as well as final and contested orders.
However, where a protection order is made by consent without admission of liability, the court is not required to make any findings as to whether the grounds for making the order are satisfied—meaning that a court has not determined whether there was in fact family violence. In such cases, it is argued that the fact of a protection order should have little or no weight in family law proceedings where family violence is alleged.
The Commissions note that making an order by consent without admissions will be appropriate in some circumstances, such as where the respondent is facing criminal charges for related conduct and does not want to prejudice that trial. There are a number of options for reform to ensure that orders made by consent ‘without admissions’ are used appropriately. One option is to ensure that the notation on protection orders and court files specifically states that the order is made by consent ‘without admission as to criminal liability of the allegations in the application for the protection order’.
Other options for reform are directed to improving the scrutiny and quality of the consent process. Judicial officers should be required to ensure that the victim agrees to the court making consent orders without admission of liability—agreement to orders by consent on such grounds should not be implied from the application alone.
Secondly, courts should satisfy themselves that consent orders give attention to the safety of victims of family violence. Courts should assure themselves that the victim of family violence has considered the practical implications of consenting to the order and, in particular, to any variations to the terms sought in the original application. There may be circumstances where it would be appropriate for the court to request a safety plan in writing to accompany the making of the protection order by consent. For example, a safety plan may cover matters such as how to facilitate contact with children safely, or access to the family home.
Finally, courts should ensure that the parties are aware of the consequences of consenting to a protection order without admission of liability. This is particularly important if parties are unrepresented or if there are concurrent or pending family law proceedings.
Proposal 10–1 Judicial officers, when making a protection order under state or territory family violence legislation by consent without admissions, should ensure that:
- the notation on protection orders and court files specifically states that the order is made by consent ‘without admission as to criminal liability of the allegations in the application for the protection order’;
- the applicant has an opportunity to oppose an order being made by consent without admissions;
- the order gives attention to the safety of victims, and, if appropriate, requires that a written safety plan accompanies the order; and
- the parties are aware of the practical consequences of consenting to a protection order without admission of liability.
The Commissions understand that a victim of family violence may wish to avoid a contest in court and therefore agree to withdraw his or her application for a protection order on the basis that the respondent gives an undertaking to the court not to engage in family violence or other proscribed conduct. However, the acceptance of undertakings can compromise the safety of victims of family violence because a breach of an undertaking—unlike a breach of a protection order—is not a criminal offence.
Accordingly, the Commissions consider that, prior to accepting an undertaking from a respondent, the court should be satisfied that the applicant understands the implications of withdrawing the application and relying instead on undertakings to the court from the respondent. The respondent should also understand that, in accepting an undertaking rather than pursuing an application for a protection order, the applicant is not precluded from making a further application if the respondent does not honour the undertaking, or the applicant continues to be at risk of family violence.
The Commissions are interested in stakeholder views on how these objectives may be achieved. Some options for reform include: legislative provisions directing judicial officers, when accepting an undertaking, to explain these matters to the parties; judicial training and education; or a requirement that the court forms used to take written undertakings note that an undertaking is not enforceable, and that, by accepting an undertaking, the applicant is not precluded from making a further application for a protection order.
In the Commissions’ preliminary view, undertakings should generally be given in writing, rather than orally to the court. Undertakings given in writing mean that both parties can have a copy of the undertakings, and reduce the potential for ambiguity or confusion about the scope or content of the undertakings.
The Commissions are interested in hearing whether proceedings in which undertakings have been given, instead of a protection order being made, return to court on allegations of breach of the undertaking, or further family violence. The Commissions are also interested in hearing whether, in practice, persons who have provided undertakings to the court, or victims of family violence who accept such undertakings, inform a federal family court of the existence of such undertakings as part of their evidence of family violence in family law proceedings.
Proposal 10–2 Before accepting an undertaking to the court from a person against whom a protection order is sought, a court should ensure that:
- the applicant for the protection order understands the implications of relying on an undertaking to the court given by the respondent, rather than continuing with their application for a protection order;
- the respondent understands that the applicant’s acceptance of an undertaking does not preclude further action by the applicant to address family violence, if necessary; and
- the undertaking is in writing.
Question 10–1 What practical reforms could be implemented in order to achieve the objectives set out in Proposal 10–2?
Question 10–2 In practice, do victims of family violence, who rely on undertakings to the court from a person against whom a protection order is sought, often return to court because the undertaking has been breached, or to seek further protection from family violence?
Question 10–3 In practice, do victims of family violence who rely on undertakings to the court from a person against whom a protection order is sought inform federal family courts of the existence of such undertakings during family law proceedings?