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The Family Court and Family Violence

Separation is an extremely difficult time. Those difficulties, and in some cases dangers, can be exacerbated for those who experienced family violence in their relationship. We discuss navigating the Family Court in WA after family violence.

Parties at the end of a relationship involving family violence may find themselves involved in proceedings in the Family Court of Western Australia, if they cannot agree about the post-separation arrangements that are in the best interests of their children.

For many, the Court process is daunting. Fear and intimidation from a former partner add to the stress and anxiety that most people experience while Family Court proceedings are on foot.

In the Family Court of Western Australia in 2020, Family Consultants conducting assessment conferences identified family and domestic violence as a risk issue in 82% of cases.[1]

The purpose of this article is to outline some of the resources and special arrangements available for those who have experienced family violence and are involved in Family Court proceedings. It is not an exhaustive list of resources or arrangements available.

Definition of Family Violence

Under the Family Law Act 1975 (the legislation that applies to married couples in Western Australia), family violence means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, but are not limited to:

  • An assault
  • A sexual assault or other sexually abusive behaviour; or
  • Stalking; or
  • Repeated derogatory taunts; or
  • Intentionally damaging or destroying property; or
  • Intentionally causing death or injury to an animal; or
  • Unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
  • Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
  • Preventing the family member from making or keeping connections with his or her family, friends or culture; or
  • Unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

Exemptions from Family Dispute Resolution

The Family Court encourages parties to reach agreement about what is in the best interests of their children, before applying to the Court for orders. To that end, to apply for Family Court orders, generally, parties must attempt Family Dispute Resolution first.

That requirement does not apply where there has been family violence, and parties may proceed with making an application for parenting orders by completing the relevant exemption form.

Special Arrangements for Court Attendance

Usually, during Court proceedings before a judicial officer, both parties are required to be in the same Court room and will usually wait in the same area for their matter to be called. For those who have concerns about their safety, the Court can make special arrangements for their attendance, including:

  • Attending from an offsite location by telephone.
  • Attending from an offsite location by video-link.
  • Attending from an onsite location (in a separate room to the other parties) by video-link.
  • Separate waiting areas inside the Court.
  • Separate entry and exit points from the Court building, or
  • A security escort to and from the entry to the Court building to the Court room.

It is important to provide the Family Court with advance notice of any special requirements, so they have time to process your request.

Cross-Examination Scheme

Most people settle their family court matter without needing a trial.

If a trial is required to determine parenting or financial matters, or both, then provided certain circumstances are met,[2] the Court will not permit one party to cross-examine the other. Instead, any self-represented party would be allocated a legal practitioner to conduct the cross-examination, funded by the Commonwealth Government.

In WA, the funding scheme can presently be accessed by litigants who were married to each other and is run by Legal Aid WA.  On 9 December 2021, the funding scheme will extend to WA litigants who were not married to each other.[3]

Behaviour Change Programs

Where appropriate and in the best interests of the children, the Court has the power to order parties who have perpetrated family violence to enrol in and attend behaviour change programs and parenting courses.

Services Outside of The Court System

Outside of the Family Court system, there are a range of services available for parents and families who have experienced family violence. They include:

You may also be eligible to apply for a Family Violence Restraining Order.

Get in Touch With Our Family Lawyers

If you would like advice in this area please contact Kori O’Meehan at komeehan@bbvlegal.com.au.

Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a Fixed Fee Price basis.


[1] Family Court of Western Australia Annual Review 2020, at p 13

https://www.familycourt.wa.gov.au/_files/Publications_Reports/FCWA_Annual_Review_2020.pdf

[2] see section 102NA of the Family Law Act 1975 for married couples

[3] See sections 219AJ – 219AL of the Family Court Act 1997. The Family Court Amendment Act (WA) 2021 No 16 of 2021 received Royal Assent on 9 September 2021.  Under Division 3 of that Act, the Commonwealth cross-examination scheme will apply to de facto couples from 9 December 2021 onwards.

 

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