Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Family Law Act 1975, to provide protection for Registrars of certain federal courts, and for related purposes
Administered by: Attorney-General's
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 24 Mar 2021
Introduced HR 24 Mar 2021
Table of contents.

2019‑2020‑2021

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Family Law Amendment (Federal Family Violence Orders) Bill 2021

 

No.      , 2021

 

(Attorney‑General)

 

 

 

A Bill for an Act to amend the Family Law Act 1975, to provide protection for Registrars of certain federal courts, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 3

Schedule 1—Main amendments                                                                                    4

Part 1—Amendments                                                                                                    4

Family Law Act 1975                                                                                                  4

Part 2—Transitional, saving and application provisions                            54

Schedule 2—Consequential amendments                                                              57

Part 1—Main consequential amendments                                                         57

A New Tax System (Family Assistance) Act 1999                                                57

Social Security Act 1991                                                                                          57

Social Security (Administration) Act 1999                                                           57

Part 2—Other consequential amendments                                                       58

Division 1—Contingent amendments                                                                    58

Federal Circuit Court of Australia Act 1999                                                       58

Division 2—Amendments consequential to the Federal Circuit and Family Court of Australia Act 2021     58

Family Law Act 1975                                                                                                58

Federal Circuit and Family Court of Australia Act 2021                                 59

Schedule 3—Other amendments commencing on Royal Assent             60

Family Law Act 1975                                                                                                60

Schedule 4—Protections for Registrars                                                                  61

Part 1—Amendments to the Federal Circuit and Family Court of Australia Act 2021  61

Federal Circuit and Family Court of Australia Act 2021                                 61

Part 2—Amendments to the Family Law Act 1975                                    62

Family Law Act 1975                                                                                                62

 

 


A Bill for an Act to amend the Family Law Act 1975, to provide protection for Registrars of certain federal courts, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Family Law Amendment (Federal Family Violence Orders) Act 2021.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

3.  Schedule 2, Part 1

At the same time as the provisions covered by table item 2.

 

4.  Schedule 2, Part 2, Division 1

At the same time as the provisions covered by table item 2.

However, the provisions do not commence at all if Schedule 3 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 commences before the commencement of the provisions covered by table item 2.

 

5.  Schedule 2, Part 2, Division 2

The later of:

(a) immediately after the commencement of the provisions covered by table item 2; and

(b) immediately after the commencement of Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021.

 

6.  Schedule 3

The day this Act receives the Royal Assent.

 

7.  Schedule 4, Part 1

The later of:

(a) the start of the day this Act receives the Royal Assent; and

(b) immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021.

 

8.  Schedule 4, Part 2

The later of:

(a) the start of the day this Act receives the Royal Assent; and

(b) immediately after the commencement of Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Main amendments

Part 1Amendments

Family Law Act 1975

1  Subsection 4(1)

Insert:

federal family violence order:

                     (a)  in relation to a child:

                              (i)  means an order under section 68AC; and

                             (ii)  includes such an order as varied under section 68AI; and

                     (b)  in relation to a party to a marriage:

                              (i)  means an order under section 113AC; and

                             (ii)  includes such an order as varied under section 113AI.

2  Subsection 4(1)

Insert:

listed court means each of the following:

                     (a)  the Family Court;

                     (b)  the Federal Circuit Court of Australia;

                     (c)  the Family Court of Western Australia;

                     (d)  the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, sitting at any place in Western Australia.

3  Subsection 4(1) (paragraph (e) of the definition of matrimonial cause)

Omit “section 114AB”, substitute “paragraph 68NA(1)(b), 68NA(2)(b), 114AB(1)(b) or 114AB(2)(b)”.

4  Subsection 4(1) (paragraph (b) of the definition of order under this Act affecting children)

Repeal the paragraph, substitute:

                     (b)  an order made, or injunction granted, by the court:

                              (i)  under section 68AC or 68B; or

                             (ii)  under section 114 to the extent that it relates to the personal protection of a child; or

5  Subsection 4(1) (paragraph (g) of the definition of order under this Act affecting children)

Omit “and includes an order, injunction, plan or bond that:”.

6  Subsection 4(1) (before paragraph (h) of the definition of order under this Act affecting children)

Insert:

and includes an order, injunction, plan or bond that:

7  Subsection 4(1)

Insert:

protected person:

                     (a)  for a federal family violence order in relation to a child:

                              (i)  means a person for whom the order provides personal protection under subsection 68AC(3) or paragraph 68AI(3)(b); and

                             (ii)  has a meaning affected by subsections 68AC(4) and 68AI(4); and

                     (b)  for a federal family violence order in relation to a party to a marriage—means the person for whom the order provides personal protection under subsection 113AC(3).

8  Section 60C (table item 9)

Repeal the item, substitute:

 

9A

Division 9A—Federal family violence orders in relation to children

·           applying for a federal family violence order in relation to a child

·           powers of a listed court to make a federal family violence order in relation to a child

·           offence for breaching a federal family violence order in relation to a child

·           varying, revoking or suspending a federal family violence order in relation to a child

Note 1:    Federal family violence orders in relation to parties to a marriage are dealt with in Division 2 of Part XIV.

Note 2:    There are limits on applying for and making a federal family violence order if a family violence order made under a State or Territory law also provides protection for the same person: see subsection 68AB(2) and paragraph 68AC(6)(c).

Note 3:    See also Subdivision C of Division 11 of this Part which deals with the relationship between orders made under Division 9A and family violence orders made under a State or Territory law, including the powers of State and Territory courts to suspend or revoke a federal family violence order in relation to a child.

9

Division 9—Other orders and injunctions in relation to children (other than federal family violence orders)

·           proceedings for orders and injunctions in relation to a child (other than federal family violence orders)

Note:       Orders and injunctions in relation to parties to a marriage (other than federal family violence orders) are dealt with in Division 3 of Part XIV.

9  Section 60C (table item 11)

Repeal the item, substitute:

 

11

Division 11—Relationship with family violence orders made under State and Territory laws

·           the concurrent operation of prescribed State and Territory laws

·           the relationship between federal family violence orders made under this Part and family violence orders made under a State or Territory law

·           the relationship between other injunctions granted under this Part (or under certain other provisions of this Act) that provide for personal protection, and family violence orders

·           the relationship between orders and injunctions made under this Act that provide for a child to spend time with a person, or require or authorise a person to spend time with a child, and family violence orders

10  Subsection 60CB(2)

Repeal the subsection, substitute:

             (2)  This Subdivision also applies to proceedings, in relation to a child, to which any of the following provisions apply:

                     (a)  subsection 60G(2);

                     (b)  subsection 63F(2) or (6);

                     (c)  subsection 68AD(6) (including that provision as applied under section 68AJ);

                     (d)  section 68R.

11  Paragraph 60CC(3)(k)

After “if a”, insert “federal family violence order or a”.

12  Subsection 67ZBB(5)

Repeal the subsection, substitute:

             (5)  Without limiting subparagraph (2)(a)(ii), the court must consider if either of the following should be made or granted:

                     (a)  a federal family violence order under section 68AC;

                     (b)  an order or injunction under section 68B.

13  After Division 8 of Part VII

Insert:

Division 9AFederal family violence orders in relation to children

68AA  What this Division does

                   This Division deals with federal family violence orders in relation to children.

Note 1:       For provisions about federal family violence orders in relation to parties to a marriage, see Division 2 of Part XIV.

Note 2:       For provisions about the relationship between orders made under this Division and family violence orders made under a State or Territory law, see Subdivision C of Division 11 of this Part.

68AB  Applying for federal family violence order

             (1)  Any of the following persons may apply to a listed court for a federal family violence order in relation to a child:

                     (a)  a party to proceedings under this Part that relate to the child;

                     (b)  a party to proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) (to the extent that the proceedings relate to the child);

                     (c)  an independent children’s lawyer who represents the interests of the child in proceedings under this Part.

Note 1:       For the definition of listed court, see subsection 4(1).

Note 2:       Proceedings covered by paragraph (e) of the definition of matrimonial cause in subsection 4(1) are proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

             (2)  However, a person may not apply under subsection (1) for a federal family violence order to provide for the personal protection of a person (the first person) and that is directed against another person (the second person) if there is a family violence order in force that applies for the protection of the first person and that is directed against the second person.

Note 1:       For the definition of family violence order, see subsection 4(1).

Note 2:       In addition, parties to proceedings under this Part must inform the court if a family violence order applies to the child or a member of the child’s family: see section 60CF.

68AC  Court may make federal family violence order

Power of court to make order

             (1)  In proceedings under this Part that relate to a child, or proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) (to the extent that the proceedings relate to a child), a listed court may, in accordance with this section, make an order (a federal family violence order) in relation to the child.

Note:          A federal family violence order can be made under this section only by a listed court (as defined in subsection 4(1)). However, a State or Territory court in proceedings for a family violence order may revoke or suspend a federal family violence order made under this section in certain circumstances: see section 68NB.

             (2)  The court may make the order on application under section 68AB or of its own motion.

Protected persons

             (3)  The order may provide for the personal protection of any one or more of the following persons (each of whom is a protected person covered by the order):

                     (a)  the child;

                     (b)  a parent of the child;

                     (c)  a person with whom the child is to live under a parenting order;

                     (d)  a person with whom the child is to spend time under a parenting order;

                     (e)  a person with whom the child is to communicate under a parenting order;

                      (f)  a person who has parental responsibility for the child.

             (4)  However, a person stops being a protected person covered by the order:

                     (a)  if the person is the child—when the child turns 18; or

                     (b)  if the person is a person mentioned in any of paragraphs (3)(b) to (f):

                              (i)  for an order that relates to only one child—when the child turns 18; or

                             (ii)  for an order that relates to 2 or more children—when the youngest of those children turns 18.

Person against whom the order is directed

             (5)  The order must be directed against a single person.

Matters court must be satisfied of before making order

             (6)  The court must not make the order, or provide for the personal protection of a protected person under the order, unless:

                     (a)  the court considers that it is appropriate for the welfare of the child; and

                     (b)  the court is satisfied on the balance of probabilities that:

                              (i)  the protected person has been subjected to family violence or, if the protected person is the child, subjected or exposed to family violence; or

                             (ii)  there are reasonable grounds to suspect that the protected person is likely to be subjected to family violence or, if the protected person is the child, is likely to be subjected or exposed to family violence; and

                     (c)  the court is satisfied that there is no family violence order in force that is:

                              (i)  for the protection of the protected person; and

                             (ii)  directed against the person against whom the federal family violence order is directed.

Note 1:       For the definitions of family violence and exposed to family violence, see section 4AB.

Note 2:       In relation to paragraph (c):

(a)    for the definition of family violence order, see subsection 4(1); and

(b)    see subsection (7) of this section about the obligations of the court in satisfying itself that there is no family violence order in force; and

(c)    failure to comply with paragraph (6)(c) of this section does not affect the validity of the order: see subsection (14).

Note 3:       The court must also take account of other matters in making decisions under this section: see subsection (9).

Avoiding inconsistency with family violence orders

             (7)  In satisfying itself for the purposes of paragraph (6)(c), the court must inspect any record, database or register that:

                     (a)  contains information in any form (including in electronic form) about family violence orders; and

                     (b)  is maintained by a Department, agency or authority of the Commonwealth, or of a State or Territory; and

                     (c)  is, or can reasonably be made, available to the court.

Note:          In 2021, such information was maintained by the Australian Criminal Intelligence Commission through the National Police Reference System.

Terms of order

             (8)  The court may make the order, and provide for the personal protection of a protected person under the order, on the terms it considers appropriate for the welfare of the child, including any of the following terms:

                     (a)  prohibiting the person against whom the order is directed from subjecting the protected person to family violence, or, if the protected person is the child, subjecting or exposing the child to family violence;

                     (b)  prohibiting the person against whom the order is directed from contacting the protected person;

                     (c)  prohibiting the person against whom the order is directed from being within a specified distance of the protected person;

                     (d)  prohibiting the person against whom the order is directed from being within a specified distance of a specified place or area that the protected person is, or is likely to be, located;

                     (e)  prohibiting the person against whom the order is directed from attempting to locate the protected person;

                      (f)  prohibiting the person against whom the order is directed from causing, or attempting to cause, another person to engage in conduct in relation to the protected person that would, if the conduct were done by the person against whom the order is directed, breach the order;

                     (g)  requiring the person against whom the order is directed to leave a place or area if:

                              (i)  that person is at that place or area at a particular time; and

                             (ii)  the protected person is at that same place or area at the same time; and

                            (iii)  the protected person requests the person against whom the order is directed to leave the place or area, or if the protected person is the child, the parent or guardian of the child requests the person against whom the order is directed to leave the place or area; and

                            (iv)  the person making the request considers that the protected person is at imminent risk of being subjected to family violence at that time, or if the protected person is the child, subjected or exposed to family violence at that time;

                     (h)  any other term that the court considers reasonably necessary to ensure the personal protection of the protected person.

Court to take account of other matters

             (9)  The court, in making a decision under this section, must take into account:

                     (a)  as the primary consideration—the safety and welfare of the child, including the need to protect the child from being subjected or exposed to family violence; and

                     (b)  as an additional consideration—any of the following matters that the court considers relevant:

                              (i)  the matters set out in subsections 60CC(2) (applied in accordance with subsection 60CC(2A)) and (3);

                             (ii)  any criminal history of the person against whom the order is directed;

                            (iii)  whether that person has been charged with any criminal offences;

                            (iv)  any previous violent conduct of that person towards the protected person;

                             (v)  if the protected person is a person mentioned in any of paragraphs (3)(b) to (f)—the effect of any family violence or risk of family violence on the protected person’s ability to provide care for the child;

                            (vi)  any other matter.

Note 1:       The court is to take into account the matters mentioned in paragraph (a) and subparagraph (b)(i) (if applicable) regardless of whether the order is for the personal protection of the child or a person mentioned in any of paragraphs (3)(b) to (f).

Note 2:       For subparagraph (b)(i), subsections 60CC(2), (2A) and (3) are about determining the best interests of the child.

           (10)  In applying the considerations set out in subsection (9), the court is to give greater weight to the consideration set out in paragraph (9)(a) than the considerations set out in paragraph (9)(b).

Form of order

           (11)  The order must be in the form prescribed by the regulations.

           (12)  The order must specify:

                     (a)  the child that the order relates to, or if the order relates to 2 or more children, each child that the order relates to; and

                     (b)  each protected person covered by the order; and

                     (c)  if the order relates to 2 or more children and provides for the personal protection of a person mentioned in any of paragraphs (3)(b) to (f)—the child that the person is a protected person in relation to; and

                     (d)  the person against whom the order is directed; and

                     (e)  the terms of the order; and

                      (f)  if there are 2 or more protected persons covered by the order—which terms of the order apply in relation to each protected person.

Court to consider other injunctions

           (13)  If:

                     (a)  a person applied for a federal family violence order in relation to a child under section 68AB to provide personal protection for a person (the proposed protected person); and

                     (b)  the court does not provide for the personal protection of the proposed protected person under the order because either or both of the following apply:

                              (i)  the court does not consider that providing for the personal protection of the proposed protected person under the order is appropriate for the welfare of the child for the purposes of paragraph (6)(a);

                             (ii)  the court is not satisfied of the matters in paragraph (6)(b) in relation to the proposed protected person;

the court must consider if an injunction under section 68B should be granted in relation to the child that is for the personal protection of the proposed protected person.

Note:          The court may also consider if an injunction should be granted under section 68B in relation to the child that is for the personal protection of certain other persons.

Validity not affected

           (14)  Failure to comply with paragraph (6)(c) or subsection (7) or (11) does not affect the validity of the order.

68AD  Court must give reasons for decision and copies of federal family violence order

Reasons for decision

             (1)  A court must give reasons for a decision whether to make a federal family violence order in relation to a child as soon as practicable after making the decision.

Copies of order

             (2)  As soon as practicable after making the order, the court must cause a copy of the order to be made available to:

                     (a)  each of the parties to the proceedings in which the order is made; and

                     (b)  each protected person covered by the order (if that person is not a party to the proceedings); and

                     (c)  the person against whom the order is directed (if that person is not a party to the proceedings).

             (3)  The copy of the order must include a statement to the effect that the order comes into force:

                     (a)  if the person against whom the order is directed is before the court when the order is made—at that time; or

                     (b)  otherwise—when the order is served on the person against whom the order is directed, but the order has no effect and is unenforceable unless and until it is served.

Explanation of order

             (4)  The court must explain (or arrange for someone else to explain) to each of the parties to the proceedings in which the order is made in language that the person is likely to readily understand:

                     (a)  when the order comes into force and the period for which it is in force; and

                     (b)  if the person against whom the order is directed is not before the court—that the order does not come into force until it is served on that person, and the order has no effect and is unenforceable unless and until it is served.

             (5)  Subsection (4) does not apply in relation to a person who:

                     (a)  has not appeared before the court in relation to the order; or

                     (b)  is represented by a legal practitioner.

Order not to be made available etc. to child unless in best interests

             (6)  The court is not to cause a copy of the order to be made available under subsection (2), or an explanation to be given under subsection (4), to the child unless the court is satisfied that it is in the child’s best interests to have the order made available or explained. However, the court may instead:

                     (a)  cause a copy of the order to be made available to an independent children’s lawyer representing the child’s interest or to another person that the court considers appropriate; and

                     (b)  cause an explanation to be given to a person that the court considers appropriate.

             (7)  In determining whether it is satisfied as described in subsection (6), the court:

                     (a)  must have regard to the matters set out in subsection 60CC(2) (applied in accordance with subsection 60CC(2A)); and

                     (b)  despite subsection 60CC(1), may have regard to any or all of the matters set out in subsection 60CC(3).

Validity not affected

             (8)  Failure to comply with this section does not affect the validity of the order.

Note:          Although failure to comply with this section (including by not giving copies of the order) does not affect the validity of the order, failure to serve the order will affect enforceability: see subsection 68AF(1).

68AE  Service of federal family violence order

             (1)  A federal family violence order in relation to a child must be served, in accordance with the requirements prescribed for the purposes of subsection (2), on the person against whom the order is directed.

             (2)  The regulations or the Rules of Court, or both, may provide for and in relation to the service of a federal family violence order.

             (3)  Without limiting subsection (2), the regulations or the Rules of Court may provide for and in relation to who is to bear the cost of service.

             (4)  Failure to comply with subsection (1) does not affect the validity of the order.

Note:          However, failure to serve the order will affect enforceability: see subsection 68AF(1).

68AF  When federal family violence order is in force

When order comes into force

             (1)  A federal family violence order in relation to a child comes into force:

                     (a)  if the person against whom the order is directed is before the court when the order is made—at that time; or

                     (b)  otherwise—when the order is served on the person against whom the order is directed, but the order has no effect and is unenforceable unless and until it is served.

When order ceases to be in force

             (2)  The order ceases to be in force at the earliest of the following times:

                     (a)  the time specified in the order;

                     (b)  if the order is revoked under section 68AI or 68NB—when the court revokes the order;

                     (c)  if the order relates to only one child—when the child turns 18;

                     (d)  if the order relates to 2 or more children—when the youngest of those children turns 18.

Effect of suspension

             (3)  If the order is suspended under section 68AI or 68NB, the order ceases to have effect and is unenforceable until the suspension ceases to be in force.

Note:          For when the suspension ceases to be in force, see sections 68AL and 68NB.

68AG  Offence for breaching federal family violence order

Offence

             (1)  A person commits an offence if:

                     (a)  a federal family violence order made under this Division is in force; and

                     (b)  the order is directed against the person; and

                     (c)  the person engages in conduct; and

                     (d)  the conduct breaches a term of the order.

Note 1:       Conduct that breaches a federal family violence order may also constitute an offence against the relevant State or Territory law.

Note 2:       See subsection (5) about when conduct does not breach a term of the order.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

No consideration of evidence of self‑induced intoxication

             (2)  Despite subsections 8.2(3) and (4) of the Criminal Code, evidence of self‑induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, whether:

                     (a)  conduct was accidental; or

                     (b)  a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

             (3)  Despite subsection 8.4(1) of the Criminal Code, evidence of self‑induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, in relation to any part of a defence that is based on actual knowledge or belief, whether that knowledge or belief existed.

No extension of criminal responsibility

             (4)  Section 11.2 or 11.2A of the Criminal Code (complicity, common purpose and joint commission) does not apply in relation to conduct engaged in by a person if:

                     (a)  as a result of the conduct:

                              (i)  the person would be taken under section 11.2 of the Criminal Code to commit an offence under subsection (1) of this section; or

                             (ii)  the person would be taken to commit an offence referred to in subsection 11.2A(2) or (3) of the Criminal Code; and

                     (b)  the person is a protected person covered by the order referred to in subsection (1) of this section.

Conduct where order suspended etc.

             (5)  To avoid doubt, conduct does not breach a term of the order for the purposes of subsection (1) if:

                     (a)  the order is suspended under section 68AI or 68NB; or

                     (b)  the term of the order relates to a person who is no longer a protected person covered by the order.

Note 1:       For the effect of suspension of the order, see subsection 68AF(3).

Note 2:       For when a person stops being a protected person, see subsections 68AC(4) and 68AI(4).

Definitions

             (6)  In this section:

conduct includes an act or omission.

68AH  Applying to vary, revoke or suspend federal family violence order

                   Any of the following persons may apply to a listed court for a federal family violence order in relation to a child to be varied, revoked or suspended:

                     (a)  a protected person covered by the order;

                     (b)  the person against whom the order is directed;

                     (c)  an independent children’s lawyer who represents the interests of the child in proceedings under this Part;

                     (d)  if the child is a protected person covered by the order:

                              (i)  a party to proceedings under this Part that relate to the child; or

                             (ii)  a party to proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) (to the extent that the proceedings relate to the child); or

                            (iii)  a parent of the child; or

                            (iv)  a person with whom the child is to live under a parenting order; or

                             (v)  a person with whom the child is to spend time under a parenting order; or

                            (vi)  a person with whom the child is to communicate under a parenting order; or

                           (vii)  a person who has parental responsibility for the child.

68AI  Court may vary, revoke or suspend federal family violence order

Power of court to vary, revoke or suspend order

             (1)  A listed court may, in accordance with this section, vary, revoke or suspend a federal family violence order in relation to a child.

Note 1:       For the definition of listed court, see subsection 4(1). However, see subsection (10) of this section in relation to certain limits on the Family Court of Western Australia and the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

Note 2:       See also section 68NB (State or Territory court in proceedings for family violence order may revoke or suspend federal family violence order).

             (2)  The court may vary, revoke or suspend the order on application under section 68AH or of its own motion.

Protected persons

             (3)  The court may vary the order:

                     (a)  in relation to a protected person covered by the order; and

                     (b)  to provide for the personal protection of a person (the new protected person) who is:

                              (i)  mentioned in any of paragraphs 68AC(3)(a) to (f); and

                             (ii)  not already a protected person covered by the order.

             (4)  However, if the court varies the order to provide for the personal protection of a new protected person under paragraph (3)(b), the person stops being a protected person covered by the order:

                     (a)  if the person is the child—when the child turns 18; or

                     (b)  if the person is a person mentioned in any of paragraphs 68AC(3)(b) to (f):

                              (i)  for an order that relates to only one child—when the child turns 18; or

                             (ii)  for an order that relates to 2 or more children—when the youngest of those children turns 18.

Person against whom the order is directed

             (5)  The court must not vary the order to direct the order against another person.

Matters court must be satisfied of before varying, revoking or suspending order

             (6)  The court must not vary, revoke or suspend the order unless:

                     (a)  the court considers that it is appropriate for the welfare of the child; and

                     (b)  the court is satisfied that either of the following apply:

                              (i)  there is a change in circumstances since the order was made;

                             (ii)  the court has before it material that was not before the court that made the order; and

                     (c)  if the court varies the order to provide for the personal protection of a new protected person, the court is satisfied that:

                              (i)  paragraph 68AC(6)(b) applies in relation to the new protected person; and

                             (ii)  there is no family violence order in force that applies for the protection of the new protected person and that is directed against the person against whom the federal family violence order is directed.

Note 1:       For the definition of family violence order, see subsection 4(1).

Note 2:       The court must also take account of other matters in making decisions under this section: see subsection (9).

Avoiding inconsistency with family violence orders

             (7)  In satisfying itself for the purposes of subparagraph (6)(c)(ii), the court must inspect any record, database or register that:

                     (a)  contains information in any form (including in electronic form) about family violence orders; and

                     (b)  is maintained by a Department, agency or authority of the Commonwealth, or of a State or Territory; and

                     (c)  is, or can reasonably be made, available to the court.

Note:          In 2021, such information was maintained by the Australian Criminal Intelligence Commission through the National Police Reference System.

Terms of variation

             (8)  If the court varies the order, the court may make the variation on the terms it considers appropriate for the welfare of the child, including any of the terms mentioned in subsection 68AC(8).

Court to take account of other matters

             (9)  In exercising its power under this section, the court must take into account the matters in subsection 68AC(9) in accordance with subsection 68AC(10).

Family Court of Western Australia and Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia

           (10)  The Family Court of Western Australia and the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia may not vary, revoke or suspend a federal family violence order in relation to a child under this section in proceedings to make or vary a family violence order.

Note:          However, in proceedings to make or vary a family violence order, the court may revoke or suspend the federal family violence order in certain circumstances: see section 68NB.

Form of variation, revocation or suspension

           (11)  The variation, revocation or suspension must be in the form prescribed by the regulations.

           (12)  If the court varies the order, the variation must specify the matters mentioned in subsection 68AC(12) as so varied.

Court to consider other injunctions

           (13)  If:

                     (a)  a person applied for a federal family violence order in relation to a child to be varied under section 68AH to provide for the personal protection of a person (the proposed protected person) who is not already a protected person covered by the order; and

                     (b)  the court does not vary the order to provide for the personal protection of the proposed protected person because either or both of the following apply:

                              (i)  the court does not consider that so varying the order is appropriate for the welfare of the child for the purposes of paragraph (6)(a) of this section;

                             (ii)  the court is not satisfied of the matters in paragraph 68AC(6)(b) in relation to the proposed protected person;

the court must consider if an injunction under section 68B should be granted in relation to the child that is for the personal protection of the proposed protected person.

Note:          The court may also consider if an injunction should be granted under section 68B in relation to the child that is for the personal protection of certain other persons.

Validity not affected

           (14)  Failure to comply with subparagraph (6)(c)(ii) or subsection (7) or (11) does not affect the validity of the variation, revocation or suspension.

           (15)  To avoid doubt, the court may vary or revoke the federal family violence order even if the order is:

                     (a)  not in force in accordance with subsection 68AF(1); or

                     (b)  suspended under section 68AI or 68NB.

68AJ  Court must give reasons for decision and copies of variation

                   Section 68AD applies in relation to:

                     (a)  a decision to vary, revoke or suspend a federal family violence order under section 68AI; and

                     (b)  if the court varies the order under section 68AI—the variation;

as if the decision or variation were made under section 68AC.

68AK  Service of variation

             (1)  A variation of a federal family violence order must be served, in accordance with the requirements prescribed for the purposes of subsection (2), on the person against whom the order is directed.

             (2)  The regulations or the Rules of Court, or both, may provide for and in relation to the service of a variation of a federal family violence order.

             (3)  Without limiting subsection (2), the regulations or the Rules of Court may provide for and in relation to who is to bear the cost of service.

             (4)  Failure to comply with subsection (1) does not affect the validity of the variation.

Note:          However, failure to serve the variation will affect enforceability: see subsection 68AL(1).

68AL  When variation, revocation or suspension is in force

             (1)  A variation, revocation or suspension of a federal family violence order comes into force:

                     (a)  in the case of a variation:

                              (i)  if the person against whom the order is directed is before the court when the variation is made—at that time; or

                             (ii)  otherwise—when the variation is served on the person against whom the order is directed, but the variation has no effect and is unenforceable unless and until it is served; or

                     (b)  in the case of a revocation or suspension—when the court revokes or suspends the order.

             (2)  A suspension ceases to be in force at the earlier of the following times:

                     (a)  the time specified in the suspension;

                     (b)  when the suspension is revoked.

14  Division 9 of Part VII (heading)

Repeal the heading, substitute:

Division 9Orders and injunctions in relation to children (other than federal family violence orders)

15  Section 68A

Repeal the section, substitute:

68A  What this Division does

                   This Division deals with proceedings for orders and injunctions in relation to children, other than federal family violence orders.

Note:          For federal family violence orders in relation to children, see Division 9A.

16  Section 68B (heading)

Repeal the heading, substitute:

68B  Orders and injunctions (other than federal family violence orders)

17  Before subsection 68B(1)

Insert:

Power of court to make orders and injunctions

18  After subsection 68B(1)

Insert:

Limit on power of the court where there is family violence

          (1A)  However, if the court is a listed court:

                     (a)  before granting an injunction under paragraph (1)(a) or (b) that is for the personal protection of a person from family violence, the court must consider if it would be appropriate to make a federal family violence order providing for the personal protection of the person; and

                     (b)  the court must not grant an injunction under paragraph (1)(a) or (b) that is for the personal protection of a person from family violence if the court could make a federal family violence order providing for the personal protection of the person.

Note 1:       For the definition of listed court, see subsection 4(1). For the definition of family violence, see section 4AB.

Note 2:       For federal family violence orders in relation to children, see Division 9A.

Note 3:       For federal family violence orders in relation to parties to a marriage, see Division 2 of Part XIV.

Avoiding inconsistency with family violence orders

          (1B)  A person must not apply for an injunction under paragraph (1)(a) or (b) that is for the personal protection of a person (the first person) and that is directed against another person (the second person) if there is a family violence order in force that is:

                     (a)  for the protection of the first person; and

                     (b)  directed against the second person; and

                     (c)  in relation to the same matter that is the subject of the application.

Note:          For the definition of family violence order, see subsection 4(1).

          (1C)  The court must not grant an injunction under paragraph (1)(a) or (b) that is for the personal protection of a person (the first person) and that is directed against another person (the second person) unless the court is satisfied that the injunction is not inconsistent with any family violence order that is in force and that is:

                     (a)  for the protection of the first person; and

                     (b)  directed against the second person.

Note:          A family violence order made under a State or Territory law that is inconsistent with an injunction made under this section that provides for the personal protection of a person is invalid to the extent of the inconsistency: see section 68PB.

          (1D)  In satisfying itself for the purposes of subsection (1C), the court must inspect any record, database or register that:

                     (a)  contains information in any form (including in electronic form) about family violence orders; and

                     (b)  is maintained by a Department, agency or authority of the Commonwealth, or of a State or Territory; and

                     (c)  is, or can reasonably be made, available to the court.

Note:          In 2021, such information was maintained by the Australian Criminal Intelligence Commission through the National Police Reference System.

Court may make other injunctions

19  Before subsection 68B(3)

Insert:

Terms and conditions

20  At the end of section 68B

Add:

Validity not affected

             (4)  Failure to comply with subsection (1A), (1B), (1C) or (1D) does not affect the validity of the injunction.

21  Section 68C

Repeal the section.

22  Division 11 of Part VII (heading)

Repeal the heading, substitute:

Division 11Relationship with family violence orders made under State and Territory laws

23  Section 68N

Repeal the section, substitute:

Subdivision AWhat this Division does

68N  What this Division does

             (1)  This Division deals with:

                     (a)  the relationship between Division 9A and other laws; and

                     (b)  the relationship between Division 9 and other laws;

and includes provisions dealing with the following:

                     (c)  the concurrent operation with prescribed State and Territory laws;

                     (d)  the relationship between federal family violence orders made under this Part and family violence orders;

                     (e)  the relationship between:

                              (i)  injunctions granted under this Part, or under certain other provisions of this Act, that provide for personal protection (other than federal family violence orders); and

                             (ii)  family violence orders;

                      (f)  the relationship between:

                              (i)  orders, injunctions and arrangements made or granted under this Act that provide for a child to spend time with a person, or require or authorise a person to spend time with a child; and

                             (ii)  family violence orders.

             (2)  This Division has the following purposes:

                     (a)  to resolve inconsistencies between federal family violence orders made under this Part and family violence orders;

                     (b)  to resolve inconsistencies between:

                              (i)  injunctions granted under this Part, or under certain other provisions of this Act, that provide for personal protection (other than federal family violence orders); and

                             (ii)  family violence orders;

                     (c)  to resolve inconsistencies between:

                              (i)  orders, injunctions and arrangements made or granted under this Act that provide for a child to spend time with a person, or require or authorise a person to spend time with a child; and

                             (ii)  family violence orders;

                     (d)  to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (c)(i) do not expose people to family violence;

                     (e)  to achieve the objects and principles in section 60B.

24  After section 68N

Insert:

Subdivision BConcurrent operation of laws

68NA  Concurrent operation of certain State and Territory laws

State or Territory laws and federal family violence orders

             (1)  Division 9A is not intended to exclude or limit the operation of a law of a State or Territory that is:

                     (a)  capable of operating concurrently with that Division; and

                     (b)  prescribed by the regulations for the purposes of this paragraph.

Note:          However, a family violence order made under a State or Territory law that is inconsistent with a federal family violence order made under Division 9A is invalid to the extent of the inconsistency: see section 68ND.

State or Territory laws and other orders and injunctions made under this Part or certain other provisions of this Act

             (2)  Division 9 is not intended to exclude or limit the operation of a law of a State or Territory that is:

                     (a)  capable of operating concurrently with that Division; and

                     (b)  prescribed by the regulations for the purposes of this paragraph.

Note:          However, a family violence order made under a State or Territory law that is inconsistent with an injunction made under Division 9 is invalid to the extent of the inconsistency: see section 68PB.

Subdivision CRelationship between federal family violence orders and family violence orders

68NB  State or Territory court in proceedings for family violence order may revoke or suspend federal family violence order

Application of this section

             (1)  This section applies if:

                     (a)  there are proceedings in a State or Territory court to make or vary a family violence order that is:

                              (i)  for the protection of a person (the first person); and

                             (ii)  directed against another person (the second person); and

                     (b)  the State or Territory court has jurisdiction under this Part.

Note:          For the definition of family violence order, see subsection 4(1).

Power of court to revoke or suspend federal family violence order

             (2)  The State or Territory court may, subject to subsections (3) to (5), revoke or suspend a federal family violence order made under Division 9A that is:

                     (a)  for the protection of the first person (and any other person); and

                     (b)  directed against the second person.

Note:          This subsection applies to federal family violence orders that are in relation to children. For revocation or suspension of a federal family violence order in relation to parties to a marriage by a State or Territory court in proceedings to make or vary a family violence order, see section 114AC.

             (3)  However, the State or Territory court may:

                     (a)  suspend the federal family violence order only in proceedings to make an interim family violence order or an interim variation of a family violence order; and

                     (b)  revoke the federal family violence order only in proceedings to make a final family violence order or a final variation of a family violence order.

             (4)  The State or Territory court may revoke or suspend the federal family violence order only if it also makes or varies a family violence order that is:

                     (a)  for the protection of the first person and any other person for whom the federal family violence order provides personal protection; and

                     (b)  directed against the second person.

Matters court must take into account

             (5)  In exercising its power under subsection (2), the State or Territory court must have regard to:

                     (a)  whether the federal family violence order is adequate or is appropriate for the welfare of the child; and

                     (b)  the purposes of this Division (see subsection 68N(2)).

Reasons for decision

             (6)  The State or Territory court must give reasons for a decision to revoke or suspend a federal family violence order as soon as practicable after making the decision.

When revocation or suspension comes into force

             (7)  The revocation or suspension of the federal family violence order comes into force at the later of the following times:

                     (a)  when the State or Territory court revokes or suspends the order;

                     (b)  when the family violence order, or variation of the family violence order, mentioned in subsection (4) comes into force and is enforceable.

When suspension ceases to be in force

             (8)  If the State or Territory court suspends the federal family violence order, the suspension ceases to be in force when the interim family violence order ceases to have effect.

Registration of revocation or suspension

             (9)  The regulations may require a copy of the State or Territory court’s decision to revoke or suspend a federal family violence order to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

68NC  Application of Act etc. when exercising section 68NB power

                   The following provisions do not apply to a State or Territory court exercising the power under section 68NB (including in proceedings to make an interim family violence order or an interim variation of a family violence order):

                     (a)  section 69N (requirement to transfer certain proceedings);

                     (b)  any provision that would otherwise make the best interests of the child the paramount consideration;

                     (c)  a provision of this Act, or of the regulations or of the Rules of Court, that is specified in the regulations for the purposes of this paragraph.

68ND  Family violence order that is inconsistent with federal family violence order

                   A family violence order that is inconsistent with a federal family violence order made under Division 9A is invalid to the extent of the inconsistency.

Subdivision DRelationship between orders and injunctions under this Act (other than federal family violence orders) and family violence orders

68PA  Application of this Subdivision

                   This Subdivision does not apply in relation to federal family violence orders.

Note:          See Subdivision C of this Division for provisions dealing with the relationship between federal family violence orders made under this Part and family violence orders.

68PB  Family violence order that is inconsistent with injunction for personal protection (other than federal family violence orders)

                   A family violence order that is inconsistent with an injunction granted under section 68B that is for the personal protection of a person is invalid to the extent of the inconsistency.

25  Subsection 68P(1)

Omit “This”, substitute “Subject to subsection (1A), this”.

26  After subsection 68P(1)

Insert:

          (1A)  However, this section does not apply in relation to an injunction mentioned in subparagraph (1)(a)(iii) if the injunction provides for the personal protection of a person.

27  Before subsection 68Q(1)

Insert:

          (1A)  This section does not apply in relation to an injunction mentioned in subparagraph 68P(1)(a)(iii) if the injunction provides for the personal protection of a person.

Note:          For inconsistency between such injunctions for personal protection and family violence orders, see section 68PB.

28  At the end of subsection 70NAA(1)

Add “(other than federal family violence orders)”.

29  Section 70NAB

Omit “Despite”, substitute “(1) Despite”.

30  At the end of section 70NAB

Add:

             (2)  This Division does not apply in relation to federal family violence orders.

31  After subparagraph 102NA(1)(c)(ii)

Insert:

                           (iia)  a federal family violence order made under section 68AC or 113AC applies for the personal protection of either party and is directed against the other party;

32  Before Division 1 of Part XIIIA

Insert:

Division 1AApplication of this Part

112AAA  Application of this Part

                   This Part does not apply in relation to federal family violence orders.

33  Part XIV (heading)

Repeal the heading, substitute:

Part XIVOrders, declarations and injunctions in relation to parties to a marriage

34  Before section 112A

Insert:

Division 1Preliminary

35  After section 112A

Insert:

113A  Informing court of relevant family violence orders

             (1)  In proceedings under Division 2 or 3, if a party to a marriage (the first party) is aware that there is a family violence order in force that applies to either party, the first party must inform the court of the family violence order.

Note:          For the definition of family violence order, see subsection 4(1).

             (2)  If a person who is not a party to the marriage (the first person) is aware that a family violence order applies to either party to the marriage, the first person may inform the court of the family violence order.

             (3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

36  Before section 113

Insert:

Division 2Federal family violence orders in relation to parties to a marriage

113AA  What this Division does

                   This Division deals with federal family violence orders in relation to the parties to a marriage.

Note 1:       For provisions about federal family violence orders in relation to children, see Division 9A of Part VII.

Note 2:       For provisions about the relationship between orders made under this Division and family violence orders made under a State or Territory law, see Subdivision C of Division 4 of this Part.

113AB  Applying for federal family violence order

             (1)  In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) between the parties to a marriage, either party to the marriage may apply to a listed court for a federal family violence order in relation to a party to the marriage.

Note 1:       Proceedings covered by paragraph (e) of the definition of matrimonial cause in subsection 4(1) are proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

Note 2:       For the definition of listed court, see subsection 4(1).

             (2)  However, a person may not apply under subsection (1) for a federal family violence order to provide for the personal protection of a person (the first person) and that is directed against another person (the second person) if there is a family violence order in force that applies for the protection of the first person and that is directed against the second person.

Note 1:       For the definition of family violence order, see subsection 4(1).

Note 2:       In addition, in proceedings under this Division, the parties to a marriage must inform the court if they are aware that there is a family violence order in force that applies to a party to the marriage: see section 113A.

113AC  Court may make federal family violence order

Power of court to make order

             (1)  In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1) between the parties to a marriage, a listed court may, in accordance with this section, make an order (a federal family violence order) in relation to a party to the marriage.

Note:          A federal family violence order can be made under this section only by a listed court (as defined in subsection 4(1)). However, a State or Territory court in proceedings for a family violence order may revoke or suspend a federal family violence order in relation to a party to a marriage in certain circumstances: see section 114AC.

             (2)  The court may make the order on application under section 113AB or of its own motion.

Protected person and person against whom the order is directed

             (3)  The order may provide for the personal protection of a party to the marriage (the protected person) and must be directed against the other party to the marriage.

Matters court must be satisfied of before making order

             (4)  The court must not make the order unless:

                     (a)  the court considers that the order is appropriate in the circumstances; and

                     (b)  the court is satisfied on the balance of probabilities that:

                              (i)  the protected person has been subjected to family violence; or

                             (ii)  there are reasonable grounds to suspect that the protected person is likely to be subjected to family violence; and

                     (c)  the court is satisfied that there is no family violence order in force that is:

                              (i)  for the protection of the protected person; and

                             (ii)  directed against the other party to the marriage.

Note 1:       For the definition of family violence, see section 4AB.

Note 2:       In relation to paragraph (c):

(a)    for the definition of family violence order, see subsection 4(1); and

(b)    see subsection (5) of this section about the obligations of the court in satisfying itself that there is no family violence order in force; and

(c)    failure to comply with paragraph (4)(c) of this section does not affect the validity of the order: see subsection (12).

Note 3:       The court must also take account of other matters in making decisions under this section: see subsection (7).

Avoiding inconsistency with family violence orders

             (5)  In satisfying itself for the purposes of paragraph (4)(c), the court must inspect any record, database or register that:

                     (a)  contains information in any form (including in electronic form) about family violence orders; and

                     (b)  is maintained by a Department, agency or authority of the Commonwealth, or of a State or Territory; and

                     (c)  is, or can reasonably be made, available to the court.

Note:          In 2021, such information was maintained by the Australian Criminal Intelligence Commission through the National Police Reference System.

Terms of order

             (6)  The court may make the order, and provide for the personal protection of a protected person under the order, on the terms it considers appropriate in the circumstances, including any of the following terms:

                     (a)  prohibiting the person against whom the order is directed from subjecting the protected person to family violence;

                     (b)  prohibiting the person against whom the order is directed from contacting the protected person;

                     (c)  prohibiting the person against whom the order is directed from being within a specified distance of the protected person;

                     (d)  prohibiting the person against whom the order is directed from being within a specified distance of a specified place or area that the protected person is, or is likely to be, located;

                     (e)  prohibiting the person against whom the order is directed from attempting to locate the protected person;

                      (f)  prohibiting the person against whom the order is directed from causing, or attempting to cause, another person to engage in conduct in relation to the protected person that would, if the conduct were done by the person against whom the order is directed, breach the order;

                     (g)  requiring the person against whom the order is directed to leave a place or area if:

                              (i)  that person is at that place or area at a particular time; and

                             (ii)  the protected person is at that same place or area at the same time; and

                            (iii)  the protected person requests the person against whom the order is directed to leave the place or area; and

                            (iv)  the protected person considers themselves to be at imminent risk of being subjected to family violence at that time;

                     (h)  any other term that the court considers reasonably necessary to ensure the personal protection of the protected person.

Court to take account of other matters

             (7)  The court, in making a decision under this section, must take into account:

                     (a)  as the primary consideration—the safety and welfare of the protected person, including the need to protect the person from being subjected to family violence; and

                     (b)  as an additional consideration—any of the following matters that the court considers relevant:

                              (i)  any criminal history of the person against whom the order is directed;

                             (ii)  whether that person has been charged with any criminal offences;

                            (iii)  any previous violent conduct of that person towards the protected person;

                            (iv)  any other matter.

             (8)  In applying the considerations set out in subsection (7), the court is to give greater weight to the consideration set out in paragraph (7)(a) than the considerations set out in paragraph (7)(b).

Form of order

             (9)  The order must be in the form prescribed by the regulations.

           (10)  The order must specify:

                     (a)  the protected person covered by the order; and

                     (b)  the person against whom the order is directed; and

                     (c)  the terms of the order.

Court to consider other injunctions

           (11)  If:

                     (a)  a person applied for a federal family violence order in relation to the parties to a marriage under section 113AB to provide personal protection for a person (the proposed protected person); and

                     (b)  the court does not provide for the personal protection of the proposed protected person under the order because either or both of the following apply:

                              (i)  the court does not consider that providing for the personal protection of the proposed protected person under the order is appropriate in the circumstances for the purposes of paragraph (4)(a);

                             (ii)  the court is not satisfied of the matters in paragraph (4)(b) in relation to the proposed protected person;

the court must consider if an injunction under section 114 should be granted in relation to the parties to the marriage that is for the personal protection of the proposed protected person.

Validity not affected

           (12)  Failure to comply with paragraph (4)(c) or subsection (5) or (9) does not affect the validity of the order.

113AD  Court must give reasons for decision and copies of federal family violence order

Reasons for decision

             (1)  A court must give reasons for a decision whether to make a federal family violence order in relation to a party to a marriage as soon as practicable after making the decision.

Copies of order

             (2)  As soon as practicable after making the order, the court must cause a copy of the order to be made available to both of the parties.

             (3)  The copy of the order must include a statement to the effect that the order comes into force:

                     (a)  if the person against whom the order is directed is before the court when the order is made—at that time; or

                     (b)  otherwise—when the order is served on the person against whom the order is directed, but the order has no effect and is unenforceable unless and until it is served.

Explanation of order

             (4)  The court must explain (or arrange for someone else to explain) to both of the parties, in language that the party is likely to readily understand:

                     (a)  when the order comes into force and the period for which it is in force; and

                     (b)  if the person against whom the order is directed is not before the court—that the order does not come into force until it is served on that person, and the order has no effect and is unenforceable unless and until it is served.

             (5)  Subsection (4) does not apply in relation to a person who:

                     (a)  has not appeared before the court in relation to the order; or

                     (b)  is represented by a legal practitioner.

Validity not affected

             (6)  Failure to comply with this section does not affect the validity of the order.

Note:          Although failure to comply with this section (including by not giving copies of the order) does not affect the validity of the order, failure to serve the order will affect enforceability: see subsection 113AF(1).

113AE  Service of federal family violence order

             (1)  A federal family violence order in relation to a party to a marriage must be served, in accordance with the requirements prescribed for the purposes of subsection (2), on the person against whom the order is directed.

             (2)  The regulations or the Rules of Court, or both, may provide for and in relation to the service of a federal family violence order.

             (3)  Without limiting subsection (2), the regulations or the Rules of Court may provide for and in relation to who is to bear the cost of service.

             (4)  Failure to comply with subsection (1) does not affect the validity of the order.

Note:          However, failure to serve the order will affect enforceability: see subsection 113AF(1).

113AF  When federal family violence order is in force

When order comes into force

             (1)  A federal family violence order comes into force:

                     (a)  if the person against whom the order is directed is before the court when the order is made—at that time; or

                     (b)  otherwise—when the order is served on the person against whom the order is directed, but the order has no effect and is unenforceable unless and until it is served.

When order ceases to be in force

             (2)  The order ceases to be in force at the earlier of the following times:

                     (a)  the time specified in the order;

                     (b)  if the order is revoked under section 113AI or 114AC—when the court revokes the order.

Effect of suspension

             (3)  If the order is suspended under section 113AI or 114AC, the order ceases to have effect and is unenforceable until the suspension ceases to be in force.

Note:          For when the suspension ceases to be in force, see sections 113AL and 114AC.

113AG  Offence for breaching federal family violence order

Offence

             (1)  A person commits an offence if:

                     (a)  a federal family violence order made under this Division is in force; and

                     (b)  the order is directed against the person; and

                     (c)  the person engages in conduct; and

                     (d)  the conduct breaches a term of the order.

Note 1:       Conduct that breaches a federal family violence order may also constitute an offence against the relevant State or Territory law.

Note 2:       See subsection (5) about when conduct does not breach a term of the order.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

No consideration of evidence of self‑induced intoxication

             (2)  Despite subsections 8.2(3) and (4) of the Criminal Code, evidence of self‑induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, whether:

                     (a)  conduct was accidental; or

                     (b)  a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

             (3)  Despite subsection 8.4(1) of the Criminal Code, evidence of self‑induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, in relation to any part of a defence that is based on actual knowledge or belief, whether that knowledge or belief existed.

No extension of criminal responsibility

             (4)  Section 11.2 or 11.2A of the Criminal Code (complicity, common purpose and joint commission) does not apply in relation to conduct engaged in by a person if:

                     (a)  as a result of the conduct:

                              (i)  the person would be taken under section 11.2 of the Criminal Code to commit an offence under subsection (1) of this section; or

                             (ii)  the person would be taken to commit an offence referred to in subsection 11.2A(2) or (3) of the Criminal Code; and

                     (b)  the person is a protected person covered by the order referred to in subsection (1) of this section.

Conduct where order suspended

             (5)  To avoid doubt, conduct does not breach a term of the order for the purposes of subsection (1) if the order is suspended under section 113AI or 114AC.

Note:          For the effect of suspension of the order, see subsection 113AF(3).

Definitions

             (6)  In this section:

conduct includes an act or omission.

113AH  Applying to vary, revoke or suspend federal family violence order

                   Either of the following persons may apply to a listed court for a federal family violence order in relation to a party to the marriage to be varied, revoked or suspended:

                     (a)  the protected person covered by the order;

                     (b)  the person against whom the order is directed.

113AI  Court may vary, revoke or suspend federal family violence order

Power of court to vary, revoke or suspend order

             (1)  A listed court may, in accordance with this section, vary, revoke or suspend a federal family violence order in relation to a party to a marriage.

Note 1:       For the definition of listed court, see subsection 4(1). However, see subsection (7) of this section in relation to certain limits on the Family Court of Western Australia and the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

Note 2:       See also section 114AC (State or Territory court in proceedings for family violence order may revoke or suspend federal family violence order).

             (2)  The court may vary, revoke or suspend the order on application under section 113AH or of its own motion.

Protected person and person against whom the order is directed

             (3)  The court must not vary the order to:

                     (a)  provide for the personal protection of a person who is not already a protected person covered by the order; or

                     (b)  direct the order against another person.

Note:          However, the court could make a federal family violence order in relation to a child, including a child of the marriage, under section 68AC.

Matters court must be satisfied of before varying, revoking or suspending order

             (4)  The court must not vary, revoke or suspend the order unless:

                     (a)  the court considers that it is appropriate in the circumstances; and

                     (b)  the court is satisfied that either of the following apply:

                              (i)  there is a change in circumstances since the order was made;

                             (ii)  the court has before it material that was not before the court that made the order.

Terms of variation

             (5)  If the court varies the order, the court may make the variation on the terms it considers appropriate in the circumstances, including any of the terms mentioned in subsection 113AC(6).

Court to take account of other matters

             (6)  In exercising its power under this section, the court must take into account the matters in subsection 113AC(7) in accordance with subsection 113AC(8).

Family Court of Western Australia and Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia

             (7)  The Family Court of Western Australia and the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia may not vary, revoke or suspend a federal family violence order in relation to a party to a marriage under this section in proceedings to make or vary a family violence order.

Note:          However, in proceedings to make or vary a family violence order, the court may revoke or suspend the federal family violence order in certain circumstances: see section 114AC.

Form of variation, revocation or suspension

             (8)  The variation, revocation or suspension must be in the form prescribed by the regulations.

             (9)  If the court varies the order, the variation must specify the matters mentioned in subsection 113AC(10) as so varied.

Validity not affected

           (10)  Failure to comply with subsection (8) does not affect the validity of the variation, revocation or suspension.

           (11)  To avoid doubt, the court may vary or revoke a federal family violence order even if the order is:

                     (a)  not in force in accordance with subsection 113AF(1); or

                     (b)  suspended under section 113AI or 114AC.

113AJ  Court must give reasons for decision and copies of variation

                   Section 113AD applies in relation to:

                     (a)  a decision to vary, revoke or suspend a federal family violence order under section 113AI; and

                     (b)  if the court varies the order under section 113AI—the variation;

as if the decision or variation were made under section 113AC.

113AK  Service of variation

             (1)  A variation of a federal family violence order must be served, in accordance with the requirements prescribed for the purposes of subsection (2), on the person against whom the order is directed.

             (2)  The regulations or the Rules of Court, or both, may provide for and in relation to the service of a variation of a federal family violence order.

             (3)  Without limiting subsection (2), the regulations or the Rules of Court may provide for and in relation to who is to bear the cost of service.

             (4)  Failure to comply with subsection (1) does not affect the validity of the variation.

Note:          However, failure to serve the variation will affect enforceability: see subsection 113AL(1).

113AL  When variation, revocation or suspension is in force

             (1)  A variation, revocation or suspension of a federal family violence order comes into force:

                     (a)  in the case of a variation:

                              (i)  if the person against whom the order is directed is before the court when the variation is made—at that time; or

                             (ii)  otherwise—when the variation is served on the person against whom the order is directed, but the variation has no effect and is unenforceable unless and until it is served; or

                     (b)  in the case of a revocation or suspension—when the court revokes or suspends the order.

             (2)  A suspension ceases to be in force at the earlier of the following times:

                     (a)  the time specified in the suspension;

                     (b)  when the suspension is revoked.

Division 3Orders, declarations and injunctions in relation to parties to a marriage (other than federal family violence orders)

113AM  What this Division does

                   This Division deals with proceedings for orders and injunctions in relation to the parties to a marriage, other than federal family violence orders.

Note:          For federal family violence orders in relation to parties to a marriage, see Division 2.

37  Section 114 (heading)

Repeal the heading, substitute:

114  Orders and injunctions (other than federal family violence orders)

38  Before subsection 114(1)

Insert:

Power of court to make orders and injunctions

39  After subsection 114(1)

Insert:

Limit on power of the court where there is family violence

          (1A)  However, if the court is a listed court:

                     (a)  before granting an injunction under paragraph (1)(a) that is for the personal protection of a person from family violence, the court must consider if it would be appropriate to make a federal family violence order providing for the personal protection of the person; and

                     (b)  the court must not grant an injunction under paragraph (1)(a) that is for the personal protection of a person from family violence if the court could make a federal family violence order providing for the personal protection of the person.

Note 1:       For the definition of listed court, see subsection 4(1). For the definition of family violence, see section 4AB.

Note 2:       For federal family violence orders in relation to parties to a marriage, see Division 2.

Note 3:       For federal family violence orders in relation to children, see Division 9A of Part VII.

Avoiding inconsistency with family violence orders

          (1B)  A person must not apply for an injunction under paragraph (1)(a) that is for the personal protection of a person (the first person) and that is directed against another person (the second person) if there is a family violence order in force that is:

                     (a)  for the protection of the first person; and

                     (b)  directed against the second person; and

                     (c)  in relation to the same matter that is the subject of the application.

Note:          For the definition of family violence order, see subsection 4(1).

          (1C)  The court must not grant an injunction under paragraph (1)(a) that is for the personal protection of a person (the first person) and that is directed against another person (the second person) unless the court is satisfied that the injunction is not inconsistent with any family violence order that is in force and that is:

                     (a)  for the protection of the first person; and

                     (b)  directed against the second person.

Note:          A family violence order made under a State or Territory law that is inconsistent with an injunction made under this section that provides for the personal protection of a person is invalid to the extent of the inconsistency: see section 114AF.

          (1D)  In satisfying itself for the purposes of subsection (1C), the court must inspect any record, database or register that:

                     (a)  contains information in any form (including in electronic form) about family violence orders; and

                     (b)  is maintained by a Department, agency or authority of the Commonwealth, or of a State or Territory; and

                     (c)  is, or can reasonably be made, available to the court.

Note:          In 2021, such information was maintained by the Australian Criminal Intelligence Commission through the National Police Reference System.

40  Before subsection 114(2A)

Insert:

De facto financial causes

41  Before subsection 114(3)

Insert:

Court may make other injunctions

42  Before subsection 114(4)

Insert:

Bankrupt or insolvent parties

43  At the end of section 114

Add:

Validity not affected

             (8)  Failure to comply with subsection (1A), (1B), (1C) or (1D) does not affect the validity of the injunction.

44  Sections 114AA and 114AB

Repeal the sections, substitute:

Division 4Relationship with family violence orders made under State and Territory laws

Subdivision AWhat this Division does

114AA  What this Division does

             (1)  This Division deals with:

                     (a)  the relationship between Division 2 and other laws; and

                     (b)  the relationship between Division 3 and other laws;

and includes provisions dealing with the following:

                     (c)  the concurrent operation with prescribed State and Territory laws;

                     (d)  the relationship between federal family violence orders made under this Part and family violence orders;

                     (e)  the relationship between:

                              (i)  injunctions granted under this Part that provide for personal protection (other than federal family violence orders); and

                             (ii)  family violence orders.

             (2)  This Division has the following purposes:

                     (a)  to resolve inconsistencies between federal family violence orders made under this Part and family violence orders;

                     (b)  to resolve inconsistencies between:

                              (i)  injunctions granted under this Part that provide for personal protection (other than federal family violence orders); and

                             (ii)  family violence orders.

Subdivision BConcurrent operation of laws

114AB  Concurrent operation of certain State and Territory laws

State or Territory laws and federal family violence orders

             (1)  Division 2 is not intended to exclude or limit the operation of a law of a State or Territory that is:

                     (a)  capable of operating concurrently with that Division; and

                     (b)  prescribed by the regulations for the purposes of this paragraph.

Note:          However, a family violence order made under a State or Territory law that is inconsistent with a federal family violence order made under Division 2 is invalid to the extent of the inconsistency: see section 114AE.

State or Territory laws and other orders and injunctions made under this Part

             (2)  Division 3 is not intended to exclude or limit the operation of a law of a State or Territory that is:

                     (a)  capable of operating concurrently with that Division; and

                     (b)  prescribed by the regulations for the purposes of this paragraph.

Note:          However, a family violence order made under a State or Territory law that is inconsistent with an injunction made under Division 3 is invalid to the extent of the inconsistency: see section 114AF.

Subdivision CRelationship between federal family violence orders and family violence orders

114AC  State or Territory court in proceedings for family violence order may revoke or suspend federal family violence order

Application of this section

             (1)  This section applies if:

                     (a)  there are proceedings in a State or Territory court to make or vary a family violence order that is:

                              (i)  for the protection of a person (the first person); and

                             (ii)  directed against another person (the second person); and

                     (b)  the State or Territory court has jurisdiction under this Part.

Note:          For the definition of family violence order, see subsection 4(1).

Power of court to revoke or suspend federal family violence order

             (2)  The State or Territory court may, subject to subsections (3) to (5), revoke or suspend a federal family violence order made under Division 2 and that is:

                     (a)  for the protection of the first person; and

                     (b)  directed against the second person.

Note:          This subsection applies to federal family violence orders that are in relation to the parties to a marriage. For revocation or suspension of a federal family violence order in relation to a child by a State or Territory court in proceedings to make or vary a family violence order, see section 68NB.

             (3)  However, the State or Territory court may:

                     (a)  suspend the federal family violence order only in proceedings to make an interim family violence order or an interim variation of a family violence order; and

                     (b)  revoke the federal family violence order only in proceedings to make a final family violence order or a final variation of a family violence order.

             (4)  The State or Territory court may revoke or suspend the federal family violence order only if it also makes or varies a family violence order that is:

                     (a)  for the protection of the first person; and

                     (b)  directed against the second person.

Matters court must take into account

             (5)  In exercising its power under subsection (2), the State or Territory court must have regard to:

                     (a)  whether the federal family violence order is adequate or is appropriate in the circumstances; and

                     (b)  the purposes of this Division (see subsection 114AA(2)).

Reasons for decision

             (6)  The State or Territory court must give reasons for a decision to revoke or suspend a federal family violence order as soon as practicable after making the decision.

When revocation or suspension comes into force

             (7)  The revocation or suspension of the federal family violence order comes into force at the later of the following times:

                     (a)  when the State or Territory court revokes or suspends the order;

                     (b)  when the family violence order, or variation of the family violence order, mentioned in subsection (4) comes into force and is enforceable.

When suspension ceases to be in force

             (8)  If the State or Territory court suspends the federal family violence order, the suspension ceases to be in force when the interim family violence order ceases to have effect.

Registration of revocation or suspension

             (9)  The regulations may require a copy of the State or Territory court’s decision to revoke or suspend a federal family violence order to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

114AD  Application of Act etc. when exercising section 114AC power

                   A provision of this Act, or of the regulations or of the Rules of Court, that is specified in the regulations for the purposes of this section does not apply to a State or Territory court exercising the power under section 114AC (including in proceedings to make an interim family violence order or an interim variation of a family violence order).

114AE  Family violence order that is inconsistent with federal family violence order

                   A family violence order that is inconsistent with a federal family violence order made under Division 2 is invalid to the extent of the inconsistency.

Subdivision DRelationship between orders and injunctions (other than federal family violence orders) and family violence orders

114AF  Family violence order that is inconsistent with injunction for personal protection (other than federal family violence orders)

                   A family violence order that is inconsistent with an injunction granted under section 114 that is for the personal protection of a person is invalid to the extent of the inconsistency.

Note:          Certain provisions of Subdivision D of Division 11 of Part VII (Relationship between orders and injunctions under this Act (other than federal family violence orders) and family violence orders) also apply in relation to orders and injunctions made or granted under section 114 that provide for a child to spend time with a person.

Part 2Transitional, saving and application provisions

45  Definitions

In this Part:

Act means the Family Law Act 1975.

amended Act means the Act as in force immediately after commencement.

commencement means the time this item commences.

46  Transitional provision—varying or revoking old PPIs in relation to a child and replacing with new FFVOs

(1)       This item applies if an injunction in relation to a child (the old PPI) under paragraph 68B(1)(a) or (b) of the Act that was granted before commencement:

                     (a)  is in force; and

                     (b)  provides for the personal protection of a person (the first person) from family violence; and

                     (c)  is directed against another person (the second person).

(2)       Despite subsection 68AC(1) of the amended Act, a listed court (within the meaning of the amended Act) exercising jurisdiction in any proceedings under the Act may:

                     (a)  do both of the following:

                              (i)  revoke the old PPI;

                             (ii)  make, in accordance with Division 9A of Part VII of the amended Act, a federal family violence order in relation to the child that is for the personal protection of the first person and that is directed against the second person; or

                     (b)  do both of the following:

                              (i)  vary the old PPI to remove the personal protection of the first person from family violence;

                             (ii)  make, in accordance with Division 9A of Part VII of the amended Act, a federal family violence order in relation to the child that is for the personal protection of the first person and that is directed against the second person.

(3)       The listed court may revoke or vary the old PPI under subitem (2) and make the federal family violence order under Division 9A of Part VII of the amended Act on application or of its own motion.

(4)       If the federal family violence order is made by the court on application:

                     (a)  subsection 68AB(1) of the amended Act does not apply in relation to the application; but

                     (b)  subsection 68AB(2) of the amended Act does apply in relation to the application.

(5)       This item does not limit or otherwise affect any powers that a court has apart from this item to vary or revoke an order or injunction.

47  Transitional provision—varying or revoking old PPIs in relation to parties to a marriage and replacing with new FFVOs

(1)       This item applies if an injunction in relation to the parties to a marriage (the old PPI) under paragraph 114(1)(a) of the Act that was granted before commencement:

                     (a)  is in force; and

                     (b)  provides for the personal protection of a person (the first person) from family violence; and

                     (c)  is directed against another person (the second person).

(2)       Despite subsection 113AC(1) of the amended Act, a listed court (within the meaning of the amended Act) exercising jurisdiction in any proceedings under that Act may:

                     (a)  do both of the following:

                              (i)  revoke the old PPI;

                             (ii)  make, in accordance with Division 2 of Part XIV of the amended Act, a federal family violence order in relation to a party to the marriage that is for the personal protection of the first person and that is directed against the second person; or

                     (b)  do both of the following:

                              (i)  vary the old PPI to remove the personal protection of the first person from family violence;

                             (ii)  make, in accordance with Division 2 of Part XIV of the amended Act, a federal family violence order in relation to a party to the marriage that is for the personal protection of the first person and that is directed against the second person.

(3)       The listed court may revoke or vary the old PPI under subitem (2) and make the federal family violence order Division 2 of Part XIV of the amended Act on application or of its own motion.

(4)       If the federal family violence order is made by the court on application:

                     (a)  subsection 113AB(1) of the amended Act does not apply in relation to the application; but

                     (b)  subsection 113AB(2) of the amended Act does apply in relation to the application.

(5)       This item does not limit or otherwise affect any powers that a court has apart from this item to vary or revoke an order or injunction.

48  Application provision—allegations of family violence etc.

            Section 67ZBB of the amended Act applies in relation to a proceeding regardless of whether the notice mentioned in that section was filed before, on or after commencement.

49  Application provision—applying for and making FFVOs

            Sections 68AB, 68AC, 113AB and 113AC of the amended Act apply in relation to a proceeding regardless of whether the proceeding commenced before, on or after commencement.

50  Application provision—limits on making new PPIs etc.

            Subsections 68B(1A) to (1D) and 114(1A) to (1D) of the amended Act apply in relation to an injunction granted on or after commencement, regardless of whether the injunction was applied for, or the relevant proceeding commenced, before, on or after commencement.

Note:       An injunction that was granted before commencement and is in force after commencement is valid and enforceable under Division 13A of Part VII and Part XIIIA of the Act.

Schedule 2Consequential amendments

Part 1Main consequential amendments

A New Tax System (Family Assistance) Act 1999

1  Subsection 3(1) (after subparagraph (c)(i) of the definition of care arrangement)

Insert:

                            (ia)  a federal family violence order within the meaning of that section;

2  Subsection 3(1) (after paragraph (b) of the definition of family law order)

Insert:

                   (ba)  a federal family violence order within the meaning of that section; or

Social Security Act 1991

3  Subsection 23(1) (after paragraph (b) of the definition of family law order)

Insert:

                   (ba)  a federal family violence order within the meaning of that Act; or

Social Security (Administration) Act 1999

4  Section 123TC (after paragraph (b) of the definition of family law order)

Insert:

                   (ba)  a federal family violence order within the meaning of that section; or

Part 2Other consequential amendments

Division 1—Contingent amendments

Federal Circuit Court of Australia Act 1999

5  Subsection 65(3) (at the end of the note)

Add “(other than for federal family violence orders)”.

6  Subsection 78(1) (at the end of the note)

Add “(other than for federal family violence orders)”.

Division 2—Amendments consequential to the Federal Circuit and Family Court of Australia Act 2021

Family Law Act 1975

7  Subsection 4(1) (paragraph (a) of the definition of listed court)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia”.

8  Subsection 4(1) (paragraph (b) of the definition of listed court)

Repeal the paragraph.

9  Subsection 68AE(2)

Omit “The regulations or the Rules of Court, or both,”, substitute “Any or all of the regulations or the applicable Rules of Court”.

10  Subsection 68AE(3)

Before “Rules of Court”, insert “applicable”.

11  Subsection 68AK(2)

Omit “The regulations or the Rules of Court, or both,”, substitute “Any or all of the regulations or the applicable Rules of Court”.

12  Subsection 68AK(3)

Before “Rules of Court”, insert “applicable”.

13  Paragraph 68NC(c)

Before “Rules of Court”, insert “applicable”.

14  Subsection 113AE(2)

Omit “The regulations or the Rules of Court, or both,”, substitute “Any or all of the regulations or the applicable Rules of Court”.

15  Subsection 113AE(3)

Before “Rules of Court”, insert “applicable”.

16  Subsection 113AK(2)

Omit “The regulations or the Rules of Court, or both,”, substitute “Any or all of the regulations or the applicable Rules of Court”.

17  Subsection 113AK(3)

Before “Rules of Court”, insert “applicable”.

18  Section 114AD

Before “Rules of Court”, insert “applicable”.

Federal Circuit and Family Court of Australia Act 2021

19  Subsection 200(3) (at the end of the note)

Add “(other than for federal family violence orders)”.

20  Subsection 213(1) (at the end of the note)

Add “(other than for federal family violence orders)”.

Schedule 3Other amendments commencing on Royal Assent

  

Family Law Act 1975

1  Subsection 4(1) (at the end of the definition of family violence order)

Add:

Note:          Examples of different kinds of orders that are covered by the definition of family violence order include orders made or issued by courts, tribunals or police, such as any of the following:

(a)    a domestic violence order;

(b)    a family violence safety notice;

(c)    a police protection notice;

(d)    a police order.

Schedule 4Protections for Registrars

Part 1Amendments to the Federal Circuit and Family Court of Australia Act 2021

Federal Circuit and Family Court of Australia Act 2021

1  Paragraph 101(1)(a)

Repeal the paragraph, substitute:

                     (a)  in conducting a conference relating to a matter relevant to a proceeding;

2  Paragraph 257(1)(a)

Repeal the paragraph, substitute:

                     (a)  in conducting a conference relating to a matter relevant to a family law or child support proceeding;

3  Application provisions

            Sections 101 and 257 of the Federal Circuit and Family Court of Australia Act 2021, as amended by this Schedule, apply in relation to the performance of a function or the exercise of a power of the Chief Executive Officer, or a Senior Registrar or Registrar of the Court, before, on or after the commencement of this item, regardless of whether the relevant proceeding commenced before, on or after commencement of this item.

Part 2Amendments to the Family Law Act 1975

Family Law Act 1975

4  Subsection 122AAA(1)

Repeal the subsection, substitute:

             (1)  In conducting a conference relating to a matter relevant to a proceeding, a Registrar of a Family Court of a State has the same protection and immunity as a Judge of the Court has in performing the functions of a Judge.

5  Application provisions

            Section 122AAA of the Family Law Act 1975, as amended by this Schedule, applies in relation to the performance of a function or the exercise of a power of a Registrar, before, on or after the commencement of this item, regardless of whether the relevant proceeding commenced before, on or after commencement of this item.