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The Dispute Resolution
Training and Membership Specialists

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Family Law Amendment (Family Violence Measures) Regulations 2019

The main purpose

One of the major problems for people experiencing family violence who are seeking the protection of the courts is the gaps between the family court, the family violence court and possibly also the children’s court. There have been inconsistencies about the way they respond to family violence and accusations of family violence.

In part this is structural as the family violence courts are risk based which means that they make an interim order with very little evidence in order to keep people safe. If there isn’t an acceptance of the order or sufficient evidence of family violence isn’t provided by the applicant the interim order may not become a final order. That said the definition of family violence is very wide so it is often not difficult to prove that there has been or there is the risk of family violence. The definition of family violence in the state courts varies.

The family court is a bit more evidence based and often a change to the current situation will not be made unless there is some evidence to support the change. That evidence may be in the form of the affidavits (sworn statements) from the applicant or respondent or it may be the result of the 11F report from the family consultant that the parties have been ordered to meet with.

 Definition of Family Violence

The Family Violence Protection Act 2008 in Victoria defines the meaning of family violence for the purpose of the act to be
(a) behaviour by a person towards a family member of that person if that behaviour (i)     is physically or sexually abusive; or (ii)     is emotionally or psychologically abusive; or (iii)     is economically abusive; or (iv)     is threatening; or  (v)     is coercive; or (vi)     in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
Family violence includes the following behaviour:

(a) assaulting or causing personal injury to a family member or threatening to do so

(b) sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;

(c) intentionally damaging a family member’s property, or threatening to do so;

(d) unlawfully depriving a family member of the family member’s liberty, or threatening to do so;

(e) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

The main change due to the new regulations

The family law regulations are a set of rules to guild the practices and procedures for the Family Court of Australia. This court is the court for all family law matters for all states except Western Australia.

The main changes to the Family Law Regulations 1984 is in Paragraph 12CC(1)(a) now requires that interim as well as final family violence orders must be sent by the family violence court to the court that made the order, injunction or arrangement that the family violence court has revived, varied, discharged or suspended.

In other words if a family violence order, even if it is an interim order, is made that affects an order about the family in the family court, the children’s court or any other court they have to let that court know by sending them a copy of the order. 

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Why do mediators need an understanding of legislation?

One of the roles of family dispute resolution practitioners is to provide factual information about the family law system. That means you need to have a good understanding of what the family law system is, how the system works and be able to correct any inaccurate information that is shared by clients. You don’t have to be a lawyer, you can’t give independent legal advice even if you are a lawyer but you should be correcting and re-framing old wives tales.

In our training we encourage students to visit their local family violence and family law courts if they are not already familiar with them to make sure that they don’t fall into any of the “there be dragons” type thinking that results from ignorance.

The same applies for whatever area of mediation you are working in. If you are doing workplace mediation you should have an understanding of workplace legislation so that you do not support illegal or abusive behaviours that are normalised in a workplace.