Case conduct by decision maker and family violence

Case conduct by decision maker and family violence

In every case, the decision maker MUST:

7. In performing duties and exercising powers in relation to child-related proceedings and in making decisions about the conduct of child-related proceedings, give effect to the principle that the proceedings are to be conducted in a way that will safeguard the child concerned from being subjected to, or exposed to, abuse, neglect or family violence and safeguard the parties against family violence. [Section 69ZN(5)]
8. In giving effect to the principles for the conduct of child-related proceedings, ask each party to the proceedings:
   • whether the party considers that the child concerned has been, or is at risk of being, subject to, or exposed to, abuse, neglect or family violence,
   • whether the party considers that he or she, or another party to the proceedings, has been or is at risk of being subjected to family violence. [Section 69ZQ(1)(aa)]
9. Where an exception has been granted from attendance at family dispute resolution because of issues of family violence and abuse having been raised, consider whether to order the parties to attend at family dispute resolution nonetheless. [Section 60I(10)]
10. Consider whether the urgency of the situation dictates that a parenting order should be made, notwithstanding the parties have not attended family counselling. [Section 65F(2)]
11. Where a Notice has been filed:
    • consider what orders (interim or procedural) need to be made to obtain evidence about the allegations or to protect the child or a party,
    • consider whether to make an order directed to a state welfare authority, pursuant to section 69ZW of the FLA, to require from the authority production of a report or records in respect of notifications of child abuse,
    • consider whether to make an injunction for the personal protection of a child or any person with whom the child is involved,
    • make any such order the court considers appropriate, and
    • do so as expeditiously as possible. [Sections 60B(1), 67ZBB, 69ZN, 69ZW]
12. In determining a child’s best interests, have regard to the matters in section 60CC(2) and 60CC(3). [Section 60CC(1)]
13. In having regard to the matters in section 60CC(2), give greater weight to section 60CC(2)(b) than to section 60CC(2)(a). [Section 60CC(2A)]
14. Where a family violence order applies or has applied, draw any relevant inferences from the order, taking into account:
    • the nature of the order
    • the circumstances in which the order was made
    • any evidence admitted in the proceedings for the order
    • any findings made by the court in the order or in proceedings for the order, and
    • any other relevant matter. [Section 60CC(3)(k)]
15. In considering what parenting order to make, ensure any order, subject to the consideration of the best interests of the child, is consistent with any family violence order and does not expose any person to an unacceptable risk of family violence. [Section 60CG]
16. If making a parenting order or injunction which is inconsistent with an existing family violence order, specify in the order that this is the case and explain to the parties affected why the order was made and the interaction between the order and the family violence order. [Section 68P]

Matters that decision makers MAY consider in cases involving family violence and abuse:

17. Whether a family dispute resolution practitioner has granted a certificate to a party and the type of certificate granted. [Section 60I(8)]
18. Whether an exception should be granted to the requirement to attend family dispute resolution prior to the issue of proceedings because there are reasonable grounds to believe there has been abuse of the child or the risk of abuse, or there has been family violence by one of the parties to the proceedings or there is a risk of family violence. [Section 60I(9)(b)]
19. Where an exception is granted under section 60I(9)(b), whether there are reasonable grounds to believe there would be would be a risk of family violence or there would be a risk of abuse of a child if there were to be a delay in applying for any relevant order. [Section 60J(2)]
20. Whether to direct a party or the parties to file an affidavit or updating affidavit that addresses this issue. [Part 15.2 FLR,¹⁵ Rule 10.01 FCCR¹⁶]
21. Whether the matter should be allocated a date in the duty list, and if so, with what degree of urgency. [Rule 1.14 FLR, Rule 10.01 FCCR]
22. Whether a state or territory family violence order is in force that applies to the child or a member of the child’s family and the terms of that order. The Court may include in any order it makes safeguards for the safety of any person affected by the order. [Section 60CF, 60CG]
23. Whether one or both of the parties should be ordered to attend family counselling or family dispute resolution, or an appropriate course, perpetrator of domestic violence program, or another program or service. [Section 13C]
24. If one or more of the parties is directed to attend such a course or program, what orders are necessary to protect the safety of any person subject to such an order? [Section 13C(4)]
25. Whether any safety plan is in place for court events and whether a safety plan needs to be formulated. In particular, should consideration be given to the party being housed in a secure room during a court event or giving evidence by video link? Should arrangements be made to escort a party to and from court? What security is necessary for any given event? [Section 69ZN(5)]
26. Should a case started in the Federal Circuit Court be transferred to the Family Court, with or without a request for inclusion in the Magellan List?
27. Whether there are unresolved criminal or state welfare proceedings and, if so, whether the family law proceedings should be adjourned until finalisation of those proceedings or whether the person against whom proceedings have been instituted should be invited to apply for a certificate under section 128 of the Evidence Act 1995 (Cth).
28. Whether the address of the party making the allegations should be suppressed. [Section 69ZN(5)]
29. Whether any person not currently a party to the proceedings should be joined as a party. [Rule 6.02(1) FLR, Rule 11.05 FCCR]
30. Whether the child or children should be independently represented. [Section 68L]
31. Whether to request a child welfare officer to intervene in the proceedings. [Section 91B]
32. Whether it would be appropriate to make either an interim parenting order or a procedural order without notice to the other party and in the absence of a party. [Section 69ZN(5); Parts 5.3 and 5.4 FLR, Rule 5.01 FCCR]
33. Whether a family report should be ordered. [Section 62G]
34. Whether a person with expertise and clinical experience in family violence or abuse should be appointed to prepare a report. [Part 15.5 FLR, Rule 15.09 FCCR]
35. Whether a person should be required to make the child available for an examination for the purpose of preparing a report about the child for use by an independent children’s lawyer. [Section 68M(2)]
36. Whether subpoenas should be issued to compel the production of documents. [Part 15.3 FLR, Part 15A FCCR]
37. Whether the person alleging family violence or abuse should be permitted to give evidence by electronic means from another location. [Section 102D(1)]
38. Whether to transfer the matter to another court. [Section 33B, Rules 11.17 and 11.18 FLR, Section 39 FMA, Rule 8.02 FCCR]

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