Related family law proceedings

NSW

  • Judicial Commission of NSW, Local Court Bench Book (2017).
    Section [25-000] discusses the procedures for dealing with applications for Apprehended Violence Orders, hearing applications, the making and variation of orders, consent orders, duration and conditions, and the National Domestic Violence Order recognition scheme.

QLD

  • Magistrates Court, Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2018).
    This bench book discusses in detail the legislation, case law and procedural issues relating to application proceedings for protection orders under the Domestic and Family Violence Act 2012 (Qld),including the jurisdiction of Magistrates and Judicial Registrars (Chapter 2); police, private and cross applications (Chapter 3); service of applications (Chapter 4); hearing of applications (Chapter 5); making a temporary protection order (Chapter 6); making a protection order (Chapter 7); consent orders (Chapter 8); naming of parties and standard/other conditions in orders (Chapter 9); duration of orders (Chapter 10); explanation of orders (Chapter 11); service of orders (Chapter 12); variation of orders (Chapter 13); and breach of an order (Chapter 20.1).

Vic

  • Judicial College of Victoria, Family Violence Bench Book (2014).
    2.6 discusses the interaction between family violence orders and parenting orders, recovery orders and other orders under the Family Law Act. 5.14 discusses the relationship between family violence and family law.
  • King, Michael S, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration and the Legal Services Board of Victoria, 2009).

    This bench book contains overviews of therapeutic jurisprudence and ‘solution-focused’ judging – see chapter 1. Also, an overview of the function of family violence courts is provided from pp 19-21. Chapter 4 deals with family violence (see from p 95). Relevantly, chapter 4 contains an overview of the difference between protection orders (under state law) and injunctions under the Family Law Act 1975 (Cth) (pp 113-114). Disadvantages of these injunctions, (including that they are difficult to enforce and police are generally less aware of their nature and effect), are noted. A breach of a protection order under state law is more likely to result in immediate arrest of the perpetrator. This ‘relieves the victim of expense and the responsibility of proving a breach to a court.’

    Inconsistencies between family law orders and state-based protection orders are discussed (pp 113-114). It is noted that some magistrates are reluctant to deal with intervention order applications where family law proceedings are on foot and also reluctant to use their powers to vary family law orders where an intervention order is made.

    Various problems with protection orders are discussed – ‘In some cases protection orders will not protect the victim from further abuse – such as where the perpetrator is familiar with the legal system, has no respect for the law, or is emotionally disturbed and/or volatile. Hiding away from the perpetrator or moving from the area may be the only protection realistically available for the victim. Additionally, some victims are reluctant to apply for an intervention order. The police or court system may have treated them insensitively when they previously sought help; past intervention orders may have been ineffective; they may not feel comfortable in telling their traumatic story to a court; or they may fear that the order may be a trigger for an escalation of the violence’ (p 114).

WA

  • Department of Justice (WA), Equal Justice Bench Book (2nd edition September 2017).

    Note: Chapter 13 Family and Domestic Violence is currently under review. Until revision is completed, the first edition chapter 13 applies. The following text is based on the first edition chapter.

    Section 13.3.3 entitled ‘Restraining Orders’, contains practical points for judicial officers to consider in restraining order applications (particularly in relation to children). For example,

    • ‘When considering whether to make a violence restraining order, you should have regard to the need to ensure that children are not exposed to acts of family and domestic violence.
    • You should not assume that children who are not direct targets of violence want or will benefit from contact with the perpetrator of violence…
    • Be aware that restraining orders may be used by perpetrators of domestic violence as a way to control and punish the primary victim…
    • If an applicant has not contacted an external support agency prior to the application for a restraining order you may wish to let them know that such support is available. A list of agencies and organisations which help people who are at risk of family and domestic violence can be found at the end of this chapter.’