Criminal Law in Family Law Proceedings

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Criminal Law in Family Law Proceedings
10 Oct

Criminal Law in Family Law Proceedings

The Impact of Criminal Law in the Family Law Jurisdiction

Pursuant to section 61DA of the Family Law Act 1975 (Cth), the presumption of equal shared parental responsibility exists within family law proceedings. However, this presumption does not apply in circumstances where parents have engaged in family violence due to the effect of section 61DA(2)(B).

Effect of Family Violence Orders on Parenting Orders

The Family Court may enforce a Family Violence Order against a parent of the relationship, despite the imposition of a subsequent parenting order relating to that person. Section 68R(1) allows the court to make or vary family violence orders, which may involve reviving, varying, discharging or suspending a parenting order. However, the Court’s power also works in the opposite manner. For example, the Court may override a protection order made under the Domestic and Family Violence Protection Act with a parenting order. This power is outlined in section 68R of the Family Law Act. The existence of these powers allows the Court to remove any inconsistencies between the two orders and simplify proceedings.

Family Violence and Court Procedure

Typically, parties must attend mediation and gain a certificate of dispute resolution before proceeding the matter to court litigation. However, section 60J of the Family Law Act provides an exception to attending mediation on the grounds of abuse (or a risk of child abuse) if the orders were to be delayed, or, family violence (or risk of family violence) by one of the parties. Furthermore, where a Notice of Risk has been filed alleging child abuse or risk of abuse, section 67ZBB of the Family Law Act provides the Court must take prompt action to not delay an order.

Criminal Actions and False Allegations

If there are serious ongoing criminal investigations (such as murder, child abuse, rape etc.) relevant to the parties to a current family law proceeding, the Court may refuse to make final orders. These examples are outlined in cases such as Moresco & Ors v Budimir [2015] VSC 51. As serious criminal investigations are likely to significantly impact a party to a family law proceeding, it would not be appropriate for the Court to make final orders when the future needs of the accused persons are currently ongoing.

Where parties to a family law proceeding make false allegations against the other, the court has wide powers in determining the appropriate course of action. In the case of Kapicic & Bakal [2014] FAMCA 236, Justice Berman found the false allegations of the Mother than the child of the relationship had been sexually abused by the Father were made with “malicious intent”, subsequently ordering the children live with the Father and granting him sole parental responsibility.

Apprehended Violence Order (AVO)

Although an AVO is not a criminal conviction, it may seriously impact on career aspirations and opportunities. Therefore, this order should not be taken haphazardly. If you are or intend to seek professional employment in a position which involves working with children, an AVO will appear on a “working with children” check. If you have criminal charges brought against you for a breach of the AVO, this may result in difficulties in obtaining parenting orders in family law proceedings. It is important if faced with this situation to seek legal advise on your options in disputing the AVO and ensuring no breaches occur.

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