We propose changing the title of the bill to Family Proceedings (Dissolution of Marriage or Civil Union for Family Violence) Amendment Bill. This would more clearly describe what the bill seeks to do.

The bill as introduced would come into force 6 months after it receives Royal assent. We recommend that the bill be amended so that it would come into force 12 months after Royal assent. We consider that this longer period is more appropriate because it would allow time for the Family Court, the legal profession, and community-based advocacy groups to prepare for the change, and for secondary legislation and the courts management system to be updated.

The bill as introduced is unclear about whether existing protection orders granted before the bill came into force would be admissible evidence for the new ground of family violence. We recommend that the bill be amended to insert new Schedule 1AA, so that existing protection orders which are in force when the Act commences would be admissible evidence.

Some submitters suggested expanding the range of admissible evidence to dissolve a marriage or civil union on the new ground of family violence beyond a protection order. We consider that this could create complexities for the operation of the bill.

The admissible evidence in the bill as introduced was a temporary or final protection order. A protection order is made by the court if it is satisfied that the respondent has inflicted or is inflicting family violence against the applicant. This establishes an objective legal ground of family violence on which a dissolution could then be granted.

If what was deemed admissible was broadened to include subjective evidence, the evidence would still need to be tested in court, and the respondent provided with the opportunity to defend the claim. It would be contrary to natural justice principles to have untested evidence used as the basis to establish a legal ground.

We are also concerned that broadening admissible evidence could create inequities. Those who hold a protection order could have their dissolution granted by a Registrar in undefended proceedings. However, applicants relying on evidence of a family violence offence, for example, may need to have their dissolution considered by a Judge (as a judicial determination may be necessary to establish if a family violence offence had occurred). This process is likely to take longer.

Therefore, we recommend that protection orders are retained as the only admissible evidence in the bill. This would better reflect the policy intent of the bill, while also balancing natural justice rights.

The admissible evidence in the bill as introduced was a temporary or final protection order. Temporary protection orders may be made without notice to the respondent if the court is satisfied that there is a risk of harm or undue hardship to the applicant. A temporary protection order can be defended within three months after the date on which the order is made. A temporary protection order automatically becomes a final protection order after three months unless the respondent defends the order or the order is discharged by a Court.

We are concerned that allowing temporary protection orders as admissible evidence could result in an increase in defended applications. The increase would likely be from individuals wanting to defend a protection order due to the potential for it to be used as a ground to dissolve a marriage or civil union, or to defend an order dissolving their marriage or civil union made on the basis that they have committed family violence. We consider that an increase in contested applications would not be in the best interests of victims or children.

Further, a temporary protection order is usually applied for without notice to the respondent. If temporary protection orders could be used to establish the new ground, a party may apply for a dissolution of their marriage or civil union on that basis before the respondent had an opportunity to challenge the order. This would be contrary to natural justice.

We recommend amending the bill to insert new section 39A(9) so that only final protection orders can be relied on to establish the new ground rather than temporary protection orders. We acknowledge that this would mean that the bill captures a smaller proportion of victims of family violence. However, we consider that this approach carries fewer risks. These risks include a potential increase in adversarial and protracted court hearings and encroachment on natural justice principles.

The bill as introduced would allow a respondent to a protection order to apply for a marriage or civil union to be dissolved on the ground of family violence. This is despite the respondent not being a protected person under the protection order. We consider that this is contrary to the intent of the bill. We therefore recommend amending section 39A(1) of the bill so that only a person who is a protected person under a protection order would be able to apply for a dissolution of a marriage or civil union on the ground of family violence.

We also recommend inserting new section 39A(2) so that both parties to a marriage or civil union would only be able to apply for a dissolution on the ground of family violence when each party has a protection order in place against the other party.

It is not clear in the bill as introduced whether an application for an order dissolving a marriage or civil union can be made before the appeal period in relation to a protection order has expired or when an appeal is still to be determined. If a dissolution order were made based on a protection order that may be appealed or is pending appeal, there is a risk that the dissolution order could also be appealed.

We recommend amending the bill to provide that a person who is a protected person under a protection order would have to wait until the appeal period for the protection order has lapsed, or an appeal has been determined, before they may seek a dissolution on the ground of family violence.