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Family Courts (FCA & FMCA) Family Violence Best Practice Principles guideline updated

The revised Family Courts (FCA & FMCA) Family Violence Best Practice Principles guideline has just been released

The Family Court's Best Practice Principles were first developed as part of the Family Court's Family Violence Strategy in March 2009. Those principles have since been revised and were launched by the Commonwealth Attorney-General on 19 July 2011.

Family Violence Best Practice Principles

The Family Court's Best Practice Principles were first developed as part of the Family Court's Family Violence Strategy in March 2009. Those principles have since been revised and were launched by the Commonwealth Attorney-General on 19 July 2011.

The Family Violence Best Practice Principles were originally developed to provide judicial officers hearing parenting disputes in the Family Court, with practical guidance in dealing with matters where family violence was alleged. They subsequently became helpful not only to judicial officers but also for members of the legal profession and litigants representing themselves. A significant change in the revised set of principles has been the inclusion of the processes used in the Federal Magistrates Court of Australia.

The revised Best Practice Principles have been developed by the Family Court of Australia and the Federal Magistrates Court of Australia. They contribute to furthering the Courts' commitment to protecting children and any person who has a parenting order, from harm resulting from family violence and abuse.

The Best Practice Principles recognise:
  • - the harmful effects of family violence and abuse on victims
  • - the place accorded to the issue of family violence in the Family Law Act, and
  • - the principles guiding the Magellan case management system for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children.
The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the Family Law Act.

They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.

FOREWORD  REVISED FAMILY VIOLENCE BEST PRACTICE PRINCIPLES
It is with great pleasure that we release this revised version of the Family Violence Best Practice Principles.

Protecting families and particularly children who are engaged with the family law system from the effects of family violence is a priority for the Family Court and the Federal Magistrates Court. The revised Family Violence Best Practice Principles assists in this critically important task by acting as a checklist of matters that judges, federal magistrates, court staff, legal professionals and litigants may wish to have regard to at each stage of the litigation process.

The Best Practice Principles were first developed by the Family Courts Family Violence Committee as a checklist of matters that judicial officers hearing and determining parenting disputes in the Family Court of Australia may wish to consider. They were the last initiative to be implemented under the Family Violence Strategy 20042005.

The Best Practice Principles were released by the Attorney-General on 6 March 2009 and, we understand, were generally considered to be a useful compendium of relevant statutory provisions and rules to assist decision makers at each stage of the proceedings. However, it became apparent that their use extended beyond judicial officers, with members of the legal profession and litigants in person also finding them helpful. Some federal magistrates were interested in using the Best Practice Principles but because the original document had been developed by the Family Court, it was not necessarily reflective of processes in the Federal Magistrates Court.

We decided to reconvene the Family Violence Committee as a joint committee, comprising representatives from both the Family Court and the Federal Magistrates Court. The joint Family Violence Committee was requested by us to review and update the Family Violence
Best Practice Principles to ensure they were of optimal assistance to their intended audience. Our thanks go to the Family Violence Committee and particularly to the Committee Chair, the Hon. Justice Judy Ryan, for undertaking this task. We also wish to thank the many individuals and organisations who commented on drafts of the revised Best Practice Principles.

We appreciate that the Government has decided to proceed with amendments to the Family Law Act in the area of family violence. The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is before Parliament at time of writing. We considered delaying the release of the updated Best Practice Principles until the fate of those amendments was known. However, due to some uncertainty as to timing, we decided to press ahead with the release of this version of the Family Violence Best Practice Principles, in the understanding that further revision will be required if the proposed family violence amendments pass into law.

We hope you find the revised Family Violence Best Practice Principles a practical and useful guide to responding to family violence when it arises in childrens cases.

Diana Bryant,
Chief Justice
Family Court of Australia


John Pascoe AO CVO
Chief Federal Magistrate,
Federal Magistrates Court of Australia
BEST PRACTICE PRINCIPLES FOR USE IN PARENTING DISPUTES WHEN FAMILY VIOLENCE OR ABUSE IS ALLEGED

Introduction
These Best Practice Principles are designed to provide practical guidance to courts, legal practitioners, service providers and litigants in cases where issues of family violence or child abuse arise.

After significant changes were made to the Family Law Act 1975 (Cth)1 in 2006, the Family Court  introduced a suite of Best Practice Principles2 to assist decision makers. It was later recognised that the Best Practice Principles could be a valuable tool for all individuals and agencies involved in  these cases. The notion that the Best Practice Principles would be valuable to a wider audience was informed by a series of reports3 in which recommendations were made about how courts exercising jurisdiction under the FLA and others should address issues of family violence and abuse. Thus, the Chief Justice of the Family Court and the Chief Federal Magistrate requested the courts Family Violence Committee to revise and update the Best Practice Principles.
 
Statement of principle
These Best Practice Principles have been developed by the Family Court of Australia and the Federal Magistrates Court of Australia. They contribute to furthering the courts commitment to protecting children and any person who has a parenting order from harm resulting from family violence and abuse. They also seek to reinforce the guiding principles contained in the Family Violence Strategy 20042005.

The Best Practice Principles recognise:

 the harmful effects of family violence and abuse on victims
 the place accorded to the issue of family violence in the FLA, and
 the principles guiding the Magellan case management system for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children.

The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA. They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.

FAMILY VIOLENCE BEST PRACTICE PRINCIPLES
Ensuring the safety of a child is central to all determinations of what is in a childs best interests.

The courts aim to protect children and parents from all forms of harm resulting from family violence and abuse.
The Best Practice Principles are a voluntary source of assistance to judicial officers and legal practitioners and are not a fetter (synonyms =restraint, handcuff or shackle) to a courts discretion (Cameron & Walker [2010] FamCAFC 168).

These Best Practice Principles are not a substitute for evidence in individual cases.

All persons attending the courts exercising family law jurisdiction are entitled to be safe and the courts will take all appropriate steps to ensure the safety of their users. This includes creation of an individually tailored safety plan.

A safety plan is a living document that includes a variety of options available to a person to ensure their safety at court. Options include attendance by electronic medium, attendance with support persons, staggered attendances, use of security entrances and, where necessary, security personnel. All court staff are able to prepare a safety plan. Safety planning is one of the strategies that may be implemented to ensure that a person who fears for their safety remains safe. A safety plan for attendances at court events is but one component of safety planning that needs to be incorporated into the individuals overall plan for their safety.

* For further information or to get paper copies of this document sent to you, call 1300 352 000, or visit a family law registry near you.

Publications:

Attachment
Family Violence Best Practice Principles guideline (5.9MB download)


Attachment
Family Violence Best Practice Principles guideline (Smaller file - Word format 151kb)

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