Domestic Violence Developments


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Domestic Violence Developments

Domestic and Family Violence is increasingly being placed under the spotlight by the media. The issue has been further highlighted by the Federal Government with the recipient of Australian of the Year for 2015, Rose Batty.

Legislative changes were enacted pursuant to the Domestic and Family Violence Protection Act 2012. As at 15 February 2015 new Rules relating to this legislation were enacted. These new Rules will be known as the Domestic and Family Violence Protection Rules 2014 and will work alongside the Act.

The new Rules cover practicalities such as:

  • Filing of documents
  • Service of documents
  • Proof of service of documents
  • Directions in proceedings
  • Other technical issues including the issuing of subpoena and the use of subpoenaed documents. This is relevant to you in your role as a health care provider.

Domestic and Family Violence Matters – Subpoena Compliance

Rule 42 sets out the requirements for compliance when issued with a subpoena for production of documents i.e. records.

The Rule provides that you must:

  1. Give the documents to the clerk of the Domestic and Family Violence Protection Court (Magistrates Court) in a sealed envelope clearly marked “Court Exhibits”, or something similar, at least one clear day before the time stated for production in the subpoena.
  2. You must attach a copy of the subpoena to the front of the envelope.
  3. You must indicate to the Court whether you require the document returned to you or destroyed.
  4. You will be issued with a receipt by the Clerk of the Court.

The Rules also provide at Rule 44 that you may be paid your costs of complying with the subpoena if you are not a party to the proceedings.

You will be provided with conduct money but please note that the amount is “not standard”. You may have a strong argument to be paid at a greater rate depending upon the time taken to comply with the subpoena.

The Court may order the party on whose behalf the subpoena was issued to pay all or part of the losses and expenses, including your legal costs, incurred by you in responding properly to the subpoena.

What do I need to consider in providing a report in a Family Law matter?

Quite often we will need to call upon the services of therapy providers to provide a report in respect of parents or children in a parenting matter. This is particularly so where parents are in a high state of conflict and are unable to agree on the best interests of the children.

Common enquiries that we will make of therapists are set out below:

  1. What is the stage of development and the maturity of the child?
  2. How is the current dispute between the parents impacting on the child?
  3. Is the child at risk of neglect and/or physical, psychological or other harm or abuse, including exposure to family violence? If so, what is the nature of the risk?
  4. What is the relationship of the child with each party and other significant people?
  5. What are the child’s views about where they live and the time they spend with each parent? Are there any factors (including parental influence or influence from other people) which are considered relevant to the weight to be given to the child’s views?
  6. What is the capacity of each party to:
    1. recognise and provide for the child’s physical, social, psychological and emotional needs;
    2. encourage the child’s relationship with the other party and any other significant people and to work with them for the benefit of the child (taking into consideration whether, in this case, it is appropriate that they do so); and
    3. act protectively in the interests of the child if the other party or any other significant person poses a risk to the child?
  7. What is the likely impact on the child of a significant change in the child’s care arrangements, including any separation from a parent or any other person with whom the child has been living?
  8. If you have concerns about the child, the parents or any other significant people, could those concerns be addressed by therapy, counselling or other intervention? If so, are you aware of the cost and availability of appropriate services in the area?
  9. Do you have any recommendations regarding with whom the child should live, spend time (including holidays) and communicate?
  10. Are there any other matters you consider relevant to the child’s best interests?

These terms of reference were actually issued by the Family Court of Western Australia in December 2014 as a guide for expert reports in parenting proceedings.

They are just as relevant in respect of treating therapist reports.