In Saska & Radavich,13 the Full Court of the Family Court considered the proper interpretation of section 4AB(1) and found that section 4AB(2) of the Family Law Act gives context to the definition contained within section 4AB(1).14 In Olivier & Olivier,15 which concerned allegations of coercive and controlling behaviour between the parties for the purposes of determining the appropriate parenting. [...] The Law Council has also previously provided a submission to the Senate Legal and Constitutional Affairs References Committee on the practice of dowry and the incidence of dowry abuse in Australia.33 Dowry is a cultural practice in some countries in South Asia, the Middle East and Africa, and often involves payment by the bride’s family to the groom and his family, with the direction of gifts bein. [...] However, we consider that the Federal Circuit and Family Court of Australia (FCFCOA) is well-placed to respond to the prevention of forced marriage, particularly drawing on the following existing features of the Court: (a) specialised family and domestic violence training is undertaken by judicial officers of the Court; (b) the operation of the Family Law Watchlist within the Court; (c) the inform. [...] Another benefit to a national scheme under a standalone Act would be the ability to expand the existing jurisdiction of the federal courts to exercise the necessary powers to prevent the removal of victim-survivors to Australia under the Family Law Act. [...] The collective input received by the Law Council from the legal profession suggests that the better course of action with respect to grounds for seeking civil protection orders for forced marriage is to keep the elements of any legal test broad, leaving the matter ultimately to the discretion of the relevant court.
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Table of Contents
- About the Law Council of Australia 4
- Acknowledgements 5
- Introductory remarks 6
- Responses to the Consultation Paper 8
- Part 1: Building a shared understanding of forced marriage as a form of family and domestic violence to improve victim-survivors’ access to family and domestic violence services 8
- Federal jurisdiction 8
- State and Territory jurisdiction 9
- Contextual placement of forced marriage under family and domestic violence frameworks 11
- Potential opportunities for enhancements or additional guidance 12
- Part 2: Enhancing education and raising awareness 13
- Social dynamics and the framing of education around ‘forced’ marriage 14
- Dowry and dowry-related abuse 15
- Legal dynamics 15
- Resourcing and reporting 16
- Community frontline workers 17
- Law enforcement 18
- Migration agents and legal practitioners 19
- Part 3: Strengthening civil protections and remedies 20
- Proposal for feedback 20
- The Family Law Act 20
- Universal Definition of Family Violence 21
- Children under the age of 18 years old 22
- Children between 16 and 18 years of age specifically 23
- Adults over 18 years of age 24
- The Marriage Act and the role of celebrants 24
- Divorce and Property Law 24
- Option A—integration in state/territory family and domestic violence frameworks 25
- Benefits 25
- Challenges 25
- Option B—establishing new Commonwealth protection legislation implemented with State/Territory support 26
- Benefits 26
- Challenges 27
- International Example: The United Kingdom 27
- Whichever option is taken should include shared principles to establish parity of application across jurisdictions 28
- Alternative option: Strengthened state and territory intervention order regimes may be possible but come with drawbacks 29
- Grounds for Orders 30
- Scope of Orders 31
- Broad jurisdiction to make an order 31
- For those seeking to be protected from forced marriage 31
- For those wishing to leave a forced marriage 31
- Applicants 32
- Who may make an application? 32
- Respondents 33
- Victim-survivor agency 34
- A separate standalone offence? 35
- Courtroom protections and assistance through the legal process 36
- Interim orders and ex-parte hearings 36
- Service, Enforcement and Breaches 37
- Other remedies 37
- Family law options 37
- Potential Marriage Act amendment 38
- Administrative remedial avenues available through the migration system for non-Australian citizens 38
- Potential changes to the migration system to support exit from forced marriage for migrants 39
- Mitigating the potential for cancellation of a victim-survivor’s visa 40
- Provision of legal assistance where cross-examination required 41
- Family Law Practice Direction: Nullity and validity of marriage proceedings (1 September 2021) 41
- Risk factors and barriers to seeking support 42
- Financial constraints 42
- Perception of potential for visa refusal or cancellation and removal from Australia 43
- Exit Trafficking 43
- Supporting Children 46
