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    Family Violence and Family Law

    29/08/18 4:00 PM

    Executive Summary

    1. When assessing what is in the best interests of the child in parenting matters, the primary considerations are:
      1. The benefit to the child of having a meaningful relationship with both of their parents; and
      2. The need to protect the child from physical or psychological harm.
    2. Where there is a clash, the safety of the child is prioritised over the benefits of the child having a meaningful relationship with both parents.
    3. The Family Law Courts may make parenting orders that override state-based family violence orders and, similarly, a State or Territory Court making a family violence order may vary, discharge or suspend existing parenting orders.

    Introduction

    Family violence is a significant problem in Australia, with the number of family violence allegations during parenting cases steadily increasing. Section 4AB of the Family Law Act 1975 (Cth) (hereafter ‘the Family Law Act’) defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes [them] to be fearful’.

    Frank Law does not practise in the area of Criminal Law. However, we have a dedicated Family Law team and as such are abreast of a range of issues regarding Family Law, including the connection between Family Law and Criminal Law.

    Family Violence Orders and Parenting Orders

    Due to the overlap between family violence cases and parenting cases, there is frequently an intersection of family violence orders and parenting orders.

    Family violence orders are made by a State or Territory and may prevent one parent from coming within a set distance of another parent or stalking or harassing them.

    Children can be included on family violence orders made for a parent; however, child protection orders may be made by the state’s Children’s Court if it is believed that a child is in distinct need of protection.

    Parenting orders also relate to children. They are made by the Family Court or Federal Circuit Court about parenting arrangements for a child.

    Inconsistencies

    Under section 60CG of the Family Law Act, a federal family court (being either the Family Court or Federal Circuit Court) must ensure, as much as possible, that parenting orders are consistent with any family violence orders, and that there is no unacceptable risk of family violence or abuse.

    Notwithstanding this, a federal family court can deliberately make a parenting order that is different to an existing family violence order. This can be done if the court forms a different view on the potential risk of violence based on the evidence or considers that it is in the child’s best interest to spend time and communicate with both parents despite a family violence order.

    The federal parenting order will override the state or territory family violence order to the extent that the parenting order requires or permits a person to have contact with the child: s68Q of the Family Law Act. A court making such an inconsistent parenting order must specify the inconsistency, provide reasons for making the order, detail how the contact between the child and the person will take place, and provide a copy of the order to all affected parties, including:

    1. The person against whom the family violence order is directed.
    2. The person protected by the family violence order.
    3. The parties in the proceedings (if not 1 or 2 above).
    4. The Registrar or other appropriate officer of the court that made the family violence order.
    5. The Commissioner of the police force of the State or Territory in which the person protected by the family violence order resides.
    6. A child welfare officer in the relevant State or Territory: s68P.

    Similarly, a state or territory court may also vary, suspend or discharge existing orders made under the Family Law Act, to the extent that the order provides for the child to spend time with a person: s68R. To apply this power, the court must be making or varying a family violence order and be satisfied that varying or suspending the parenting order is appropriate because a person has been exposed, or is likely to be exposed, to family violence because of the parenting order.

    Take Away

    Family violence orders do increasingly include an exception for any orders made by the federal family courts. Nevertheless, and in particular circumstances, there are good reasons for enabling both federal family courts, and state or territory courts to make orders that are inconsistent. These circumstances include when the court overriding the order has material before it that was not before the court that made the original order or injunction. It is therefore important to properly consider whether new material has come to light when applying for an inconsistent order
    Karla Elias

    Written by Karla Elias