16. Family Law Interactions: Jurisdiction and Practice of State and Territory Courts

Recommendation 16–1 Family violence legislation in each state and territory should require judicial officers making or varying a protection order to consider, under s 68R of the Family Law Act 1975 (Cth), reviving, varying, discharging or suspending an inconsistent parenting order.

Recommendation 16–2 Application forms for protection orders under state and territory family violence legislation should include an option for an applicant to request the court to revive, vary, discharge or suspend a parenting order.

Recommendation 16–3 The Family Law Act 1975 (Cth) should be amended to allow state and territory courts, when making or varying a protection order, to make a parenting order until further order.

Recommendation 16–4 Section 60CG of the Family Law Act 1975 (Cth)— which requires a court to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and permits the court to include in the order any safeguards that it considers necessary for the safety of a person affected by the order— should be amended to provide that the court should give primary consideration to the protection of that person over the other factors that are relevant to determining the best interests of the child.

Recommendation 16–5 Section 68T of the Family Law Act 1975 (Cth) should be amended to provide that, where a state or territory court, in proceedings to make an interim protection order under state or territory family violence legislation, revives, varies or suspends a parenting order under s 68R, or makes a parenting order in the circumstances set out in Rec 16–3, that parenting order has effect until:

(a) the date specified in the order;

(b) the interim protection order expires; or

(c) further order of the court.

Recommendation 16–6 State and territory family violence legislation should provide that courts not significantly diminish the standard of protection afforded by a protection order for the purpose of facilitating consistency with a parenting order.

Recommendation 16–7 Application forms for protection orders under state and territory family violence legislation should include an option for applicants to indicate their preference that there should be no exception in the protection order for contact required or authorised by a parenting order made under the Family Law Act 1975 (Cth).

Recommendation 16–8 Australian courts and judicial education bodies should provide education and training, and prepare material in bench books, to assist judicial officers in state and territory courts better to understand and exercise their jurisdiction under the Family Law Act 1975 (Cth). This material should include guidance on resolving inconsistencies between orders under the Family Law Act and protection orders to ensure the safety of victims of family violence.

Recommendation 16–9 Australian, state and territory governments should collaborate to provide training to practitioners involved in protection order proceedings on state and territory courts’ jurisdiction under the Family Law Act 1975 (Cth).

Recommendation 16–10 Application forms for protection orders under state and territory family violence legislation should clearly seek information about property orders under the Family Law Act 1975 (Cth) or any pending application for such orders.

Recommendation 16–11 State and territory family violence legislation should require courts, when considering whether to make personal property directions in protection order proceedings, to inquire about and consider any property orders under the Family Law Act 1975 (Cth), or pending application for such orders.

Recommendation 16–12 State and territory family violence legislation should provide that personal property directions made in protection order proceedings are subject to orders made by a federal family court or other court responsible for determining property disputes.

Recommendation 16–13 State and territory family violence legislation should provide that personal property directions do not affect ownership rights.