16.6 Part VII of the Family Law Act relates to children, and includes provisions relating to parental responsibility, parenting plans, parenting orders and child maintenance orders. Jurisdiction under pt VII is vested in the courts of summary jurisdiction in each state and territory.
16.7 Proceedings for a parenting order can be instituted in a state or territory court of summary jurisdiction. However, s 69N of the Family Law Act places some limitations on the circumstances in which state and territory courts can hear and determine parenting proceedings. If a party seeks orders different from those sought in the application, the state or territory court must seek the consent of all parties to the determination of the application by the court. If the parties do not consent, the state or territory court must transfer the proceedings to a federal family court.
16.8 The effect of s 69N is that a state or territory court may only make parenting orders where both parties agree on the content of the order, or where both parties agree that the court hear and determine the matter.
16.9 The state or territory court may also make any orders it considers necessary pending the federal family court dealing with the matter. For example, a state or territory court may make interim orders, such as an ex parte order for the recovery of a child, or order that parties attend a family conference or counselling.
16.10 In addition to this jurisdiction, the Family Law Act allows state and territory courts, when making or varying a protection order under state or territory family violence legislation, to vary a parenting order. Section 68R of the Family Law Act permits a state or territory court with jurisdiction under pt VII to ‘revive, vary, discharge or suspend’:
a parenting or recovery order;
an injunction granted under ss 68B or 114 of the Family Law Act ;
an undertaking given to a court exercising jurisdiction under the Family Law Act;
a registered parenting plan; or
a recognisance entered into under an order under the Family Law Act.
16.11 This chapter focuses on the use of s 68R to amend a parenting order, on the basis that it is the most common point of interaction. However, the principles developed in this chapter could also be applied to other Family Law Act orders.
16.12 A state or territory court may only revive, vary, discharge or suspend a parenting order to the extent that it relates to a person spending time with a child. In addition, the court may only exercise its power under s 68R when it has material that was not before the court that made the original parenting order.
16.13 The effect of a decision to amend a parenting order differs depending on whether it is amended during proceedings for an interim protection order or for a final protection order. Magistrates courts are not permitted to discharge a parenting order during proceedings for an interim protection order. In addition, if a magistrates court revives, varies or suspends a family law order during proceedings for an interim protection order, the variation only has effect for 21 days.
16.14 The jurisdiction of courts of summary jurisdiction in Western Australia to amend a parenting order differs depending on whether the order was made under the Family Law Act or the Family Court Act 1997 (WA). Arrangements in Western Australia have led to some uncertainty about the jurisdiction of Western Australian courts of summary jurisdiction under the Family Law Act .
16.15 The power to revive, vary, discharge or suspend a parenting order under s 68R differs from the jurisdiction conferred by s 69N of the Family Law Act in that s 68R may be exercised by a magistrate on his or her own initiative. Section 68R does not require that the parties prepare and lodge a formal application for parenting orders with the court or have attended family counselling.
Family Law Act 1975 (Cth) s 69J. The Local Court of New South Wales and the Magistrates Courts of Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory are all courts of summary jurisdiction. For ease of reference, these courts are referred to as ‘magistrates courts’ in this chapter.
 Ibid s 69N.
 This restriction does not apply to proceedings for child maintenance orders, or to proceedings commenced in the Magistrates Court of Western Australia: Ibid s 69N(1)(a).
 Ibid s 69N(2).
 While not directly relevant to this Inquiry, the Family Law Act permits state and territory courts of summary jurisdiction to hear proceedings for ‘matrimonial causes’ other than proceedings for divorce or decree of nullity or a declaration as to the validity of a marriage, divorce or annulment: s 39(6)(a). State and territory courts can also hear defended proceedings in relation to property with a total value of up to $20,000 without restriction, and with a higher value with the consent of all parties: s 46. If the parties do not consent to the state or territory court hearing the matter, the proceedings must be transferred to a federal family court: s 46(1)(a).
Family Law Act 1975 (Cth) s 68R(1).
 Ibid s 68R(3).
 Ibid s 68R(4).
 Ibid s 68T(1).
 See, D Monaghan, ‘Restraining Orders v Existing Parenting Orders’ (Paper presented at Western Australian Magistrates Conference, Perth, November 2008).
Family Law Act 1975 (Cth) s 68R(2).
 Ibid s 68S(1)(b).