16.1 This chapter examines the way in which state and territory courts exercise jurisdiction under family violence legislation and the Family Law Act 1975 (Cth). In doing so, the chapter focuses on three issues arising from the interaction of family violence legislation and the Family Law Act identified in Chapter 9:
inconsistencies between family law orders and protection orders;
a culture in state and territory magistrates courts of deferring to family courts rather than exercising jurisdiction under the Family Law Act; and
difficulties in negotiating the pathways between the state and territory family violence regimes and federal family law, leading to duplication and inconsistencies.
16.2 In Chapter 3, the Commissions set out a framework for the reform of the jurisdiction of courts that deal with issues of family violence. This framework is informed by the principle that victims of family violence should, as far as possible, be able to have as many of the legal issues relating to the violence resolved by the same court. As discussed in Chapter 3, the Commissions consider that an effective way to do this is to enhance the ability of the courts that currently deal with family violence matters to address matters outside their core jurisdiction.
16.3 Often, the first point of contact that victims of family violence have with the legal system is at a state or territory magistrates court, when the victim, or a police officer acting on the victim’s behalf, seeks a protection order. This chapter focuses on how to enhance the way that state and territory courts exercise jurisdiction under family violence legislation so that they may also deal with related family law matters more effectively.
16.4 This chapter begins by setting out the jurisdiction under the Family Law Act that is currently conferred on state and territory courts. The chapter then examines the provisions of the Family Law Act that allow a state or territory court, when making a protection order, also to revive, vary, suspend or discharge a parenting order. The chapter goes on to discuss the matters courts should take into account when making a protection order in circumstances where Family Law Act orders exist or are pending. Finally, the chapter examines the provisions for the recovery of personal property in state and territory family violence legislation, in the context of protection order proceedings.
16.5 The Commissions acknowledge that amending legislation to expand the jurisdiction of courts is not, in itself, sufficient to address the interaction issues identified above. The chapter therefore includes a discussion of how specialised practice and training, education and resources for people involved in protection order proceedings are necessary to improve the way that courts consider and address issues of family violence.