A gap in protection?

Protection orders subject to parenting orders

The Family Law Council has noted that, as a matter of practice, state and territory judicial officers often avoid inconsistency between state and territory protection orders and parenting orders by making contact ordered under the Family Law Act an exception to the prohibitions contained in the protection order. This may expose women and their children to violence at the time of access or at access handover.

The Kearney McKenzie Report noted that the effect of this is that local courts are handing over the responsibility for ensuring contact does not expose women and children to violence to the Family Court. They also noted, however, that as any subsequent Family Court contact order cannot be inconsistent with a family violence order that includes the exception, the protection offered by Division 11 does not apply, leaving a gap in protection.

In Tasmania, applications for protection orders provide for applicants to ask the court to impose a condition prohibiting respondents from approaching them. Applicants can choose whether to include an exception ‘for the purpose of contact with the children named above as agreed or as ordered by a court of competent jurisdiction’. In Victoria, applicants can tick a box requesting that a Family Law Act order be revived, varied or suspended.

Proposal 8–12 Application forms for family violence protection orders 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.

Question 8–13 Should contact required or authorised by a parenting order be removed from the standard exceptions to prohibited conduct under state and territory protection orders?

No existing protection order

Concerns have been raised about the potential for the existence of parenting orders under the Family Law Act to limit an applicant’s capacity to commence proceedings for a family violence protection order in a state or territory court. For example, in their study on family violence and child contact arrangements, Kaye and colleagues reported the experience of a study participant who applied for a protection order for herself and her children:

The Local Court decided not to deal with the matter because [the victim’s] ex-partner had started proceedings in the Family Court. The magistrate commented that the ‘Family Court was looking into it now’ and that her interim Family Court orders for supervised contact ‘covered the situation’. … The magistrate went on to comment that, in any event, he ‘couldn’t overrule the Family Court’.[7]

There is no legislative basis for a state or territory court to decline to make a protection order simply because proceedings have commenced for parenting orders in a family court. In the Commissions’ view, the most effective initiative is likely to involve judicial education and training.

No existing parenting order

Imposition of parenting orders by state and territory magistrates

Issues may arise where a party seeks to obtain a protection order under state and territory family violence legislation where children are involved but no parenting order is in place. Reforms to pt VII of the Family Law Act in 2006 included removal of the power for state and territory courts to make new parenting orders in the course of protection order proceedings. A key reason for repealing the power of state and territory courts to make new parenting orders was the limited time and expertise of magistrates courts to perform this role.

However, pursuant to s 68N of that Act, courts of summary jurisdiction can make parenting orders with the consent of the parties. Contact orders made on this basis by state and territory courts in the context of a protection order can be a useful stop-gap measure. The Commissions propose a role for further training and development programs in this area.

Proposal 8–13 The Australian Government—in conjunction with state and territory governments, the National Judicial College of Australia, the Judicial Commission of NSW and the Judicial College of Victoria—should provide ongoing training and development for judicial officers in state and territory courts who hear proceedings for protection orders on the exercise of their powers under the Family Law Act 1975 (Cth).

Other possible inconsistencies

Protection orders may be inconsistent with responsibilities imposed under the Family Law Act other than by ‘an order, injunction or undertaking’, for example, the parental responsibility obligation. Each parent of a child who is under 18 has parental responsibility for the child. There is no legislative provision for parental responsibility to be displaced by a protection order in a state or territory court.

A related question arises where protective conditions are set out in laws other than state and territory family violence laws—for example, as a protective condition of bail. In the case of Dunne v P [2004] WASCA 239, the Supreme Court of Western Australia noted that the provisions of the Bail Act 1982 (WA) dealing with protective bail conditions had not been prescribed for the purposes of reg 12BB of the Family Law Regulations. Pursuant to s 109 of the Australian Constitution, a state law or court order will be overridden, to the extent of any proper exercise of the jurisdiction of a federal court, which is inconsistent with the state law or court order. However, Malcolm CJ noted authority from P v P (1994) 181 CLR 583 at 602 that:

A law of the Commonwealth conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorising or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done.

Malcolm CJ expressed the view that there is nothing in pt VII of the Family Law Act to indicate that the powers to confer a parenting order are to be exercised other than in conformity with the general law of the state, including the Bail Act. McClure J issued a concurring order. Special leave to appeal to the High Court was refused.

The Commissions are interested in hearing further views on the potential for inconsistencies between rights and responsibilities under the Family Law Act and state and territory family violence laws other than those covered by pt VII div 11 of the Family Law Act. In particular, is there a need to expand the division’s operation to encompass a broader scope of potential inconsistencies?

Division 11 could also be expanded to cover inconsistencies between protective bail conditions and parenting orders under the Family Law Act. A potential advantage of extending the operation of div 11 to protective bail conditions could be, for example, enlivening the requirements in s 68Q for courts to make declarations of inconsistency. Any such amendment could also clarify which requirements should take precedence where protective bail conditions conflict with parenting orders.

Question 8–14 Should the provisions for resolving inconsistent orders under pt VII div 11 of the Family Law Act 1975 (Cth) be expanded to include inconsistencies resulting from:

  1. a party’s rights or responsibilities under the Family Law Act other than those pursuant to an order, injunction or undertaking, such as those deriving from the concept of parental responsibility; and/or
  2. laws other than family violence laws prescribed in reg 12BB of the Family Law Regulations 1984 (Cth), such as protective bail conditions?

[7]M Kaye, J Stubbs and J Tolmie, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 93, 98. See also Kearney McKenzie & Associates, Review of Division 11 (1998), 15.