Parenting proceedings under the Family Law Act
‘Friendly parent’ provision
Concerns have been raised that certain provisions of the Family Law Act may impede the extent to which family courts are informed about any history or risk of family violence. In particular, concerns have been raised about:
- s 60CC(3)(c)—which requires the court to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, the ‘friendly parent’ provision; and
- s 117AB—which requires a court to make costs orders against a party who knowingly makes false allegations or statements in Family Law Act proceedings.
Extensive reforms to these provisions have been recommended in the Chisholm Review and the Family Law Council advice. The Commissions endorse the recommendations for reform of the ‘friendly parent’ provision and costs orders requirement set out in these reports.
However, in the event that the recommendations of the Chisholm Review and the Family Law Council are not adopted, then consideration should be given to other practices that may ensure that parents who have sought protection orders are not disadvantaged in family law proceedings. For example, state and territory child protection laws should be amended to impose a requirement on child protection agencies that advise parents to seek a child protection order to provide written advice to this effect. This will help to ensure that family courts do not construe the parent’s action as ‘unfriendly’ for the purposes of s 60CC(3)(c).
Proposal 8–1 State and territory child protection laws should be amended to require a child protection agency that advises a parent to seek a protection order under state or territory family violence legislation for the purpose of protecting the child to provide written advice to this effect to ensure that a federal family court does not construe the parent’s action as a failure to ‘facilitate, and encourage, a close and continuing relationship between the child and the other parent’ pursuant to s 60CC(3)(c) of the Family Law Act 1975 (Cth).
Form 4—Notice of Child Abuse or Family Violence
A Form 4—Notice of Child Abuse or Family Violence may be filed by parties raising allegations of family violence, or a risk of family violence, in proceedings in the family courts. The Family Law Council recommended that the federal family courts consider revising Form 4, including making it more user-friendly. In comparison, the Chisholm Review recommended that the form should be replaced by a completely new approach to raising allegations of family violence in federal family courts—namely, a targeted identification and risk assessment process.
The Commissions consider that there is scope for improving Form 4, which does not include a designated space for parties to note existing protection orders. In the event that Form 4 is retained by the federal family courts, the form should be amended in this way. If retained as a component of proceedings in federal family courts, Form 4—Notice of Child Abuse or Family Violence—should be amended to include a designated space for parties to note information about current protection orders obtained under state and territory family violence legislation or applications for such orders.
Initiating Application (Family Law)
The Commissions are also concerned about the lack of prominence given to protection orders, and pending proceedings for protection orders, in the Initiating Application in the family courts. This form uses the one question to deal with court orders in relation to family law, child support, family violence or child welfare. In comparison, some state and territory protection order application forms separately ask for details about, for example, children’s court orders, intra- and inter-state protection orders, and family court orders. In the Commissions’ view, it would be beneficial for the matters currently listed in Part F of the Initiating Application to be separated out into discrete questions. Such an approach may highlight more clearly to parties the need to include information about relevant protection orders.
Proposal 8–2 Application forms for initiating proceedings in the federal family courts and the Family Court of Western Australia should clearly seek information about existing protection orders obtained under state and territory family violence legislation or pending proceedings for such orders.
Protection order proceedings under family violence laws
Making state and territory courts aware of family law orders
With the exception of the ACT, the family violence legislation in each of the states and territories includes provisions to ensure that courts gain access to information about parenting orders. This information is central to ensuring that proceedings for protection orders are conducted on an informed basis.
The most common approach is to impose a legally enforceable obligation on parties to inform the court about pre-existing orders. However, this mechanism may not always be effective—for example, where parties are unrepresented, or where orders have been made ex parte. Particular difficulties may also arise where applicants are from culturally and linguistically diverse backgrounds or other vulnerable groups, such as persons with a disability.
In comparison, the Victorian family violence legislation places an obligation on a court that decides to make a protection order to enquire as to whether a parenting order or a child protection order is in force in relation to any child of the protected person.
The Commissions are interested in stakeholder views on extending the Victorian model to other states and territories. This requirement could either replace, or operate in addition to, any obligation on parties to inform the court about protection orders of which they are aware.
Proposal 8–3 State and territory family violence legislation should provide mechanisms for courts exercising jurisdiction under such legislation to be informed about existing parenting orders or pending proceedings for such orders. This could be achieved by:
- imposing a legally enforceable obligation on parties to proceedings for a protection order to inform the court about any such parenting orders or proceedings;
- requiring courts making protection orders to inquire as to any such parenting orders or proceedings; or
- both of the above.
Police-issued protection orders
A separate issue arises in relation to police-issued protection orders. Under the Northern Territory family violence legislation, a police officer who is considering making a police ‘domestic violence order’ must make ‘reasonable enquiries’ about the existence or otherwise of any relevant parenting orders in force, or pending applications for such orders. If asked by an officer, a person must inform the officer about any such parenting orders or applications.
Elsewhere the Commissions propose that police-issued protection orders should only apply for a limited period of time. If such orders operate for a short length of time the need for police who issue them to ascertain whether any parenting orders are in existence, or whether proceedings for such orders are pending, is not as great. However, if state and territory governments retain police-issued protection orders that operate for significantly longer time periods, then these should be accompanied by safeguards for obtaining information about parenting orders.
Question 8–1 In practice, what steps does a police officer who issues a protection order have to take in order to make ‘reasonable enquiries’ about the existence or otherwise of a ‘family law order’, pursuant to the Domestic and Family Violence Act 2007 (NT)? Should this requirement apply to police who issue protection orders in other states and territories?
In the Commissions’ view, application forms for protection orders should clearly and specifically ask about the existence of family court orders or pending proceedings for such orders. For example, the Queensland Protection Order Application asks whether a court has made any other orders involving the victim and the person who has allegedly used violence, or if there are other proceedings that are yet to be decided in another court involving these people. Individual check boxes are then set out for current and non-current: children’s court orders; Queensland ‘domestic violence’ orders; interstate or New Zealand domestic violence orders; and family court orders.
Proposal 8–4 Application forms for protection orders in all states and territories, including applications for variation of protection orders, should clearly seek information about existing parenting orders or pending proceedings for such orders.