Parenting proceedings under the Family Law Act
An ongoing challenge in the interaction between family violence protection orders and conditions for contact under parenting orders is the evidentiary weight to which protection orders—as distinct from family violence per se—should be accorded in parenting proceedings. The Family Law Act currently involves a compromise position, whereby all protection orders must be notified to family courts, but only final and contested orders are independently taken into account in determining what parenting orders would be in a child’s best interest. In the Commissions’ preliminary view, the distinction between considering final and contested protection orders on the one hand, and interim and uncontested orders on the other, should be removed.
The Commissions have considered two options for implementing such a reform. First, that the requirement to consider protection orders should be removed altogether and, instead, reliance placed on a general requirement to consider the need to protect the child from family violence or, as recommended in the Chisholm Review, a child’s safety and wellbeing. A potential downside of this option, however, may be to decrease the visibility of family violence as a factor in making parenting orders.
An alternative approach would be to include a requirement to consider ‘any family violence, including as indicated by the existence of any protection order’, which removes the distinction in law between final and contested orders, and interim and consent orders. This approach is intended to highlight the probative value of the full range of protection orders in making parenting orders.
Proposal 8–5 The ‘additional consideration’ in s 60CC(3)(k) of the Family Law Act 1975 (Cth), which directs a court to consider only final or contested protection orders when determining the best interests of a child in making a parenting order, should be:
(a) repealed, and reliance placed instead on the general criterion of family violence contained in s 60CC(3)(j);
(b) amended to provide that any family violence, including evidence of such violence given in any protection order proceeding—including proceedings in which final or interim protection orders are made either by consent or after a contested hearing—is an additional consideration when determining the best interests of a child.
Consent orders under the Family Law Act
Parenting orders that are inconsistent with protection orders can be made by family courts on the basis of the consent of the parties. Community lawyers and family violence workers have reported instances where women felt pressured into agreeing to consent-based parenting orders that were inconsistent with protection orders and that, as a result, exposed them to the risk of violence.
Rule 10.15A of the Family Law Rules imposes requirements on parties seeking to make consent orders in the Family Court where there are allegations of child abuse. Pursuant to the rule, in any application for consent orders a party, or the party’s lawyer, must advise the court whether there has been any allegation of child abuse, or risk of abuse, that has been raised in the proceedings. The Chisholm Review has suggested that consideration should be given to extending r 10.15A to the context of family violence allegations. It further suggested that the rule be adopted in the Federal Magistrates Court.
Rule 10.15A does not apply where parties apply for consent orders without having commenced parenting proceedings in the Family Court. The Family Court has published an Application for Consent Orders Kit, which notes that, if the proposed consent orders are inconsistent with an existing protection order, the Family Court will not make the orders unless parenting proceedings are instituted. The Kit also advises parties to seek legal advice in this situation.
Issues also arise in relation to interim parenting proceedings because there is insufficient opportunity for the court to properly consider issues of family violence. The Commissions are interested in hearing whether any additional measures are necessary to ensure that allegations of family violence are given adequate consideration in the context of interim parenting proceedings.
Proposal 8–6 Rule 10.15A of the Family Law Rules 2004 (Cth) should apply to allegations of family violence in addition to allegations of child abuse. A substantially equivalent rule should apply to proceedings in the Federal Magistrates Court.
Question 8–2 How often do federal family courts make consent orders that are inconsistent with current protection orders without requiring parties to institute parenting proceedings? Are additional measures needed to prevent this—for example, by including a requirement in the Family Law Rules 2004 (Cth) for parenting proceedings to be initiated where parties propose consent orders that are inconsistent with current protection orders?
Question 8–3 Are additional measures necessary to ensure that allegations of family violence in federal family courts are given adequate consideration in interim parenting proceedings? If so, what measures would be beneficial?
Protection order proceedings under family violence laws
The 1998 Kearney McKenzie Report considered the legislation passed by states and territories to make it possible for judicial officers to consider any relevant parenting orders in proceedings for a protection order. Most submissions to that review agreed that imposing a clear duty on parties to inform the court of a parenting order was useful. However, some concerns were raised that requiring the magistrate to consider parenting orders could impact adversely on the protective role of proceedings under family violence legislation. For example, protection orders may be framed in order to be consistent with parenting orders but may provide a lower standard of protection, or may not be made at all because they would be inconsistent with existing parenting orders. The Commissions are interested in stakeholder views on whether this issue is arising in practice.
The Commissions consider that courts should not significantly lower the standard of protection afforded by a protection order for the purpose of facilitating consistency with a parenting order. This could be set out in legislation. A similar outcome could be achieved by including such a requirement in bench books.
Proposal 8–7 State and territory courts hearing protection order proceedings should not significantly lower the standard of protection afforded by a protection order for the purpose of facilitating consistency with a current parenting order. This could be achieved by:
(a) a prohibition to this effect in state and territory family violence legislation; or
(b) guidance in relevant state and territory bench books.