The Terms of Reference direct the Commissions to consider the interaction in practice of state and territory family violence laws with the Family Law Act 1975 (Cth). Under pt VII of the Family Law Act, federal family courts are empowered to make orders dealing with the treatment of children in Family Law Act proceedings, including parenting orders. A key area where this interaction occurs is in the making of parenting orders that include conditions for contact (broadly referred to in this chapter as parenting orders). The Family Law Act sets out detailed considerations to which a family court must have regard in deciding whether to make a particular parenting order including:

  • any family violence involving the child or a member of the child’s family;[1] and
  • any family violence order that applies to the child or a member of the child’s family, provided the order is a final order or its making was contested.[2]

The principal legislative mechanism for dealing with inconsistent family violence orders and certain orders, including parenting orders, made under the Family Law Act is set out in pt VII div 11 of the Act. A substantially identical scheme is set out in pt 5 div 10 of the Family Court Act 1997 (WA).

The purpose of pt VII div 11 of the Family Law Act is set out in s 68N:

(a) to resolve inconsistencies between:

(i) family violence orders; and

(ii) certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and

(aa) to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and

(b) to achieve the objects and principles in section 60B.

[1]Family Law Act 1975 (Cth) s 60CC(3)(j).

[2]Ibid s 60CC(3)(k).