Obligations on federal family courts to specify and explain any inconsistency
Section 68P of the Family Law Act applies if a parenting order requires or authorises a person to spend time with a child, and the order is inconsistent with an existing family violence order. The court must specify in the order that it is inconsistent with an existing family violence order; and explain to the parties the court’s reasons for making an inconsistent order. The Commissions are interested in stakeholder views about the operation, in practice, of this requirement. In particular, is it overly burdensome on family courts or overly complex for persons affected by inconsistent orders?
Question 8–4 Is s 68P of the Family Law Act 1975 (Cth), which requires a family court to specify any inconsistency between a family law order and a family violence protection order, working in practice? Are any reforms necessary to improve the section’s operation?
Section 68Q provides that where a parenting order is inconsistent with a family violence order, the family violence order is invalid. Parties may apply to the court for a declaration of inconsistency. These declarations are a potentially valuable mechanism for ensuring that persons affected by the orders, and police charged with enforcing them, are confident about which order applies.
Question 8–5 Is s 68Q(2) of the Family Law Act 1975 (Cth), which permits certain persons to apply for a declaration of inconsistency between a family law order and a family violence protection order, working in practice? How frequently is this provision used?
Powers of state and territory courts to resolve inconsistency
Under s 68R of the Family Law Act, state and territory courts making or varying protection orders may revive, vary, discharge or suspend a parenting order made under the Family Law Act. The Commissions have heard extensive anecdotal evidence about the reluctance of state and territory courts to use this power. The Commissions are seeking further views of stakeholders on whether state and territory courts remain hesitant to use the s 68R power and, if so, what factors are contributing to this reluctance.
Question 8–6 Do state and territory courts exercise their power under s 68R of the Family Law Act 1975 (Cth) to revive, vary, discharge or suspend a parenting order to give effect to a family violence protection order?
The family violence legislation in Victoria and South Australia makes express reference to the power of a magistrate to vary or suspend a parenting order when making or varying a protection order. Section 16(1) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) states that:
An intervention order is invalid to the extent of any inconsistency with a Family Law Act order of a kind referred to in section 68R of the Family Law Act 1975 of the Commonwealth (but the Court may resolve the inconsistency by exercising its power to revive, vary, discharge or suspend the Family Law Act order under that section).
This provision serves to bring the Commonwealth law to the attention of judicial officers but does not change the effect of that law. Section 90 of the Family Violence Protection Act 2008 (Vic) goes further, by requiring that:
The court must, to the extent of its powers under section 68R of the Family Law Act, revive, vary, discharge or suspend the Family Law Act order to the extent that it is inconsistent with the family violence intervention order.
At this stage, the Commissions are of the view that the approach adopted in the South Australian legislation is sufficient, but are interested in stakeholder views on whether courts should be required to make use of the full extent of their powers to revive, vary, discharge or suspend Family Law Act orders.
Proposal 8–8 Family violence legislation should refer to the powers under s 68R of the Family Law Act 1975 (Cth) to revive, vary, discharge or suspend a parenting order to give effect to a family violence protection order by:
- referring to the powers—the South Australian model; or
- requiring the court to revive, vary, discharge or suspend an inconsistent parenting order to the extent that it is inconsistent with a family violence protection order—the Victorian model.
Without more, legislative amendment alone may be insufficient to achieve significant change. In particular, the Commissions consider that there is an ongoing need to provide additional tools and resources to judicial officers and others about the capacity to revive, vary, discharge or suspend Family Law Act orders.
The Commissions are interested in whether there is a need for any systematic changes to enable div 11 to operate effectively. In particular, would it be desirable for matters involving inconsistent orders to be referred to a specialist court? For example, the Family Violence Court Division specialist court pilot at Heidelberg and Ballarat Magistrates Court hears matters including parenting and protection orders. The use of specialist courts could overcome some of the current concerns about the unwillingness of state and territory judicial officers to intervene in family law issues. However, potential disadvantages may include delays, depending on the length of time that applicants must wait for proceedings to commence in a specialist court. Specialist courts are discussed in Chapter 20.
Question 8–7 Should proceedings for a protection order under family violence legislation, where there is an inconsistent parenting order, be referred to a specialist state and territory court?
In the Commissions’ view, support should also be provided to other persons involved in seeking protection orders under state and territory family violence legislation—that is, victims of violence and legal practitioners. As regards victims, a clear option should be included in application forms for protection orders allowing an applicant to request that the magistrates court vary, suspend, or discharge a parenting order. The Commissions anticipate that such a reform would be especially useful to a self-represented party, who may otherwise not be aware that such an option is available.
Proposal 8–9 Application forms for protection orders under state and territory family violence legislation should include a clear option for an applicant to request a variation, suspension, or discharge of a current parenting order.
Legal practitioners may also be reluctant to advocate the use of s 68R. The Commissions have heard anecdotal evidence that legal practitioners may be unwilling to invest time in seeking a variation of parenting orders because of the potential that the variation will be overridden in a federal family court. Further, where a variation is sought in proceedings for an interim protection order, any variation will expire after 21 days.
Question 8–8 Are legal practitioners reluctant to seek variation of parenting orders in state and territory courts? If so, what factors contribute to this reluctance?
The jurisdiction to revive, vary, discharge or suspend a parenting order in Western Australia differs depending on whether the order was made under the Family Law Act or the Family Court Act 1997 (WA). Jurisdiction in relation to parenting orders made under the Family Law Act is limited by the Jurisdiction of Courts of Summary Jurisdiction (Children) Proclamation 2006 (Cth), issued in accordance with s 69J of the Family Law Act. The Proclamation provides that proceedings within the Perth metropolitan area in relation to matters arising under pt VII of the Family Law Act may only be instituted in, or transferred to, the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia (Magistrates Court of Western Australia).
The Principal Registrar of the Family Court of Western Australia has queried the effect of this Proclamation on WA magistrates seeking to adjust parenting orders made under the Family Law Act. Principal Registrar Monaghan advised that the Proclamation could be interpreted to support three potential outcomes. First, it may mean that all magistrates sitting in the Perth metropolitan region retain the s 68R power. Secondly, it may mean that magistrates sitting in the Perth metropolitan region other than at the Magistrates Court of Western Australia, retain the s 68R power only when making an interim protection order. Thirdly, it may mean that magistrates sitting in the Perth metropolitan region other than at the Magistrates Court of Western Australia having no s 68R power.
The consequences of this jurisdictional issue are exacerbated by s 65 of the Restraining Orders Act, which specifies that a court which does not have jurisdiction to adjust a parenting order must not make a protection order that conflicts with that parenting order.
The Jurisdiction of Courts of Summary Jurisdiction (Children) Proclamation may be discouraging WA magistrates from using their s 68R power in protection order proceedings. In the Commissions view, the Proclamation should be reviewed to clarify its intended application.
Proposal 8–10 The Jurisdiction of Courts of Summary Jurisdiction (Children) Proclamation 2006 (Cth) should be reviewed to clarify its intended application to magistrates courts in Western Australia seeking to exercise their powers under div 11 of the Family Law Act 1975 (Cth).
Relevant considerations in modifying or revoking a parenting order
Section 60CG of the Family Law Act imposes an obligation on family courts making parenting orders to achieve consistency with family violence orders and avoid exposing people to the risk of family violence. This requirement is not, however, repeated in pt VII, div 11 of the Act in relation to state and territory courts reviving, varying, discharging or suspending parenting orders.
The Kearney McKenzie Report expressed the view that this objective is ‘critical to achieving the purposes of Division 11’ and recommended it be repeated in that division. The Family Law Council did not agree, advising that this objective applies to courts making parenting orders, where the paramount consideration is the best interests of the child, but that Division 11 deals with situations in which contact orders are being considered where family violence orders are in existence or are about to be made. The Family Law Council was of the view that in this situation, while the court must have regard to the best interests of the child, such interests are not the paramount consideration and must give way to the right of other family members to be protected from threat of violence.
Instead, the Family Law Council recommended that the considerations to which a court must have regard in varying a parenting order should be amended to include the need to protect all family members from family violence and the threat of family violence and, subject to that, to the child’s right to contact with both parents, provided such contact is not contrary to the best interests of the child.
Neither suggestion was taken up in the 2006 redraft of div 11. However, a note to s 68R(5) was inserted cross-referring to the principles set out in ss 60CB–60CG for determining a child’s best interests.
The Commissions are interested in stakeholder views on whether any further reforms are desirable or necessary to the considerations to which a court must have regard in varying a parenting order? In particular, should the Family Law Act be amended to direct state and territory courts varying parenting orders to give priority to the protection of family members against violence and the threat of family violence over a child’s interest in having contact with both parents?
Question 8–9 Should the Family Law Act 1975 (Cth) be amended to direct state and territory courts varying parenting orders to give priority to the protection of family members against violence and the threat of family violence over a child’s interest in having contact with both parents?
A power to make parenting orders?
In 2006 the Family Law Act was amended to repeal the power of state and territory judicial officers to make parenting orders, on the basis of recommendations of the Kearney McKenzie Report and the Family Law Council. Consequently, new parenting orders can only be issued in state and territory protection order proceedings with consent and on an interim basis. In this Inquiry, some stakeholders have expressed the view that this power should be reinstated, on the basis that it enables state and territory courts to deal comprehensively with protection order proceedings involving children. The Commissions are interested in further stakeholder views on this issue.
Question 8–10 Should s 68R of the Family Law Act 1975 (Cth) be amended to empower state and territory courts to make parenting orders in those circumstances in which they can revive, vary, discharge or suspend such orders?
Interim family violence protection orders
Where a state or territory court making an interim family violence protection order revives, varies or suspends a parenting order, s 68T of the Family Law Act provides that the variation ceases to have effect when the interim order ends or after 21 days, whichever is earlier. The Kearney McKenzie Report recommended that this period be extended to 90 days on the basis that 21 days is insufficient time in which to obtain new orders from a court exercising family law jurisdiction.
The Family Law Council did not agree with this recommendation, on the basis that a 90 day period during which no contact would occur, and which is not subject to appeal or scrutiny by a court exercising family law jurisdiction, could not be justified. The Council further suggested that—in circumstances where a magistrates court has varied or suspended a parenting order when making an interim protection order—a court would be unlikely to find that a parenting order has been breached, where a parent withholds contact beyond the 21 day period, while an application to vary or discharge the parenting order is awaiting hearing.
A possible option for reform would be to set out in legislation the policy position set out in the Family Law Council’s advice—that is, that it should be a defence to a breach of a parenting order where a parent withholds contact beyond 21 days while a variation or suspension of a parenting order made by a state or territory court is awaiting hearing in a family court.
Question 8–11 Do applicants for interim protection orders who seek variation of a parenting order have practical difficulties in obtaining new orders from a court exercising family law jurisdiction within 21 days? If so, what would be a realistic time within which such orders could be obtained?
Question 8–12 Should there be a defence to a breach of a parenting order where a parent withholds contact beyond 21 days due to family violence concerns while a variation or suspension of a parenting order made by a state or territory court is awaiting hearing in a federal family court or the Family Court of Western Australia?
In Tasmania, a protocol has been negotiated between the police, the Tasmanian Magistrates Court and the Tasmanian Registry of the Family Court in response to police concerns about victim safety where protection orders operate alongside family court orders. Under the protocol, if a family court contact order poses a risk to the safety of a victim of family violence, the police prosecutor alerts the magistrate of this concern. The magistrate can suspend the order for a period of days and make the protection order. The Magistrates Court file with the grounds for suspension is transferred to the Family Court for review of the contact order within the period of suspension. A review of the Family Violence Act 2004 (Tas) by Urbis recommended that the effectiveness of this protocol be evaluated over time.
Proposal 8–11 The Tasmanian Government should undertake an evaluation of the protocol negotiated between the Magistrates Court of Tasmania and the Tasmanian Registry of the Family Court in relation to coexisting family violence protection orders and parenting orders. On the basis of this evaluation, other states and territories should consider whether adopting cooperative models would be an effective strategy to deal with coexisting orders.
Urbis (for the Tasmanian Government Department of Justice), Review of the Family Violence Act 2004 (Tas) (2008), [3.5].