Key interaction issues

15.77 Interaction issues will not arise in all cases involving family violence. Family violence is not an issue in all cases before federal family courts. Similarly, not all people who seek family violence protection orders are involved in proceedings in the family courts. This may be because separation and parenting matters are not an issue in every case, or may be resolved without the involvement of a family court. It may also be because some people have difficulty accessing family courts—for example because the costs of legal proceedings or geographic remoteness make access to courts impractical. In particular, several stakeholders noted that statistics show that the number of Indigenous people accessing family courts is low.

15.78 However, for those people that do need to seek orders from a state or territory court to ensure their personal protection and also resolve family law matters, it is important that the legal system supports and facilitates this as seamlessly and effectively as possible. It is also important to ensure that recommendations for reform to address the problems caused by the interaction between state and territory family violence legislation and the Family Law Act do not interfere unduly with the effective operation of the protection order system in cases where interaction issues do not arise.

15.79 Submissions and consultations in this Inquiry highlighted how the interaction between protection orders made under state and territory family violence legislation and parenting orders made under the Family Law Act can lead to a range of ‘gaps’ in the protection of victims of family violence.

Inconsistent orders

15.80 Protection orders and parenting orders may contain inconsistent conditions. Sometimes orders will be directly inconsistent. For example, a protection order may prohibit a person from coming within a specified distance of the other parent’s home, while a parenting order allows the parent to collect and return the children at the home. At other times, orders will be inconsistent in practice—while they are not directly contradictory, it is difficult or impossible to comply fully with both. For example, a parenting order may allow a parent to spend time with a child, while a protection order prohibits that parent from communicating with the person with whom the child lives, making it difficult to comply with the parenting order.[90]

15.81 The Family Law Act provides that a protection order made under state or territory family violence legislation that is inconsistent with a Family Law Act order which provides for, requires or authorises a person to spend time with a child, is invalid to the extent of the inconsistency.[91] This means that conditions in a parenting order made under the Family Law Act will override any inconsistent requirements in a protection order, which, in itself can lead to a gap in protection.

15.82 A number of submissions to this Inquiry noted that the fact that a parenting order overrides a protection order can lead to gaps in the protection of victims of family violence, particularly when the terms of the parenting order do not include arrangements for the safety of all parties.[92] Dr Lucy Healey, a Research Fellow in a family violence reform research team, led by Professor Cathy Humphreys at the University of Melbourne, included the following example in her submission:

One woman reported that a Family Court judge made comments such as; “I don’t know why you’re here”, “Are you trying to stop the father seeing the children?” and “I don’t see why you can’t just change over at McDonald’s like other couples”. Her ex-partner had stalked her, tailgated her and tried to run her off the road when driving the children to meet their father but these did not appear to be seriously considered in court. (This woman had left her husband after a 13 year marriage when he threatened to kill their children and himself. She had a disability that was not readily obvious and both of her children were autistic.) In her view, the fact that Family Court Orders over-rode Intervention Orders with exclusion conditions made the latter a ‘waste of time’.[93]

Culture and practice of state and territory courts

Standard exceptions for contact

15.83 In practice, inconsistency is often avoided by state and territory courts making exceptions for contact or communication authorised or required by a family law order from the conduct prohibited in the protection order.[94] Contact authorised by ‘order of any court’ is a standard exception to prohibitions on communication or contact in a protection order.

15.84 In effect, this means that responsibility for deciding how contact should take place, when there are children involved, is left to a decision by a federal family court or agreement between the parties. Even though state and territory magistrates courts have limited jurisdiction under the Family Law Act, as discussed in Chapter 16 the Commissions have heard in this Inquiry that this jurisdiction is rarely exercised by courts making protection orders under family violence legislation. A reluctance to exercise family law jurisdiction, and a preference to leave such matters for federal family courts, has several consequences.

Some magistrates are reluctant to exercise family law jurisdiction

15.85 Some stakeholders have reported difficulties seeking a protection order from a state or territory court when proceedings have been commenced in the family court. For example, in their study on family violence and parenting arrangements, Miranda 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’.[95]

15.86 There are also concerns that some magistrates are reluctant to deal with family law matters even where formal family law proceedings have not been commenced. For example, a confidential submission noted that:

When in the process of considering domestic violence orders, state based courts will frequently ‘shy away’ from making any decisions that are relevant, or might impact or be construed to be, jurisdiction of the family court...

We often hear magistrates at [family violence] courts say ‘you have to take that issue to that court, it’s not this court’s business or an issue for today’. Courts don’t seem willing to take on the work that another court has done, or needs to do. In these cases, when the issue is one of child or adult safety at contact or handover, the overriding message is that the violence is not as important as the accuracy of the family court orders and/or child contact arrangements.[96]

15.87 This is not, however, true of all magistrates courts—education and training and specialised practices in some family violence courts have increased the willingness and capacity of magistrates courts to deal with family law issues where relevant to the protection of a victim of family violence.

Culture and practice of federal family courts

15.88 The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced the presumption of equal shared parental responsibility into the Family Law Act and the requirement that courts consider whether a child spending equal time with both parents is reasonably practical and in the best interests of the child. In addition, the ‘best interests of the child’ test in s 60CC of the Family Law Act was amended to make the benefit to the child of having a meaningful relationship with both parents and protection from physical and psychological harm the primary considerations when deciding the best interests of the child.

15.89 The effect of these amendments on victims of family violence has been strongly criticised—both in submissions to this Inquiry and in other reports, including those set out in Chapter 1. In particular, there is a concern that, where there are issues of family violence, the child’s interest in having contact with both parents has come to outweigh the protection of victims of family violence.[97]

15.90 For example, Women’s Legal Service Victoria provided a case study in which a father, ‘Peter’, who had been extremely violent towards his partner ‘Kirsty’ in front of their child:

In this matter, the Independent Children’s Lawyer [ICL] was of the opinion that, despite Peter’s extraordinarily violent behaviour, [the child] should have contact, albeit limited, with Peter. The final orders were made based on the ICL’s Minutes of Proposed Orders. It reinforces a view that contact, albeit with a frighteningly violent parent, is preferable to no contact for the sake of protection.

This runs contrary to [the approach under] the Victorian Family Violence Protection Act 2008 which mandates a Magistrate to order ‘no contact’ if contact ‘may’ jeopardise the child’s or potentially the parent’s safety.

The inconsistency in approach between the Magistrates Court and the Family Court led to different orders and approaches to the extensive family violence Kirsty and [her child] had experienced.[98]

15.91 Women’s Legal Service Victoria submitted that:

This case study demonstrates that the lack of integration between the Family and Magistrates Courts means that vulnerable parties are not adequately protected from violence and abuse. It also shows the very high test for violence a victim has to satisfy before a no contact order can be made by the Family Court. This is probably as a result of the tension in the current Family Law Act between protection from abuse and the need for children to have a meaningful relationship with both parents.[99]

15.92 Other submissions were critical that insufficient weight is being given in family law proceedings to findings of family violence. For example, the Murray Mallee Community Legal Service noted that while

the Family Law Act places a responsibility on the federal family courts to ensure people’s safety from family violence ... it appears that in practice the Family Law Act does not take family violence against women and children seriously. Those of our family law clients who experience family violence do not find that the Family Law Act protects them or their children. For example, in several clients’ cases parenting orders have been made providing that children spend substantial amounts of unsupervised time with the other parent, despite the Family Court acknowledging that that parent was violent and abusive.[100]

Unclear pathways

15.93 Several submissions to this Inquiry characterised victims’ experiences of negotiating the various legal systems as a form of further abuse and victimisation,[101] in which victims are often required to retell their story to different courts, lawyers and counsellors working across different jurisdictions. In addition, victims who feel that they have successfully obtained protection from family violence by obtaining a protection order find that the protection order can be overruled by a family court order.

15.94 The Magistrates’ Court and Children’s Court Victoria noted the impact on victims caused by the silos that currently exist between the protection order and family law jurisdictions:

Currently the pathways to resolution of parenting arrangements following intervention order proceedings can be unclear and ad hoc. Despite family violence being a cross jurisdictional issue, the state/territory family violence jurisdictions and the federal family law jurisdictions often operate in silos. This results in duplication as parties attend multiple court dates in different courts, get advice from different lawyers (family violence duty lawyers and then family lawyers) and re-litigate the same issues in different forums. This system is not effective or efficient and it does not maximise safety. Such a system creates opportunities for the process itself to become a tool of further abuse. It creates the potential for inconsistent orders. There is a concern that family violence can get minimised along the way.[102]

15.95 State and territory magistrates courts are often the first point of contact with the legal system for separating families affected by family violence. In many cases, protection order proceedings are commenced to secure the immediate protection of a victim of family violence, while family law matters take longer to resolve. However, unresolved parenting issues, which can heighten the risk of family violence, may be present at this first point of contact.

15.96 In light of this, the Victorian Magistrates’ Court and Children’s Court submitted that it is ‘crucial that a clear pathway is provided to deal with cross-jurisdictional issues of family violence and parenting orders’.[103]

[90] See Australian Government Solicitor, Domestic Violence Laws in Australia (2009), [6.2.2].

[91]Family Law Act 1975 (Cth) s 68Q(1).

[92] See, eg, Michelle O, Submission FV 153, 24 June 2010; K Johnstone, Submission FV 107, 7 June 2010; L Healey, Submission FV 64, 1 June 2010.

[93] L Healey, Submission FV 64, 1 June 2010.

[94] Family Law Council, Review of Division 11—Family Violence (2004), 7.

[95] 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. Similar practices were reported by some participants in the ALRC Family Violence Online Forum.

[96] Confidential, Submission FV 190, 25 June 2010.

[97] R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112. Submissions that expressed this view include: Confidential, Submission FV 190, 25 June 2010, Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010; Murray Mallee Community Legal Service, Submission FV 167, 25 June 2010; Perinatal Mental Health Service at St George Hospital, Submission FV 165, 25 June 2010; Confidential, Submission FV 156, 24 June 2010; Women’s House Shelta, Submission FV 139, 23 June 2010; Victims of Crime Assistance League Inc NSW, Submission FV 133, 21 June 2010; S Waddell, Submission FV 127, 21 June 2010; Victorian Government, Submission FV 120, 15 June 2010; J Drake, Submission FV 66, 1 June 2010; Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010; P Easteal, Submission FV 40, 14 May 2010.

[98] Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

[99] Ibid.

[100] Murray Mallee Community Legal Service, Submission FV 167, 25 June 2010. See also NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010.

[101] NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010; C Stoney, Submission FV 134, 22 June 2010; K Hall, Submission FV 113, 8 June 2010; Confidential, Submission FV 86, 2 June 2010.

[102] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[103] Ibid.