Family law and family violence
Introduction
There are several areas where the work of the Family Court directly relates to domestic violence. They include:
- The workings of the Family Court
- Parenting orders
- Location and recovery orders
- Family violence orders (which in NSW are AVOs)
- The relationship between parenting orders and AVOs
- Injunctions for personal protection
Domestic violence and the workings of the Family Court
Parenting orders | Location and recovery orders
Family violence orders | Family violence injunctions
Other personal protection injunctions | Chart 12 - Family Court
AVO applications and contact orders
The Local Court: varying contact orders when making AVOs
Where a contact order is not consistent with an AVO
Chart 13 - Family Court and Local Court
Domestic violence and the workings of the Family Court
If a person is afraid of their former partner they should tell their lawyer or a staff member of the Family Court so that arrangements, such as separate sessions or conference interviews with counsellors, can be made.
If concerns arise on the day of a Court session or hearing, they should tell Court staff as soon as possible.
People have an obligation to tell the Court if family violence is present – it is a key consideration in residence, living and contact arrangements for children. It can also have important implications for property and maintenance settlements.
The Court must balance a child's right to know and be cared for by both their parents and a child's right to have contact with both their parents with what is in the best interests of a child.
A parent responsible for family violence may forfeit or seriously limit their ability to obtain orders for residence or contact with their child.
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Parenting orders
Orders regarding children under the Family Law Act are called "parenting orders". They include:
Residence order
This states with whom the child is to live. Unlike the old concept of custody, it does not automatically give a person responsibility for day-to-day care of the child. If this is sought, it can be dealt with in a "specific issues order".
Contact order
A contact order sets out how, when and with whom the child has contact. An order can be made for contact in person, in writing or by telephone.
Specific issues order
This deals with "any other aspect of parental responsibility for a child", such as
- Responsibility for the day-to-day
- Long-term care
- Welfare and development of the child such as relationships, education and sport
- Change of name
- Other issues.
What the Court considers
In making a parenting order, the Court must regard the best interests of the child as the paramount consideration.
In determining what is in the child's best interests, the Court must consider a number of things, including:
- The need to protect the child from physical or psychological harm caused, or potentially caused, by being subjected or exposed to abuse, ill-treatment, or violence
- Domestic violence involving a child or a member of the child's family
- Any AVO that applies to the child or a member of the child's family.
Therefore, Courts dealing with parenting orders must now take into account:
- Any history of domestic violence against the child or a member of a child's family and
- Any AVO in force for the protection of the child or a member of the child's family.
Parties to an application for parenting orders must inform the Court of the existence of any relevant AVO.
The Court should, subject to the child's best interests, ensure that the parenting orders made are consistent with any AVO and do not expose a person to an unacceptable risk of family violence.
DoCS and the Family Court
In 1988 the Family Law Act 1975 was amended. The amendment allowed the Family Court to deal with all children and young persons, not just children and young persons of a married couple, but exempted children or young people subject to child welfare laws related to their safety, welfare and well being.
Section 69ZK of the Family Law Act 1975 currently places this limit on the Family Court. This section prevents the Family Court from making any order about a child or young person who is the subject of a State child welfare law. That limit applies until: |
- the child or young person is no longer subject to that child welfare law; or
- the nominated “child welfare officer” of the relevant State gives consent to the Family Court dealing with the child or young person.
The “child welfare laws” that will prevent the Family Court from making orders about the child or young person are, in general terms, Court orders and administrative actions that place a child or young person under the care responsibility or parental responsibility of someone other than the child’s or young person’s parents.
Examples for NSW are:
Children (Care and Protection) Act 1987 and Children and Young Persons (Care and Protection) Act 1998
- persons under the care responsibility of the Director-General following the making of a temporary care arrangement;
- persons under the care responsibility of the Director-General or a designated agency following removal or assumption into care, or an order of the Children’s Court;
- persons under the parental responsibility of a person other than a parent (including the Minister), by an order under the Act.
Adoption of Children Act 1965 and Adoption Act 2000
- persons under the parental responsibility of the Director-General or the Minister following the giving of adoption consents or orders of the Supreme Court.
Guardianship Act 1987
- young persons under the parental responsibility of a person other than a parent (including the Public Guardian), by order of the Guardianship Tribunal under the Act.
The full list of provisions which are regarded as “child welfare laws” for NSW are found in Schedule 5 of the Family Law Regulations which cover all States and Territories.
A “child welfare officer” can however consent to the Family Court making orders about a child or young person who is the subject of a “child welfare law”.
Regulation 12BA of the Family Law Regulations sets out who is a “ child welfare officer” for the Territories and those States in which section 69ZK operates. For NSW, the following persons have been nominated:
- for matters under the Guardianship Act 1987 – the Minister for Disability Services
for matters under the other NSW Acts – the Minister for Community Services. |
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Location and recovery orders
Domestic violence may include threats by the perpetrator that he will take away the woman's child or children. The Family Law Act contains a process whereby children may be located and returned, regardless of whether or not there is a parenting order made in favour of the applicant.
An application for a location or recovery order may be made by:
- A person who has a residence order in relation to a child
- A person who has a contact order in relation to the child
- A person who is responsible for the child's day-to-day or long-term care, welfare and development of the child under a specific issues order
- Any other person concerned with the care, welfare or development of the child.
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A location order may require a person or a Commonwealth Department to provide information to the Court about a child's whereabouts.
If a woman providing information to the Court about a child's whereabouts has had an AVO made for her protection, the information may be provided to the Court in confidence.
A recovery order can require that a child be returned to the child's parent or a person who has a residence order, contact order or specific issues order (dealing with the child's day-to-day or longterm care, welfare and development) in relation to the child.
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Family violence orders
The term family violence order means an order (including an Interim Order) made under a prescribed law of a State or Territory to protect a person from family violence.
In NSW, a family violence order is an ADVO.
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Family violence injunctions
The Family Law Act 1975 (Cth) s60D (1) defines family violence as:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family, that causes that or any other member of the person's family to fear for, or to be apprehensive about, his or her personal well being or safety.
This definition is different from the Crimes Act 1900 (NSW) that deals with domestic violence offences.
It is possible to get a family violence injunction from the Family Court, similar to an AVO, however:
- The range of people able to get such injunctions is more limited than those who can get AVOs
- The process involved is more complex
- The policing of such injunctions including dealing with breaches is more difficult.
In particular, the Family Court has no power to make family violence injunctions covering couples in de facto relationships where there are no children – in this case the applicant must seek an AVO from the Local Court.
The Family Court can only make family violence injunctions against your partner or former partner if:
- You are or were married – in this case the Court can make orders against your spouse including orders for your personal protection and orders stopping your spouse from entering in or remaining near your home or workplace
- You never married your partner but there are children's proceedings before the Court – in this case the Court along with making orders for the protection of your child can also make orders for your protection
- You have a residence, contact or specific issues order in relation to a child – in this case the Court, as well as making orders for the protection of the child, can also make orders for your protection.
| An AVO from the Local Court offers better protection than a Family Court Violence Injunction because AVOs are stored on a central computer which the police have access to, and because breach of an AVO is a crime and the police can make an immediate arrest.
If the woman has a Family Court injunction or protection order, it is a good idea to carry a copy of the order at all times so it can be shown to the police if there is a need to enforce the order urgently.
If the woman needs to make an application to the Family Court for orders about her property or her children then she may want to apply for a protection order at the same time. If there is no other reason to go to the Family Court then the Local Court AVO is probably a better alternative for protection from violence.
Enforcing of family violence injunctions
NSW Police has full authority to enforce Family Court injunctions but because the Family Court is a Federal Court, there is sometimes some confusion about this, which may delay enforcement. |
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Other personal protection injunctions
Under the Property (Relationships) Act 1984 (NSW), a woman can ask a Local Court to issue an injunction for her personal protection and restraining the other party to the relationship from entering her home or workplace. The injunction can include protection for any children involved. A breach of the order can result in six months prison for the offender. Civil remedies are also available for breach of an injunction (e.g. fine, recognisance).
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AVO applications and contact orders
The Family Law Court, and in some circumstances the Local Court, may make contact orders which are inconsistent with an AVO if it is considered in the child's best interest.
The Court must be told of any relevant family violence orders as they may affect the making and operation of Family Court orders, particularly contact orders. The Court must make sure that contact orders do not expose people to family violence.
If the Court makes a contact order that is inconsistent with a family violence order, the contact order overrides the conflicting family violence order (which in NSW will usually be an AVO) to the extent of the inconsistency. This means that the family violence order may ultimately give the victim very limited or no protection and the police may not be able to assist adequately.
Family violence orders can be modified in a State or Territory Court to take into account the practical arrangements for contact.
Alternatively, Family Court contact orders can be made to take into account family violence orders, for example by arranging for an independent person to be present during contact times.
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The Local Court: varying contact orders when making AVOs
A Magistrate making an AVO may make, revive, vary, discharge or suspend a contact order in the course of the AVO proceedings. A Magistrate may only exercise this power when granting or varying a final AVO.
If the Court grants an interim AVO, a contact order cannot be discharged, although it may be made, revived, varied or suspended for the length of the interim order or up to 21 days which ever is the shortest. In doing this the Magistrate must consider the child's right to have contact with both parents provided the contact is in the best interests of the child.
(See Section 68T of the Family Law Act.)
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Where a contact order is not consistent with an AVO
A Court can make a contact order that is inconsistent with the terms of an AVO. If this occurs, the contact order prevails and the AVO is invalid to the extent of the inconsistency.
The Court must then explain the reasons for making a contact order that is inconsistent with an AVO (although the failure to provide this explanation does not invalidate the contact order).
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