Family LawNewsThe impact of Family Violence Intervention Orders on Family Law Parenting Proceedings

At SLF Lawyers we are often asked about how family violence intervention orders impact spend time arrangements with children in families who are separated.

Parenting Orders

A Parenting Order are orders made about parenting arrangements of a child or children in the Federal Circuit and Family Court of Australia. Once made orders and binding and should be complied with by both parents.

Orders can be made by consent or by a Judge.

Parenting Orders will only be made where it is the best interest of the child to do so. The primary considerations in determining what is within the best interests of the child are as follows:

1. The benefit to the child of having a meaningful relationship with both parents; and
2. The need to protect the child from harm.

Protection from harm can include incidences of family violence. This is taken into account when assessing what is in the best interests of the child or children.

What is a Family Violence Intervention Order?

In Victoria, a Family Violence Intervention Orders is a court order to protect the affected family member and often the children from a family member who is alleged to have committed family violence.

Family Violence Intervention Orders are civil orders but have criminal penalties if breached.

An affected family member can apply or an intervention order themselves or the police can apply for an order on behalf of the affected family member/s. This order is obtained at the Magistrates Court and can include a large range of conditions to protect the affected family member from family violence.

A Family Violence Intervention Order may be:

1. Interim (until further order while the matter is being heard by the court); or
2. Final (for a prescribed period).

At court, the alleged perpetrator of family violence will be called the ‘Respondent’.

In states and territories other than Victoria, a Family Violence Protection Order can also be called a domestic violence order, protection order, family violence order or violence restraining order.

Common conditions of Family Violence Intervention Orders

The following conditions are common:

1. Contact- the respondent cannot approach the protected person or go near their house, workplace or school.
2. Communication- the respondent cannot communicate nor contact the protected person by any means.
3. Damage to property- the respondent cannot intentionally damage property of the protected person.
4. Family violence- the respondent cannot commit family violence.

A Family Violence Intervention Order may include a condition that is referred to as a ‘family law condition/exemption’. These conditions may provide the following:

1. Do anything that is permitted by the Family Law Act 1975 (Cth) (FLA) or a court order, a child protection order or a written agreement about child arrangements;
2. Negotiate child arrangements by letter, email or text message; and/or
3. Communicate with a protected person through a lawyer.

How will a Family Violence Intervention Order affect my family law proceedings?

The general rules

The FLA governs the interactions between family violence orders and FLA orders including parenting orders, recovery orders and other injunctions under the FLA.

In general, an order made under the FLA will prevail over inconsistent orders made under the family violence legislation.

Where a FLA order such as a parenting order exists prior to the making of a family violence order, State courts have the jurisdiction to revive, vary, suspend or discharge the existing family law orders when making family violence orders. The intention of this power is to enable courts to create consistency between family law orders and family violence orders and to take into account violence that occurs after a court makes a family law order.

Where a family violence order exists prior to the making of a FLA order such as a parenting order, the Federal Circuit and Family Court of Australia is permitted to make such an order even where it would be inconsistent with the family violence order. In this case, the court must ensure parties fully understand the nature and effect of the parenting order. Such an order will invalidate an existing family violence order to extent of the inconsistency

Practical implications where no Parenting Orders are in placed

If one parent obtains intervention orders which includes the children as affected family members, the parent who has obtained the order effectively controls the parenting arrangements.

If the affected family member does not agree that the respondent to a Family Violence Intervention Order may spend time with the children included in the Family Violence Intervention order, or time is significantly reduced, an urgent application would then be required to be filed with the court to seek parenting orders pertaining to the children.

The Federal Circuit and Family Court of Australia can then make a parenting order that is inconsistent with an existing Family Violence Intervention Order. The Family Violence Intervention Order will then be invalidated to the extent of the inconsistency and the court may make a declaration to that effect. For instance, a parenting order authorising the father to spend time with a child will invalidate the boundary conditions in an existing family violence order.

Due to the complexities of each individual matter, there is no one size fits all solution in respect to Family Violence Intervention Orders and spend time arrangements. Therefore, it is important to obtain legal advice to in relation to how Intervention Orders effect spend time arrangements.

If you require further legal advice or assistance in any legal matter, please contact our Family Law team.

Article written by Jane Carmel of our Melbourne office.