Introduction

15.1 Matters that raise issues of family violence form a significant part of the work of federal family courts and state and territory courts. Dealing with family violence has been described as ‘core business’ of the federal family courts,^[1] with more than half of the parenting cases that come to the family courts involving allegations of family violence.^[2] Proceedings for family violence protection orders also form a substantial part of the work of state and territory magistrates courts.

15.2 Family law and state and territory family violence legislation both deal with families at a time of crisis and change. Both laws seek to address family violence, but in different ways. Protection orders made under state and territory family violence legislation are aimed at providing immediate and future personal protection from family violence. Family law resolves disputes about separation—such as issues about parental responsibility and financial matters—which may arise in circumstances where family violence has arisen in the past and where a person fears family violence in the future.

15.3 As a consequence of this overlap, family law orders and protection orders may both regulate contact between family members. In some circumstances, family law and protection orders may also both deal with property of the parties. This means that there is potential for inconsistency and conflict between a protection order made by a state or territory court and orders made by a federal family court in relation to the same family.

15.4 For example, a protection order may specify that a person is not to communicate with, or come within a certain distance of, the person protected by the order. However, a parenting order made by a federal family court may require contact between separated parents for the purposes of facilitating arrangements for each parent to spend time with the children. Gaps in the protection of victims of family violence may arise because of the operation of the laws about which orders—state or federal—prevail, and uncertainty about the interoperation of the orders by those who must follow and enforce them.

15.5 Part D of this Report considers the interaction in practice of state and territory family violence laws with the Family Law Act 1975 (Cth). This chapter provides an overview of the powers and procedures of state and territory courts exercising jurisdiction under state and territory family violence legislation as well as the powers and procedures of federal family courts exercising jurisdiction under the Family Law Act.

15.6 In addition, this chapter sets out the key issues experienced by people affected by family violence who seek orders under state and territory family violence legislation and the Family Law Act. These issues—and options for reform to address them—are discussed in detail in the following chapters.