Section 68R of the Family Law Act

16.16 Section 68R is in pt VII div 11 of the Family Law Act, which deals with inconsistency between protection orders made under state and territory family violence legislation and Family Law Act orders that provide, require or authorise a person to spend time with a child.^[13] The purpose of this division is:

• to resolve inconsistencies between orders;

• to ensure that such orders do not expose people to family violence; and

• to achieve the objects and principles in s 60B of the Family Law Act, which relate to meeting the child’s best interests.^[14]

16.17 Section 68R addresses the situation where a victim of family violence seeks a protection order after a parenting order has been made and is seeking conditions in that protection order that would be inconsistent with the existing parenting order. Because conditions in a parenting order made under the Family Law Act will override any inconsistent conditions in a protection order,^[15] a protection order that is inconsistent with a parenting order may not provide effective protection for a victim of family violence, as the inconsistent conditions in the protection order are not binding and cannot be enforced. Section 68R provides a mechanism for state and territory courts to amend the parenting order to remove the inconsistency and ensure that the person is protected from violence.

16.18 Section 68R, and other provisions of div 11, were the subject of two previous reviews—one by Kearney McKenzie and Associates in 1998 (the Kearney McKenzie Report) and another by the Family Law Council in 2004 (the 2004 Family Law Council advice). The Kearney McKenzie Report commented on the importance of s 68R:

In the circumstances where [s 68R] is likely to be used, where contact or contact handover is an occasion of violence by one parent against another, it can be used to provide a circuit breaker in the violence. It gives the victim a breathing space from the violence. It does not have to be used to deny contact altogether; in appropriate cases, the variation might be new pick up and delivery arrangements.^[16]

Current use of s 68R

16.19 Previous reports and articles have commented on how rarely state and territory courts exercise their power to vary or suspend a parenting order under the Family Law Act to complement a protection order made in family violence proceedings.^[17] In this Inquiry, the Commissions sought views on whether state and territory courts, and legal practitioners working in these courts, remain hesitant to consider, or raise matters relevant to s 68R and, if so, the factors that contribute to the provision’s underuse.^[18]

Submissions and consultations

16.20 Many stakeholders considered that s 68R was an important provision and should be used more frequently to ensure that inconsistent orders do not place victims of family violence at risk of further violence during contact authorised by a parenting order.^[19] For example, the Australian Domestic and Family Violence Clearinghouse submitted that s 68R

provides enormous and underutilized potential for addressing many of the difficulties arising from the overlap of family violence laws and family laws, including access to evidence, inconsistent orders, exposure of children to danger/harm and its centrality to assessment of their ‘best interests’ [and] definitions of violence.^[20]

16.21 Submissions and consultations indicated that, while practice varies across jurisdictions, many state and territory magistrates courts remain reluctant to use s 68R of the Family Law Act. Stakeholders suggested several reasons for this.

16.22 The Local Court of New South Wales submitted that s 68R addresses a relatively uncommon situation, as it is rare for parties seeking a protection order also to be involved in prior or concurrent family law proceedings.^[21] Generally, an application for a protection order is made first, and family law proceedings may follow later.

16.23 In those matters where an application to make or vary a protection order is made when there is a parenting order in place, a number of stakeholders suggested that some magistrates and lawyers consider that parenting orders are a matter for a federal family court.^[22] As Women’s Legal Services Australia noted, ‘parenting orders are commonly treated as a fixed backdrop rather than something that could be changed to ensure the safety of the protected person’.^[23]

16.24 The Local Court of New South Wales and the Magistrates’ Court and the Children’s Court of Victoria suggested that a reason for the underuse of s 68R is that some magistrates may assume that they do not have the power to vary an order of a court of superior jurisdiction.^[24] The Law Society of NSW noted that, in NSW, magistrates and court staff do not specialise in family law, do not have access to services such as child dispute services or independent children’s lawyers and may not have the ‘time or resources’ to determine parenting matters.^[25] Women’s Legal Centre ACT agreed with this view, and considered that a parenting order which exposed a person to a risk of family violence should go back to a federal family court for consideration.^[26]

16.25 Other stakeholders expressed concerns about the practicality and fairness of using s 68R to amend a parenting order at the same time as making a protection order. Some submissions noted that magistrates may require more information or evidence (such as a copy of the parenting orders or a written application) and that notice should be given to the other party, and this may not be possible if a variation of a parenting order is sought ‘on the run’ in a busy court list.^[27]

16.26 Some submissions described situations in which applicants seeking a condition in a protection order in relation to children were required by the judicial officer to negotiate family law matters during an adjournment of the protection order proceedings. In addition, some stakeholders noted that courts have directed a police prosecutor to assist the applicant to negotiate parenting orders, which, in their view, was inappropriate.^[28] A number of legal service providers expressed the view that it may not be appropriate to ask people to negotiate parenting issues at the same time that they seek a protection order.^[29] In such cases there is often limited opportunity for parties to seek legal advice about family law matters on the same day that they apply for a protection order.^[30] Access to legal advice is complicated by the fact that some parties may have legal assistance to apply for a protection order, but may not have sought, or qualified for, legal aid in relation to a family law matter.^[31] Further, requiring parties to consider parenting matters on the day can put additional pressure on victims of family violence who are in court to seek protection from violence.

16.27 Some stakeholders noted that some applicants who seek to vary a parenting order fear that, by doing so, they will be perceived as ‘unfriendly parents’ or as misusing the legal system to frustrate children spending time with the other parent.^[32]

16.28 The Law Society of NSW expressed concerns about the possibility that a party who is dissatisfied with the outcome of federal family law proceedings will seek to use s 68R to revisit those orders.^[33]

16.29 Finally, many stakeholders agreed that a lack of experience and knowledge about s 68R and general family law on the part of magistrates courts, legal practitioners involved in protection order proceedings and police prosecutors contributed to the underuse of s 68R.^[34]

Commissions’ views

16.30 The reasons for the underuse of s 68R of the Family Law Act identified by stakeholders in this Inquiry reflect the reasons suggested in previous reports.^[35] In summary, the provisionis rarely used to revive, vary, discharge or suspend a parenting order because:

• judicial officers, lawyers, police and others involved in protection order proceedings may not be sufficiently aware of the existence, or understand the nature, of s 68R;

• some judicial officers, lawyers and police appear to consider that issues in relation to parenting orders should be a matter for federal family courts;

• judicial officers may not have the information or evidence necessary to amend a parenting order; and

• parties to proceedings may not have access to appropriate legal advice and other support before seeking to amend a parenting order.

16.31 The Commissions are of the view that increasing and improving the use of s 68R in state and territory magistrates courts is necessary to fill a gap in the protection of victims of family violence caused by the interaction between family law and state and territory family violence legislation. In particular, s 68R is necessary to protect victims of family violence where violence arises or escalates after parenting orders have been made—for example, during handover arrangements. In such cases, if s 68R is not used to amend the parenting order, a victim of violence may need to go to a federal family court to seek an amendment to the parenting order as well as a state or territory magistrates court to seek a protection order. In this way, state and territory family violence legislation and the Family Law Act are designed to be complementary, but do not appear to be operating in this way in practice.

16.32 Fostering the use of s 68R, improving understanding about the intersections between state and territory family violence legislation and the Family Law Act, and, as discussed below, allowing magistrates courts to make parenting orders when making or varying a protection order until further order, will allow one court to deal with a range of personal protection and family law matters that may arise when a victim of family violence seeks a protection order.^[36]

16.33 The Commissions note the concerns expressed by some stakeholders about whether state and territory magistrates courts are the appropriate forum for the consideration and amendment of family law orders. In order to close the gaps in protection and make court process as seamless as possible from the point of view of victims of family violence, the Commissions consider that fostering the exercise of family law jurisdiction by state and territory magistrates courts needs to be accompanied by a specialised family violence practice that transcends the current silos between protection orders and family law matters. Specialisation is discussed further below and in Chapter 32.

Fostering the use of s 68R

16.34 In the Consultation Paper, the Commissions proposed three measures to foster the use of s 68R by state and territory magistrates courts:

• amending state and territory family violence legislation to refer expressly to s 68R;^[37]

• including a question about parenting orders in application forms for protection orders under state and territory family violence legislation;^[38] and

• training and education of judicial officers.^[39]

16.35 Because training and education is integral to many of the recommendations made in this chapter, it is discussed separately later in this chapter.

Express reference to s 68R in state and territory legislation

16.36 Family violence legislation in Victoria and South Australia expressly refers to the court’s ability to revive, vary, discharge 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:

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).

16.37 Section 90 of the Family Violence Protection Act 2008 (Vic) goes further, and requires, where a protection order will be inconsistent with an existing Family Law Act order:

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.

16.38 In the Consultation Paper, the Commissions proposed that family violence legislation in each state and territory should refer to the powers under s 68R of the Family Law Act to revive, vary, discharge or suspend a parenting order to give effect to a family violence protection order. The Commissions expressed a preliminary view that the approach adopted in the South Australian legislation—which refers to the powers under s 68R of the Family Law Act—would be sufficient to increase the visibility and awareness of s 68R. However, the Commissions also asked whether courts should be required to use s 68R to revive, vary, discharge or suspend an inconsistent Family Law Act order, as is the case in Victoria.^[40]

Submissions and consultations

16.39 Most submissions received in response to this proposal agreed that state and territory family violence legislation should expressly refer to s 68R. However, views differed about the form such a provision should take.

16.40 Most stakeholders preferred the Victorian model.^[41] Some did so on the basis that the requirement to act would be more effective in raising awareness and facilitating the use of s 68R.^[42] For example, Women’s Legal Services NSW preferred this option

as it places a stronger obligation on the courts, requiring them to exercise their powers, than the wording of section 68R in which courts ‘may’ amend existing orders. In circumstances where a protection order has been made creating a conflict with an existing parenting order, it is essential that magistrates turn their minds to whether or not there needs to be a change to the parenting orders.^[43]

16.41 Other stakeholders submitted that state and territory legislation should refer to the powers under s 68R of the Family Law Act, but not mandate its use.^[44] For example, the Queensland Law Society submitted that a magistrate ought to be required to consider whether s 68R of the Family Law Act applies as part of a ‘checklist’ before making a protection order.^[45] Other submissions expressed concerns about requiring a magistrates court to exercise its powers under s 68R whenever there is an inconsistency. In particular, the Chief Justice of the Family Court and the Chief Federal Magistrate commented that:

A court making a family violence order may not have sufficient information to be confident about dealing with the parenting order and the matter should therefore remain discretionary.^[46]

16.42 The Law Society of NSW submitted that, in its view, requiring state courts to use s 68R would be inappropriate in cases where the protection order proceedings are brought because one party is dissatisfied with the family law orders. It preferred an approach where the use of s 68R was left to the discretion of the judicial officer based on the circumstances of each case:

State Courts may not have the time or resources to determine issues regarding the variation or suspension of parenting orders, particularly in cases where the Federal Family Law Courts have made a determination, following hearing of evidence in the matter which may include a Family Report and where the Federal Family Law Courts may have had the benefit of an Independent Children’s Lawyer who was appointed to the case to represent the interests of the children separately.^[47]

Commissions’ views

16.43 The Commissions are of the view that an express reference to the powers under s 68R in the family violence legislation in each state and territory will increase awareness of the provision among judicial officers, police prosecutors and legal practitioners involved in protection order proceedings.

16.44 The Commissions recommend that state and territory family violence legislation should require a judicial officer to consider whether s 68R should be used to ensure that an existing parenting order that is inconsistent with new conditions in a protection order does not compromise the protection of a victim of family violence. The requirement to consider the use of s 68R will mean that a judicial officer retains the discretion to resolve inconsistencies in a way that is appropriate in each case.

16.45 While the Commissions note the concerns of some stakeholders about the potential misuse of s 68R by a party dissatisfied with the outcome of family law proceedings, there is little evidence to support that this is in fact the case. The Commissions consider that s 68R and state and territory family violence legislation contain sufficient safeguards to allow courts to deal with unmeritorious applications. A judicial officer making or varying a protection order under state or territory family violence legislation must be satisfied on the evidence that the order is necessary or desirable to protect the person from family violence. Further, s 68R requires that a judicial officer may only revive, vary, discharge or suspend a parenting order if the court has before it material that was not before the court that made the original order.^[48]

Application forms

16.46 Another practical way to increase the awareness and use of s 68R of the Family Law Act is to include a question regarding current parenting orders in application forms for protection orders in each state and territory. For example, the Information for Application for an Intervention Order form, used in Victoria, asks applicants to check a box if they would like a Family Law Act order to be revived, varied or suspended.^[49]

16.47 In the Consultation Paper, the Commissions proposed that application forms for protection orders under state and territory family violence legislation should include a clear option for an applicant to request the court to revive, vary, discharge or suspend a parenting order.^[50]

Submissions and consultations

16.48 The majority of stakeholders who responded to this proposal supported it.^[51] Women’s Legal Services NSW commented that:

this would be a simple amendment that could provide protection order applicants with a clear opportunity to raise the necessity of change to a current parenting order, which they would otherwise have thought was not possible.^[52]

16.49 The Australian Domestic and Family Violence Clearinghouse submitted that clear options on forms would facilitate awareness amongst police, lawyers and judicial officers as well as clients.^[53] The Queensland Commission for Children submitted that this would be a ‘helpful prompt for parties and the court in protection order matters to consider the safety implications for existing parenting orders’.^[54]

16.50 The Magistrates’ Court Victoria agreed with the proposal, but noted that, in its experience in Victoria, the option on the form does not appear to be used regularly. The Court suggested that this may be because applicants do not understand what it means in the absence of legal advice.^[55] In this regard, the Aboriginal Family Violence Prevention and Legal Service Victoria supported the proposal, but submitted that the form could also include a brief explanation to assist applicants.^[56]

16.51 Women’s Legal Service NSW drew attention to the fact that many protection order proceedings are initiated by police. It recommended that police be directed to obtain information from the protected person about whether to seek a variation to a current parenting order.^[57]

16.52 Two submissions did not support this proposal. The Law Society of NSW considered that including such an option on an application form was not appropriate, as a variation could be sought when the matter was before the court. The Women’s Legal Centre ACT submitted that, in the ACT, it would be more appropriate for an inconsistent parenting order to be referred to a federal family court.^[58]

Commissions’ views

16.53 In Chapter 30, the Commissions recommend that application forms for protection orders in all states and territories should clearly seek information about existing parenting orders or pending proceedings for such orders.^[59] Further, the Commissions also recommend that state and territory courts dealing with family violence matters and child protection matters should have access to the Commonwealth Courts Portal used by federal family courts to ensure that they have reliable and timely access to information about existing parenting orders and pending proceedings for such orders.^[60]

16.54 In addition, the Commissions consider that application forms for protection orders under state and territory family violence legislation should include an option for applicants to request the court to revive, vary, discharge or suspend a parenting order. Later in this chapter, the Commissions recommend that state and territory courts, when making or varying a family violence protection order, should be able to make a parenting order. This option should also be noted in the application forms. Expressly including this option in application forms would go some way to increasing awareness and use of s 68R by bringing the issue to the attention of the court, lawyers and parties.

16.55 The Commissions note the comments from the Victorian Magistrates Court that this option in the application form in Victoria is not often used, and also the concerns discussed in Chapter 30 about over-reliance on self-disclosure by applicants for protection orders. Application forms for protection orders are often completed urgently and at a time of great stress. Applicants may also not have the benefit of legal advice or assistance. As such, applicants may not understand why parenting orders are relevant to their application for a protection order, or may be confused about whether a parenting order needs to be amended in addition to seeking a protection order. State and territory courts could also develop plain language information pamphlets or other resources to support awareness and use of this option.

16.56 In Chapter 30, the Commissions recommend placing an obligation on judicial officers making protection orders to inquire about the existence of other orders, including family law orders. In these circumstances, while applicants, including police, should be encouraged to consider whether a s 68R variation is necessary, the obligation should be on the court to inquire about the terms of any parenting order. This is consistent with s 68R(2), which permits the court to amend a parenting order either by application or on a court’s own motion.

Enabling state and territory courts to make parenting orders

16.57 Before 2006, s 68R of the Family Law Act permitted state and territory courts, when making or varying a protection order, to make a parenting order, in addition to their ability to revive, vary, suspend or discharge a parenting order. This aspect of s 68R was repealed by the Family Law Amendment (Shared Parenting) Act 2006 (Cth).

16.58 The removal of the power to make parenting orders when making or varying a protection order was recommended in the 1998 Kearney McKenzie Report and the 2004 Family Law Council advice.^[61] The Kearney McKenzie Report argued that the focus of s 68R should be limited to resolving inconsistencies between protection orders and existing parenting orders:

If there is no contact order there is no inconsistency and there is no need to do anything. Depending on its terms, a family violence order may have the effect of denying contact for a time. If so, the violent parent can apply to the Family Court. It should not be possible for either party to use family violence proceedings to get a contact order.^[62]

16.59 In addition, the Kearney McKenzie Report considered that state and territory magistrates courts, at that time, did not have the time or resources to make parenting orders:

In family violence proceedings the focus should be on protecting the woman and her children … The focus of s [68R] should be on resolving inconsistencies between family violence orders and existing [family law] orders. In cases where there is family violence making an appropriate contact order is always going to be difficult and magistrates have neither the time or resources to do so.^[63]

16.60 The Family Law Council agreed with these arguments and also recommended that there should be no power for a state or territory court to make a parenting order as part of protection order proceedings.^[64]

16.61 The Consultation Paper noted that some stakeholders expressed the view that the power to make parenting orders during protection order proceedings should be reinstated, on the basis that it enables state and territory courts to deal comprehensively with protection order proceedings involving children. The Commissions asked whether s 68R of the Family Law Act should be amended to allow state and territory courts to make parenting orders, in addition to their ability to revive, vary, discharge or suspend such orders.^[65]

Submissions and consultations

16.62 There was some support for reinstating the power for state and territory magistrates courts to make parenting orders during protection order proceedings.^[66] Some stakeholders considered that this would allow victims of family violence who have children to resolve their family violence protection orders and parenting arrangements in one court.^[67] National Legal Aid expressed the view that while it is preferable for a specialist family court to make parenting orders,

state and territory courts should have the power to make parenting orders in those circumstances in which they can revive, vary, discharge or suspend such orders, where there are situations of urgency and so the matters of people living in regional and remote areas can be readily addressed. The power should be in relation to interim orders only. These powers should be supported by specialist training in family law for state and territory judicial officers. This specialist training is essential. The situation should be monitored and appropriate resourcing allocated.^[68]

16.63 The Magistrates’ Court Victoria noted that, prior to the amendments in 2006, it was more common for magistrates to make a new parenting order, than to discharge, vary or suspend an existing parenting order, because applications for protection orders are often made before family law proceedings are commenced.^[69]

16.64 Women’s Legal Services NSW submitted that the current operation of s 68R leads to inconsistency in the options available to parties, depending on whether or not they have a parenting order in place:

We note that the provisions in section 68R are expressed widely enough that the local courts can entirely discharge the existing orders replacing them with wholly new orders if considered necessary. This means that there is a clear inconsistency between people with current parenting orders who could have new orders made by the local court during the course of proceedings for protection orders, while people without existing orders must use the family law courts (unless both parties consent).^[70]

16.65 Some stakeholders who supported an amendment to allow magistrates courts to make parenting orders in protection order proceedings noted that magistrates would require appropriate training in making parenting orders as well as additional funding and resources.^[71]

16.66 A number of stakeholders opposed extending s 68R to allow state and territory magistrates courts to make parenting orders. Some agreed with the recommendations of the Kearney Mackenzie Report and the 2004 Family Law Council advice and submitted that magistrates courts were not the appropriate forum for making parenting orders.^[72] Others considered that some magistrates courts do not have the time, resources or expertise to make parenting orders.^[73] The Department of Premier and Cabinet (Tas) submitted that this meant that a re-introduced power for state courts to make parenting orders is unlikely to be used in Tasmania.^[74]

Commissions’ views

16.67 As state and territory magistrates courts are often the first point of contact with the legal system for separating families who have experienced family violence, the Commissions consider that it is important that state and territory magistrates courts can deal with as many issues relating to the protection of victims of family violence as possible.

16.68 In Chapter 3, the Commissions set out a framework for reform of the jurisdiction of courts that deal with issues of family violence. The Commissions consider that, while the prospect of a single specialist court to deal with all legal matters relating to family violence is not practicable, an effective way to achieve the benefits of ‘one court’ is to develop corresponding jurisdictions, in which the jurisdictions of courts dealing with family violence correspond to an appropriate degree.

16.69 The Commissions consider that state and territory courts, when making or varying a protection order, should also be able to make parenting orders ‘until further order’—a reinstatement of the jurisdiction under the Family Law Act that was removed from state and territory courts in 2006. Making an interim parenting order at this time may take the heat out of the situation by regulating how separating parents spend time and communicate with their children. For example, while a protection order may include conditions to protect a person from violence or harassment, a parenting order may prescribe handover arrangements to minimise contact between the parents.

16.70 The Commissions recommend that a parenting order made in these circumstances should last ‘until further order’. This means that a party who disagrees with the order may seek amendments from a federal family court, or from a state or territory court with jurisdiction under the Family Law Act by using s 69N. Once this kind of application is made, the provisions of the Family Law Act that require parties to attend counselling would take effect. In appropriate cases, a judicial officer making a parenting order during protection order proceedings could also make orders to facilitate transfer to a family court, for example by making orders about family counselling or appointing an independent children’s lawyer.

16.71 One reason for the recommendations in the Kearney McKenzie Report and the 2004 Family Law Council advice to repeal the power of state and territory courts to make parenting orders was the view that magistrates courts, at the time of those reports, had limited time and resources to perform this role. The Commissions acknowledge the force of the practical concerns reflected in submissions to this Inquiry. The recommendations made in this Report are put forward as part of a package, and the goal of ensuring that legal systems that deal with issues of family violence are as accessible and seamless as possible, requires changes to the jurisdiction as well as the practices of state and territory courts to be implemented together. In particular, the Commissions consider that developing and extending specialised practices in family violence in state and territory courts is an important way to foster the expertise and focus the resources of courts, judicial officers and legal practitioners. The importance of specialisation in the exercise of family law jurisdiction by state and territory magistrates courts is discussed below, while the benefits of specialised practice are set out in Chapter 32.

16.72 The Commissions also acknowledge concerns expressed about the need to ensure that parties have access to timely and appropriate legal advice, including about family law, before a state or territory court amends a parenting order. While specialised practices such as a dedicated family violence list, may provide a better opportunity for qualified lawyers to be present when protection orders and parenting orders are dealt with by the court, the broader issue of increasing access to legal aid is outside the terms of reference for this Inquiry.^[75]

Relevant considerations when making or varying a parenting order

Different considerations in different contexts

16.73 When reviving, varying, discharging or suspending a parenting order using s 68R of the Family Law Act, the state or territory court must:

• have regard to the purposes of the division (which are set out above and include resolving inconsistencies between orders, ensuring that orders do not expose people to family violence and achieving the objects and principles in s 60B of the Family Law Act, which relate to meeting the child’s best interests);

• consider whether contact with both parents is in the best interests of the child; and

• if varying, discharging or suspending a parenting order that, when made, was inconsistent with a protection order, be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order.^[76]

16.74 Section 60CA of the Family Law Act requires a court making a parenting order under div 10 of pt VII to have regard to the best interests of the child as the paramount consideration.^[77] However, when using s 68R to revive, vary, suspend or discharge a parenting order, the Family Law Act states that any provisions such as s 60CA that would otherwise make the best interests of the child the paramount consideration do not apply.^[78]

16.75 As the Family Law Council, in its 2004 advice, explained,

Division 11 deals with situations in which contact orders are being considered in circumstances in which family violence orders are in existence or are about to be made. Section [68S] makes it clear that, in such situations, while the court must have regard to the best interests of a child, such interests are not the paramount consideration. The case for not applying the paramountcy principle in such cases is that a child’s best interests must give way to the right of other family members to be protected from violence or the threat of violence.^[79]

16.76 As noted by the Family Law Council, this means that there is an inconsistency between parenting orders made using div 10 in which the best interests of the child are the paramount consideration, and parenting orders varied using s 68R, in which the child’s best interests are not the paramount consideration. Where a parenting order is made using div 10, s 60CG(1) of the Family Law Act requires the court to ensure that a parenting order is consistent with a protection order and does not expose a person to an unacceptable risk of family violence, but only ‘to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration’. In order to ensure that a parenting order does not expose a person to a risk of family violence, the court can include any safeguards that it considers necessary for the safety of persons affected by the order.^[80]

Lack of clarity

16.77 In addition to this inconsistency, the provisions of the Family Law Act seem unclear about the principles that apply when a state or territory court varies a parenting order using s 68R. In particular, there is uncertainty about whether the protection of family members from family violence should take priority over a child’s interest in spending time with both parents.

16.78 In 2004, the Family Law Council recommended that the Family Law Act should clarify the considerations relevant to a decision to vary a parenting order according to s 68R so that:

In exercising its powers under this section, a court must have regard to 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.^[81]

16.79 This recommendation has not been implemented.

The broader issue: how to determine what is in a child’s best interests?

16.80 The issue of which considerations are relevant when deciding what parenting orders to make, and the weight to be given to each consideration, has been the subject of several other reviews and reports.

16.81 Miranda Kaye and colleagues suggested that the Family Law Act could be amended to include a presumption that, once the court has made a finding of violence, it should not make an order giving residence or unsupervised contact to a party who has used violence against a child or other family member unless it is satisfied that the child will be safe.^[82] This is the approach taken in New Zealand.^[83]

16.82 The Family Courts Violence Review, undertaken by Professor Richard Chisholm (the Chisholm Review),^[84] considered the legislative provisions that govern how a family court determines what parenting arrangements are in a child’s best interests. The Review considered that the current test for determining the best interests of a child was problematic.

16.83 First, the Chisholm Review considered that the stipulation of two inherently juxtaposed primary considerations, in which parental involvement is balanced with protection from violence and abuse is ‘not an ideal guide to children’s best interests’.^[85] While violence and abuse are serious matters, they are not the only issues that need to be considered in parenting cases.

16.84 Secondly, the Chisholm Review outlined the problems with any legislative approach to the best interests of the child that singles out a particular outcome for special mention—such as each parent spending equal time with the child, or no contact with the child in cases of violence. Instead, the Review emphasised that the court should consider the arrangements which would be best for the child in each case, rather than starting with an assumption that a particular outcome is likely to be best in a particular category of case.^[86]

16.85 The Chisholm Review recommended that the Family Law Act should list the factors that a court must take into account when considering what parenting orders to make. The factors recommended in the review do not expressly include family violence. Rather, they would require a court to consider a child’s ‘safety, welfare and wellbeing’, which would encompass family violence as well as other matters that might threaten a child’s safety, welfare or wellbeing, such as a parent’s mental illness or history of substance abuse.

Submissions and consultations

16.86 In the Consultation Paper, the Commissions noted the recommendation in the 2004 Family Law Council advice and asked whether the Family Law Act should 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.^[87]

16.87 Many submissions supported this proposal on the basis that it would clarify that the protection of family members from the threat of violence has priority over the interests of the child in spending time with both parents.^[88]

16.88 A number of stakeholders also considered that this priority should apply to all parenting orders, not just those made under s 68R.^[89] A confidential submission commented that the Family Law Act needs to

prioritise the safety of people, particularly children, over relationships with the violent parent. Where a relationship is sought, and research suggests that it is sensible to create these relationships with both parents, such relationships should only be encouraged where it can be guaranteed that the child will be safe and protected. The court should not make orders based on the concept of a right to know a parent, prioritized over the right to be safe.^[90]

16.89 A number of stakeholders commented that the issue about relevant considerations when varying a parenting order under s 68R is just one aspect of a larger issue about the relationship between the two ‘primary considerations’ for determining a child’s best interests, that is:

• the benefit to the child of having a meaningful relationship with both parents; and

• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.^[91]

16.90 The Australian Domestic and Family Violence Clearinghouse noted that:

Conflict between these two considerations in determining ‘best interests’ is at the heart of most difficulties that arise in relation to the application of the Family Law Act to situations of domestic violence. Notwithstanding the recent investigations of this issue by Professor Chisholm and the Family Law Council, it is the view of the Clearinghouse that a false dichotomy has arisen. The Clearinghouse would argue that there is strong evidence documenting the harms which children exposed to violence endure. This suggests that contact with a perpetrator of violence can never be in their ‘best interests’, and in particular, that shared time of any sort in a relationship where abuse and control characterise the dynamics of one party to another is not possible without the exposure of children to the additional harm of ongoing stress and damage.^[92]

16.91 Similarly, in a joint submission, Domestic Violence Victoria and others drew attention to the primary considerations for determining a child’s best interests and expressed concern that:

the Act, in its enthusiasm for shared parenting, often leads to contact orders which are inconsistent with expert knowledge about child development, and where family violence is present, put children’s rights to safety second. In effect, the Act now emphasizes the first principle of meaningful involvement at the expense of children’s and women’s right to safety. The framing of these criteria takes the focus away from the best interests of the child, and places the emphasis on parental rights.^[93]

16.92 Women’s Legal Service NSW submitted that in parenting proceedings involving family violence there is a direct conflict between the question of division of time and the risk of harm, and expressed serious concerns that, in its experience, current court practice is to resolve the conflict in favour of prioritising time over considerations relating to risk of harm.^[94]

16.93 Other submissions expressed the view that the Family Law Act should not be amended to direct state and territory courts varying parenting orders to give priority to the protection of family members from violence over a child’s interest in having contact with both parents. The Queensland Law Society and Law Council of Australia suggested that this consideration was more appropriate when making protection orders, not parenting orders.^[95]

16.94 In their submission, the Chief Justice of the Family Court and the Chief Federal Magistrate considered that the best interests of the child should be the paramount consideration when making parenting orders. They submitted that the proposed amendment would ‘result in a bifurcated process with violence issues being separated out from every other issue otherwise required to be considered in determining the best interests of the child’ and emphasised the importance of providing a nuanced response to all of the relevant issues and factors in a child’s life. The Commissioner for Children Tasmania agreed that courts making parenting orders should consider a range of interests and options.^[96]

16.95 National Legal Aid submitted that a legislative amendment of this kind was unnecessary as ‘appropriate education [and] training to people working in the family law, family violence, and child protection systems should overcome the concern that this proposed amendment is intended to address’.^[97]

Commissions’ views

16.96 The Family Law Act provides that, when deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration.^[98] However, the Family Law Act specifies two different tests for making or varying a parenting order where there is a risk of family violence. When a state or territory court uses s 68R to vary a parenting order, the best interests of the child are not the paramount consideration—rather, the safety of the person and any children from family violence is paramount. When a federal family court makes or varies a parenting order using div 10 of the Family Law Act, the court must ensure that an order does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.

16.97 The Commissions are of the view that the considerations relevant to making or varying a parenting order should be the same, regardless of whether the parenting order is made or varied using the provisions of s 68R of the Family Law Act or the provisions in div 10 of the Family Law Act. Identical factual circumstances—in which parenting orders place a person at risk of family violence—should not lead potentially to different outcomes depending on the forum used to make or amend the parenting orders to resolve that issue. Having consistent tests would also allay the concern, expressed in some submissions, that parties who are dissatisfied with parenting orders made by a federal family court, can use s 68R to seek a different outcome.

16.98 Where the person at risk of family violence is a child, the parenting orders should properly take the child’s best interests as the paramount consideration. The court making a parenting order must consider, as a primary consideration, the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.^[99] Depending on the risk of family violence, a court may order ‘no contact’—that the parent who has used family violence is not to spend time or communicate with the child—or order that the parent be supervised while spending time with the child. A court may consider that a ‘no contact’ order is in a child’s best interests where the child has been exposed to family violence directed at other family members.

16.99 However, where a court determines, having regard to all the relevant considerations, that it is in the best interests of the child to spend time or to communicate with a parent who has used, or threatened to use, family violence against a family member other than the child, the paramountcy of the best interests of the child may become problematic. In such cases, the ‘paramount’ consideration of the best interests of the child can be applied to displace, or outrank, the safety of other family members from family violence. Where a parenting order, made in the best interests of the child, has the potential to expose another person to the risk of family violence, the best interests of the child are arguably met at the expense of the safety of other family members.

16.100 In such cases, a court has a number of options, including making orders that handover occur at a safe place or be supervised.^[100] While making orders to ensure another person’s safety may also be in the best interests of the child, the Commissions consider that a court should make such orders on the basis of the need to protect the person from family violence and not only where this coincides with the child’s bests interests. The safety of other family members from family violence should be a consideration in its own right.

16.101 The Commissions are of the view that parenting orders should not operate to place a person at risk of family violence. To make orders of this kind is to privilege the best interests of the child over a parent’s protection from family violence. The Commissions consider that the Family Law Act should recognise the interest of all parties to be protected from family violence.

16.102 In taking this approach, the Commissions do not recommend amendments to the mandatory considerations for determining what orders are in the child’s best interests. The Commissions share the concerns outlined in the Chisholm Review about the dangers of prescribing in legislation particular outcomes that are presumed to be in the best interests of the child. The Commissions agree with the Chisholm Review that a court making a parenting order should consider the arrangements which would be best for the child, in the context of each particular case.

16.103 When applying s 60CG of the Family Law Act the court should ensure that parenting orders do not operate to place a person at risk of family violence and make such amendments to the order as are necessary to ensure that the person is protected from an unacceptable risk of family violence. When considering these amendments, the court should consider what is necessary for the safety of those affected by the order and the best interests of the child should not be the paramount consideration.

16.104 This test should be the same, regardless of whether the parenting order is made using the provisions of div 10 of the Family Law Act; revived, varied, suspended or discharged by a state or territory court under s 68R; or made during proceedings to make or vary a protection order under state or territory family violence legislation in circumstances set out in Recommendation 16–3.

Duration of parenting orders amended in protection order proceedings

16.105 Section 68R operates differently depending on whether a parenting order is amended by a state or territory court during proceedings for an interim protection order or for a final protection order. When a parenting order is revived, varied or suspended under s 68R in proceedings to make or vary an interim protection order, s 68T provides that the parenting order only has effect for the period of the interim protection order or 21 days from the date of the order, whichever is earlier.^[101] No appeal lies in relation to the revival, variation or suspension of a parenting order in proceedings for interim protection orders.^[102] In contrast, the Family Law Act does not place a time limit on parenting orders revived, varied, discharged or suspended in proceedings to make or vary a final protection order.

16.106 In all states and territories, a hearing for an interim protection order often occurs in the absence of the respondent and without notifying the respondent.^[103] In such cases, each party will have the opportunity to be heard before the court makes a final protection order. The purpose of s 68T, outlined in the Explanatory Memorandum to the Family Law Amendment (Shared Parenting) Bill 2005, is to provide immediate protection for a victim of family violence, but also to ensure that ‘any changes to family law orders are dealt with in a short period and with due process’.^[104] The Explanatory Memorandum stated that the 21 day period would provide parties with an opportunity to make an application to amend the family law orders.

16.107 Previous reviews have identified that the 21 day period to seek orders from a court exercising family law jurisdiction is not practical and does not take account of the workload of federal family courts and delays in listing parenting matters for hearing.^[105]

16.108 The Kearney McKenzie Report considered that a magistrate should have power to make the variation for a period that is long enough to enable the parties to go to a federal family court, and recommended the legislation specify a period of 90 days. The Report acknowledged that this was a long time to bind a person to an order that could not be appealed.^[106] The Family Law Council did not agree with this recommendation, on the basis that 90 days was too long a period to bind a person to orders which could not be appealed, and which could potentially prevent a parent from spending time with his or her child.^[107]

16.109 In the Consultation Paper, the Commissions asked whether there were practical difficulties associated with obtaining new orders from a court exercising family law jurisdiction within 21 days, and if so, what would be an appropriate time in which such orders could be obtained.^[108]

16.110 The Consultation Paper also noted a comment by the Family Law Council that it would be unlikely that a court would judge a person to be in breach of a parenting order because the parent withheld contact beyond the 21 day period while an application to vary or discharge was awaiting hearing.^[109] The Commissions asked whether this policy should be reflected in the legislation by amending the Family Law Act to include a defence to a breach of a parenting order in such circumstances.^[110]

Submissions and consultations

16.111 Nearly all stakeholders who responded to these questions agreed that 21 days was an insufficient time to obtain new orders from a federal family court. A number of reasons were given, including the time needed to arrange legal aid or other legal advice and the time required to organise evidence and make and serve an application.^[111]

16.112 A number of submissions noted that the time between making an application and the date for a court hearing in the Family Court or Federal Magistrates Court varied depending on the registry and the availability of a judicial officer.^[112] For this reason, stakeholders did not agree on what would be a realistic timeframe to obtain new orders from a federal family court. Some stakeholders considered that the 90 day period recommended in the Kearney McKenzie Report would be realistic.^[113] Others suggested that 40 or 45 days may be appropriate.^[114] NSW Legal Aid suggested that 16 weeks (120 days) reflected the reality of court availability.^[115]

16.113 One effect of this disjunction between the terms of s 68T and the realities of legal practice is the potential to expose a victim of family violence to a threat of further violence. The joint submission from Domestic Violence Victoria and others noted that:

Delays in the family court system beyond the control of the client should not in any circumstances lead to further victimisation of that client, and importantly, should never allow a child to be placed in danger because of that delay.^[116]

16.114 Some stakeholders identified the 21 day limit on the operation of parenting orders varied or suspended during proceedings for interim protection orders as one factor contributing to reluctance to use s 68R.^[117]

16.115 Stakeholders expressed differing views on how best to resolve this issue. Some stakeholders agreed with the Kearney McKenzie Report that the period of time in s 68T should be extended to 90 days.^[118] Others submitted that, rather than extend the time period, courts exercising family law jurisdiction should be adequately resourced to consider the matter within the 21 days currently stipulated.^[119] For example, Women’s Legal Service NSW submitted that:

the current timeframe is an appropriate limit on how long a matter involving domestic violence should wait before receiving a first court date, and submit that the family courts should be sufficiently resourced to allow the timeframe to be met.^[120]

16.116 Other stakeholders supported the idea that there should 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.^[121]

16.117 However, a number of stakeholders drew attention to s 70NAE(5) of the Family Law Act, which provides that a person has a reasonable excuse for contravening a parenting order if they believed, on reasonable grounds, that not allowing the child to spend time with the other parent was necessary to protect the health or safety of a person.^[122]

16.118 The Chief Justice of the Family Court and the Chief Federal Magistrate submitted that this defence works well because it can be adapted to different circumstances:

If a more specific defence was introduced, a situation might arise in which, for various reasons, a long delay occurs between the making of the protection order and the hearing of an application for variation of a parenting order. The specific defence would mean there would be no consequences for failing to make the child available, regardless of whether or not it was reasonably necessary to protect the health or safety of a person. If the withholding was genuinely necessary to protect the health or safety for person there will be no breach found.^[123]

16.119 Some stakeholders considered that this defence was adequate and should be retained without amendment.^[124] The Department of Premier and Cabinet (Tas) noted that, in practice, the 21 day limit is rarely a problem, perhaps because ‘it is recognised that it is reasonable for a person to fail to comply with orders if to comply with them would be putting the person at risk’.^[125] Others thought that there may be merit in particularising the situation arising under s 68T as part of the defence.^[126] The Magistrates’ Court Victoria expressed concerns about ‘a legislative approach that sanctions a breach of a court’s own order’.^[127]

16.120 Finally, the Magistrates’ Court Victoria identified a further limitation to the effectiveness of s 68T of the Family Law Act:

In Victoria, interim orders are made until further order of the court. This means that a section 68R order is made once at the interim stage and cannot be made again because there is no mechanism for remaking it.^[128]

16.121 While there is no barrier to a magistrates court extending the period for a further 21 days when making another interim protection order (providing the other conditions of s 68R are met), if a magistrates court makes an interim order ‘until further order’ it does not need to periodically make new interim orders.

Commissions’ views

16.122 In the Commissions’ view, the policy objective of s 68T is to ensure that parenting orders revived, varied or suspended in proceedings when an interim protection order is made, have effect for a short period of time so that parties have an opportunity to apply to amend the orders, provide further evidence and be heard before a final parenting order is made. However, the Commissions consider that s 68T, by setting an arbitrary and impracticable time limit on the duration of the parenting orders, does not facilitate this policy objective and is at odds with the policy objectives underpinning the Commissions’ recommendations in this Report.^[129] Rather than ensuring that parties have an opportunity to be heard, the 21 day time limit means that the amended parenting order expires before the matter is listed before a court.

16.123 Further, the 21 day time limit on parenting orders varied during proceedings for an interim protection order has the potential to expose a victim of family violence to the risk of further violence as the time limit expires and the parenting order reverts to the conditions that placed the victim at risk 21 days earlier. The provision also means that victims of violence are required to engage with two different courts in order to obtain effective protection from family violence.

16.124 Earlier in this chapter, the Commissions recommend that the Family Law Act should be amended to allow state and territory courts, when making or varying a family violence protection order, to also make a parenting order. The Commissions recommend that parenting orders made in these circumstances would operate ‘until further order’.

16.125 In relation to s 68T, the Commissions also consider that parenting orders revived, varied or suspended during proceedings for an interim protection order should have effect until a date specified by the court, until the interim protection order expires or ‘until further order’. This means that the judicial officer can manage the case by setting timeframes on both interim protection orders and parenting orders, by notifying the respondent of the order and relisting matters so that parties have an opportunity to obtain legal advice. If necessary, the respondent can challenge the terms of the new parenting order at the next or later hearing of the protection order proceeding.

16.126 Alternatively, the respondent may choose to challenge the new parenting order in a federal family court or make a family law application in the state or territory magistrates court. If the parenting order has been made until further order, the order will operate until the federal family court amends or makes a new parenting order to take account of the changed circumstances. In addition to improved information sharing between state and territory courts and federal family courts, to avoid duplication and inconsistency, the Commissions consider that it would be beneficial if matters in which a parenting order has been made, revived, varied or suspended during proceedings for an interim protection order are given priority in federal family courts. In such cases, family violence is clearly an issue in the proceedings and should be resolved urgently.

16.127 The Commissions consider that, if s 68T is amended to allow parenting orders amended in proceedings for an interim protection order to operate until further order, there is no need for a defence to a breach of a parenting order where a parent withholds contact beyond the 21 day period while an application to vary or discharge is awaiting hearing. The Commissions are of the view that legislation should not sanction a breach of a court’s order—rather the order should be made in such terms that it is possible to comply with. Section 70NAE(5) of the Family Law Act, which provides that a person has a reasonable excuse for contravening a parenting order if they believed, on reasonable grounds that not allowing the child to spend time with the other parent was necessary to protect the health or safety of a person, is a sufficient safeguard.