Protection orders and children—the current legal framework

20.106 In practice, family violence protection orders for the protection of children are usually obtained in a magistrates court. Most commonly, children are named as protected persons on applications for family violence orders made to protect a parent, although they may also be sought directly in the child’s own right. In some jurisdictions, family violence protection orders may also be obtained in children’s courts in particular circumstances. These powers are considered below.

Magistrates courts

20.107 Under state and territory family violence legislation, family violence protection orders made in favour of an adult can, and often do, name children or young people as a protected person where they are affected by the same or similar circumstances.^[123] In Victoria, for example, a court may, on application or on its own initiative, include the child as a protected person in a family violence intervention order —where the child’s need for protection is substantially the same as that of the affected family member—or make a separate final family violence intervention order for the child as a protected person.^[124] In NSW, the court must also name the protected person’s children where they are living with the person and exposed to the family violence.^[125]

20.108 In most states and territories, applications for a family violence protection order can also be brought by, or on behalf of, a child or young person in their own right.^[126] An application may be brought by a police officer,^[127] a parent or any other person with the consent of the parent.^[128] This may include a child protection caseworker.^[129] However, in NSW, only a police officer may make an application for an apprehended violence order where the person to be protected is a child aged under 16 years.^[130] In Tasmania, a copy of an application for a family violence protection order that is brought by, or on behalf of a child, must be given to the Secretary of the government agency responsible for administering the state’s child protection legislation.^[131]

20.109 In the Northern Territory, applications for a family violence protection order for the protection of a child must be brought by the police or a child welfare officer where the health and wellbeing of a child is at risk because of domestic violence.^[132]

20.110 In NSW, a police officer investigating a family violence matter must apply for a protection order if he or she suspects that a family violence offence or a child abuse-related offence has been or is likely to be committed against the person for whose protection the order would be made.^[133] Furthermore, where the person who needs protection is a child under 16 years, only a police officer may apply for a family violence protection order,^[134] or for a variation or revocation of an existing apprehended violence order.^[135] These measures are intended to ensure that the child’s best interests are prioritised above the interests of the child’s parent or carer, by removing the potential for a defendant to put pressure on the applicant to bring an application to vary the order, where that may reduce the protection afforded to the child. In contrast, other jurisdictions permit applications to vary or revoke an order to be brought by the protected person or the respondent, and notice must be given to all parties including police applicants.^[136]

20.111 Some jurisdictions require^[137] or permit^[138] a court exercising jurisdiction under family violence legislation to make a family violence protection order against a defendant who pleads guilty to, or is convicted of, a domestic violence offence, even where no application has been made for one. In NSW, an interim family violence protection order must also be made before a plea of guilty or a finding of guilt, when a person is charged with a serious offence.^[139]

20.112 Applications for family violence protection orders are generally heard in a magistrates court, except where the respondent is aged under 18 years, in which case, the application may—or, in some jurisdictions, must^[140]—be made in the children’s court.^[141]

Children’s courts

20.113 As discussed in Chapter 19, the children’s courts of all states and territories have existing powers under child welfare laws to hear a range of applications and make a variety of orders in relation to the care and protection of a child or young person.^[142] Some of these orders are very similar to family violence protection orders, such as orders excluding a person from a child’s residence, or limiting a person’s contact with a child.^[143] The Children’s Court of New South Wales, for example, may make an order under s 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW), prohibiting a person from doing anything that a parent could do in carrying out their parental responsibility. However, unlike a family violence protection order, this order may only be made against a person who has parental responsibility for the child; and it is unenforceable.

20.114 Children’s courts in some jurisdictions may also make family violence protection orders, although the situations in which these orders may be made varies across jurisdictions. For example, in Tasmania, proceedings for a family violence protection order may be transferred to the children’s court where this is considered appropriate.^[144] In South Australia, the Intervention Orders (Prevention of Abuse) Act 2009 (SA)—which has been assented to but is not yet commenced—confers jurisdiction on both the Magistrates Court and on the Youth Court.^[145]

20.115 In Queensland and the Northern Territory, family violence law confers jurisdiction on every ‘Magistrates Court and magistrate’ or court of summary jurisdiction, and on every other court—including a children’s court—where a person before it pleads, or is found, guilty of an offence involving domestic violence orders.^[146]

20.116 As noted above, the children’s courts of NSW and Western Australia have exclusive jurisdiction to make family violence protection orders against a child or young person.^[147] However, the Western Australian Children’s Court may also make a restraining order to protect a child, during care proceedings, either on its own initiative or on application by a party to proceedings, or by a parent or child welfare agency on behalf of a child.^[148]

20.117 Similarly, the ACT Children’s Court has express jurisdiction under family violence law to make a family violence protection order for the protection of a child against a parent or other person but only where there are care proceedings before it and the court believes it is necessary to protect the child from psychological abuse arising from the child’s exposure to family violence.^[149] Provided these conditions are present, the court can make the order either on its own motion or on application by a party to the proceedings—which would include the child protection agency.^[150]

20.118 By contrast, the Family Division of the Children’s Court of Victoria has broad jurisdiction to hear applications for family violence protection orders under the Family Violence Protection Act 2008 (Vic) and the Stalking Intervention Orders Act 2008 (Vic) where either party is under the age of 18 years.^[151] No other proceedings need to be before the court for these applications to be made.

20.119 Moreover, the Victorian Children’s Court is empowered to make a family violence intervention order for or between adults where the order relates to the same or similar circumstances as those affecting the child or young person.^[152]

20.120 This amendment followed a recommendation of the Victorian Law Reform Commission (VLRC) in its 2006 report, Review of Family Violence Laws. The VLRC noted that it was undesirable for family violence protection applications involving a child and an adult—for example, the child’s mother—to be ‘split’ and consequently heard in separate courts. At the time of its review, the Children’s Court of Victoria could only hear an application for protection where the respondent or the person in need of protection was under 18 years. The Children’s Court could not make an order protecting an adult from an adult respondent, even if the Court had made an order against the same respondent for the protection of the child. In these cases, adult applicants were directed to take their matter to the Magistrates’ Court, potentially leaving them without a protection order in the short term.^[153] The VLRC recommended that the Children’s Court have jurisdiction over adult–adult applications that include a child on the application.^[154] In consequence, any affected family member may now apply for a family violence protection order at the Children’s Court or the Magistrates Court in Victoria.^[155]

Relationship between family violence protection orders and child protection orders

20.121 Where families are, or have been, engaged in proceedings under both family violence legislation and under child welfare laws, there is a risk that inconsistent orders may be made, which may potentially compromise the safety of victims of family violence. Alternatively, as the Children’s Court of New South Wales submitted, a court may be prevented from making a care and protection order it considers is in the best interests of the child because of an existing, yet inconsistent family violence protection order.^[156] For example, the Court said that it had been stymied, in the past, from making an order restoring a child to his or her family because there was an existing family violence protection order against an adult family member, and it had no power to vary or revoke the family violence protection order in the absence of a police application to do so.

20.122 Although family violence protection orders generally prevail over child protection orders in Victoria and South Australia,^[157] each of those states’ children’s courts has power to vary or revoke a family violence protection order to resolve any inconsistency between the order and an order that is proposed under the relevant child protection legislation.^[158] The difference between them is that the South Australian court can only do so on application, while the Victorian court has own motion powers to vary or revoke a family violence protection order, subject to serving notice on all the parties and providing each an opportunity to be heard.

Consultation Paper

20.123 In the Consultation Paper the Commissions sought comments on the desirability of expanding the jurisdiction of all Australian children’s courts to make family violence protection orders:

• in favour of a child who is the subject of care proceedings before it, where the court considers a protection order necessary to protect the child from harm arising from the child’s exposure to family violence;^[159]

• to protect other children or siblings of the child who is the subject of care proceedings before it, where the court is satisfied that the children are affected by the same facts as alleged;^[160] and

• both on its own initiative and on application to the court.^[161]

20.124 Two additional, and related, issues were raised in the course of the Commissions’ consultations, as noted above. First, whether children’s courts should also be able to make family violence protection orders for and between adults, where a related matter involving a child or young person was being heard in the children’s court, as is the case in Victoria.^[162] Secondly, whether children’s courts should have powers to vary or revoke a family violence protection order in situations where, for example, they are prevented from making a care and protection order because of an existing, but inconsistent, family violence protection order.^[163]

Submissions and consultations

20.125 A majority of stakeholders—including the Children’s Court of New South Wales and the Magistrates’ Court and the Children’s Court of Victoria—supported a conferral of powers on all Australian children’s courts to make family violence protection orders for the protection of a child who is the subject of care proceedings before it where the grounds for making a family violence protection order are established.^[164]

20.126 One stakeholder observed that the safety and protection of children from harm and exposure to family violence should be ‘a key priority within the children’s court’ and, on this basis, gave its support.^[165] Women’s Legal Service Queensland also supported expanded jurisdiction, but stated that issues of family violence should be considered well before the matter was in the children’s court and be an integral part of any coordinated service response to the child and the family.^[166]

20.127 The Legal Aid NSW agreed that children’s courts should be empowered to make family violence protection orders on the basis that:

Protection orders can be used to maintain the child in the home but remove the perpetrator of violence. The Court will arguably be more inclined to allow a child to remain in the home if there is a criminal sanction available in the event of the breach. It also means that the onus will not be on the victim to seek out a protection order to protect themselves and the children in circumstances where they may not have the capacity or resilience to do so. Further, it makes the victim less likely to suffer recriminations for initiating a protection order and means that parallel proceedings will not have to be conducted in the Local Court and Children’s Court, which only adds further pressure to the victim.^[167]

20.128 Other stakeholders, while supportive, warned that care needed to be exercised because of the potential to use family violence protection orders against both parties where there are cross-allegations, given the criminal consequences for a breach.^[168] Stubbs submitted that the phrase ‘exposure to family violence’ may render the non-offending parent subject to a protection order for failing to protect their child from such exposure. She suggested that the intent of the power should be made clear—namely, that it is the offending party who should be the subject of any protection order—and attention needs to be given to how best to avoid orders being made against both parties, other than in exceptional circumstances.^[169]

20.129 The Queensland Government dissented, but noted that the issue was under consideration in the present review of its child protection services.^[170] The Department of Human Services (NSW) also did not support a general power being given to the children’s court to make family violence protection orders. It argued that the present power under s 90A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) was adequate to restrain those with parental responsibility from doing an act that may put the child or young person at risk of harm. However, it did agree that s 90A could be expanded to ‘broaden the range of matters which can be addressed.’^[171] While the Department did not elaborate further, the Children’s Court of New South Wales suggested that s 90A should be expanded to enable it to make a prohibition order against any person—regardless of whether or not they were exercising parental responsibility—and that the orders be made enforceable.^[172]

20.130 Submissions in this Inquiry generally agreed that, where the court found evidence to support making a family violence protection order in favour of the child before it in its care jurisdiction, the evidence may also support the making of an order to protect other children or siblings living in the home. It was agreed that where there was evidence to support the making of the order, a children’s court should be able to make a family violence protection order for the protection of a child even where the child was not a party to the care proceedings, either on application or on its own motion.^[173]

20.131 The Wirringa Baiya Aboriginal Women’s Legal Centre submitted that the definition of ‘sibling’ should be refined, in view of the fact that

in Aboriginal families there are often children of similar ages residing in the same household, sometimes in the care of an aunt, grandparent or other family member. We agree that if the court considers such an order necessary for the protection of a child it should have the capacity to make such an order for siblings, but this should be a discretionary power used to protect children from real risks of family and family violence, not simply a blanket policy that will apply across the board.^[174]

20.132 While the issue of expansion of the power of children’s courts to make orders between adults was not directly canvassed in the Consultation Paper, it was brought to the Commissions’ attention by the Magistrates’ Court and the Children’s Court of Victoria during consultations. The Victorian magistrates welcomed the amendment in Victoria and suggested it could be adopted in other jurisdictions to improve outcomes for children and their families all around Australia.

20.133 Several stakeholders supported giving children’s courts own motion powers to make family violence protection orders, including the Women’s Legal Service Queensland,^[175] National Legal Aid^[176] and the Magistrates’ Court and the Children’s Court of Victoria.^[177] The reasons given in support included that it:

• removes the onus on the victim of family violence to seek a protection order to protect him or herself and the children in circumstances where he or she may not have the capacity or resilience to do so; and

• makes the victim less likely to suffer recriminations for initiating an application for a protection order.

20.134 However, a small number of submissions expressed the view that family violence protection orders should only be made on application to the court, either by or on behalf of the person seeking protection, or by an advocate of the child.^[178] The Department of Human Services (NSW) submitted that giving the children’s court powers to make protection orders on its own motion would, first, compromise the court’s judicial dispute resolution functions and, secondly, give the court an inappropriate oversight function for child protection. The Department’s view was that the court should only resolve disputes before it.^[179]

20.135 There was also support for giving children’s courts the power to make an order varying or revoking a family violence protection order—for example, where the court wishes to make an order restoring a child or young person to his or her family but is prevented from doing so because of an existing family violence protection order against another member of the family. In these circumstances, the Children’s Court of New South Wales submitted that it should have power to vary or revoke an existing family violence protection order, either on application by a party or on its own motion. This would enable it to finalise both the care proceedings and the family violence protection order proceedings at the same time:

The conferral of such a power on the Children’s Court will save the family members the confusion and anxiety associated with being required to go to another court (in NSW, the Local Court) to have the AVO proceedings finalised.^[180]

20.136 Where applications for family violence protection orders for the protection of children and young people are sought in the children’s court, the Children’s Court of New South Wales argued that domestic violence support services should be available, as they are available to adult applicants in the local courts. The Court submitted that this would improve access to courts and make court processes less intimidating for children and young people.^[181]

Commissions’ views

Jurisdiction of children’s courts

20.137 A number of state and territory family violence laws already confer jurisdiction on children’s courts to make family violence protection orders, although the powers conferred on some state and territory children’s courts are more limited than others.

20.138 In the Commissions’ view, all Australian children’s courts should have clear jurisdiction under family violence legislation to hear and determine applications for family violence protection orders where the person affected by the family violence, or to be protected, or against whom the order is sought, is under 18 years. However, the jurisdiction should only be enlivened where there are proceedings in the court involving the child or young person, or a member of the child’s or young person’s family. In this regard, the Commissions note that a recent review of family violence legislation in Western Australia has similarly recommended that family violence restraining orders for the protection of children should be able to be taken out in that state’s children’s court.^[182]

20.139 Expanding the jurisdiction of children’s courts to make family violence protection orders is consistent with the ‘one court’ principle referred to in Chapter 3. That is, the Commissions’ overarching policy objective that, to the maximum extent possible, families who enter the legal system should be able to apply for, and be granted the orders they need by the court with which they first engage to address their safety concerns. Gaps in the system create the possibility that required protection will not be obtained, or obtained expeditiously. Such orders would be a significant adjunct to the orders presently available under child protection legislation to ensure the safety of the child and the child’s non-offending parent.

20.140 Jurisdiction to make family violence protection orders also fits squarely within the expertise of children’s court magistrates. Family violence issues are part of the core work of children’s courts. Many children’s courts magistrates are also likely to have experience in exercising jurisdiction under family violence legislation in their capacity as local court magistrates. Across Australia, children’s court magistrates are generally drawn from the pool of magistrates, and are often assigned to the children’s court for long periods of time.^[183]

20.141 In reality, the need to exercise this jurisdiction in the care division of a children’s court may be infrequent. Family violence protection orders are likely to be sought by police in the magistrates court as soon as the police suspect that a child or young person is being harmed, or is at risk of being harmed as a result of family violence. By the time proceedings are brought in the children’s court, a number of child protection interventions are likely to have already occurred, and a family violence protection order may have already been obtained. If the Commissions’ recommendations in Chapter 32 are accepted, applications for these orders may well have been considered and dealt with in a specialist family violence court context. However, there may be times when the need for family violence protection orders arises later, in children’s court proceedings, where the court considers that family violence protection orders appropriately form part of the outcome.

20.142 The Commissions have considered carefully the concerns expressed in submissions and those raised in the Wood Inquiry in NSW, where similar issues arose.^[184] However, after Australia-wide consultations, the Commissions take the view that, as long as family violence protection orders are linked to child protection proceedings, neither the courts’ role nor the role of child protection agencies is compromised. The availability of family violence protection orders simply gives the court another—and in some jurisdictions—a more effective mechanism to protect children from harm.

20.143 The benefits of the enhanced jurisdiction are significant. It creates a more seamless system for victims of family violence—including children—to allow them to access as many orders and services as possible in the court in which the family is first involved; removes the need for the child and the family to have to navigate multiple courts; reduces the need for victims of family violence to have to repeat their stories and, consequently, reduces the likelihood that people will drop out of the system without the protections they need.

Scope of the orders

20.144 As recommended above, the Commissions consider that all state and territory children’s courts should be able to make family violence protection orders where:

• the application involves a child or young person;

• proceedings relating to the child or young person are before the court; and

• the court is satisfied that the legislative grounds for making the order are met.

20.145 Furthermore, the Commissions recommend that children’s courts should be empowered to make family violence protection orders in favour of siblings of the child or young person who is the subject of proceedings, or other children or young people within the same household, who are affected by the same or similar circumstances. ‘Siblings’ should be defined broadly to take into consideration wider concepts of kin in Indigenous cultures.

20.146 Additionally, where they have jurisdiction as recommended above, children’s courts should also have power to make a family violence protection order for the protection of an adult where the order is based on the same or similar circumstances as those affecting the child or young person. For instance, a court may be directed to make an order for the protection of a child against an adult, and in the course of proceedings, forms the view that, based on the same circumstances, a related order is justified for the protection of the protective parent, or an adult sibling.

20.147 This recommendation is modelled on s 147 of the Family Violence Protection Act 2008 (Vic), where the power has proved practical and useful. In the Commissions’ view, it is undesirable for a family to have to go to two courts to obtain protection from the same person who has committed family violence, especially when making a separate application may leave a gap in protection. Protection orders in a family violence context will often be made for the protection of a parent or other carer with whom the child is living. The impact on a child of violence against a parent or other carer—in terms of that person’s capacity to be an effective parent—has been noted consistently throughout this Inquiry. A family violence protection order in favour of a protective parent will, essentially, also safeguard the protection of the child.

Revocation and variation

20.148 The Commissions further recommend that children’s courts should be empowered to make orders for the variation or revocation of an existing family violence protection order, to the extent that it is necessary to do so in order to permit the court to make an order under child protection law. A children’s court should be able to exercise this power either on application, or on its own motion. Where it exercises its own motion powers, the court should be required to serve notice on all the parties to the order and give each an opportunity to be heard. These measures will provide appropriate safeguards to ensure that family violence protection orders are not varied or revoked where doing so would compromise the safety of persons protected by the order.

Applications for orders and own motion powers

20.149 The Commissions are aware, in making these recommendations, that there will be many important procedural issues that will need to be resolved, and that the issues raised are likely to vary depending on the legislative context of each state and territory. The procedures for seeking protective orders may need to be adapted to the situation in the children’s court and may not be the same as those applying in the general courts. They should be consistent with:

• the principles underlying family violence legislation;

• the need to ensure the safety of the child or young person; and

• any special characteristics and procedures of children’s courts.

20.150 In NSW, for example, the requirement that only police can bring family violence protection order applications for the protection of a child may need to be reviewed given some concerns about the appropriateness of police appearing in care proceedings in the children’s court. In other jurisdictions, applications may be made by a parent, or another person on behalf of the child, including a child welfare officer—or on the court’s own motion. Expanding the class of people who may bring an application for a family violence protection order on behalf of a person needing protection may help close gaps for children and parents.

20.151 The Commissions further recommend that children’s courts should be empowered to make family violence protection orders on their own motion. This has a number of advantages, including removing the onus on the victim who may be reluctant to bring an application because they may fear retribution. The capacity of the court to make an own motion power may also be expedient in situations where the victim has not had legal advice. It may also address concerns about the appropriateness of police or child welfare officers bringing the application in certain cases. In an adversarial system it is a significant step to give own motion powers to a court, allowing it to make an order in the absence of an application before it from any party to the proceedings. Child protection presents one of the strongest cases for such a power. Indeed, courts have long exercised parens patriae powers to protect vulnerable children and, while what is proposed here is a statutory power, it arises from the same motivation and obligation to protect.^[185] The Commissions note that several jurisdictions already confer own motion powers on courts under family violence legislation.

Relationship to other courts

20.152 In Chapter 32, the Commissions recommend the establishment (or further development) of specialist family violence divisions in all Australian magistrates courts. As discussed in that chapter, practical arrangements will need to be put in place to ensure that specialist family violence courts and children’s courts work well together. The Commissions agree with the suggestion of the Children’s Court of NSW in its submission to the Inquiry,^[186] that the courts should establish appropriate referral arrangements and support mechanisms to help victims navigate between the two courts. The role of a dedicated liaison officer appears to be desirable in this regard.

20.153 The Commissions consider below the need for regular opportunities for ongoing family violence education and training.^[187] The Commissions also emphasise the importance of information sharing arrangements between the courts. In Chapter 30, for example, the Commissions recommend that both family violence protection orders and child protection orders are included in the national database to ensure that all courts are aware of existing orders made in relation to a particular family.^[188]