The Interaction between Family Violence Orders and Parenting Orders

It is not uncommon for a Family Violence Intervention Order to be made before, during or after parenting proceedings.

The purpose of this article is to explain the difference between a Family Violence Intervention Order and a Parenting Order and how the Courts deals with inconsistency between the two orders under the Family Law Act 1975 (Cth).

What is the difference between a Family Violence Intervention Order and a Parenting Order?

A Family Violence Intervention Order (“FVIVO”) is a legal document granted by the Magistrates Court of a State or Territory, which aims to protect a person (known as the protected person/s or the applicant), a child, and their property against the person who is perpetrating family violence (known as the respondent). The FVIVO outlines strict conditions that the respondent is required to follow, which can include, but not limited to:

  1. Prohibiting the respondent from committing family violence;
  2. No contact with the protected person; and
  3. The respondent is required to remain a certain distance away from the protected person.

On the other hand, a parenting order is made by the Federal Circuit and Family Court of Australia (“FCFCOA”) which outlines the parenting arrangements of a child. A parenting order is valid until the child turns 18 years of age.

A parenting order may address, amongst other points, as follows:

  1. Whether the parents have joint or sole decision making of the child;
  2. Who the child lives with;
  3. How much time the child spends with a parent; and
  4. How the parents communicate with each other.

It is not uncommon for both a FVIVO and a parenting order to exist simultaneously, which may be inconsistent with one another.  As a result, the FVIVO may include specific exceptions that may permit the respondent of the FVIVO to communicate with the applicant by way of email or text message, or follow an existing parenting plan or parenting order. In such circumstances, anything permitted by the family law orders is outside the scope of the FVIVO, but the FVIVO is otherwise still in full force and effect. In summary, the respondent must not do anything outside of the terms of the parenting plan or orders.

Division 11 – Family Violence of the Family Law Act

The purpose of Division 11 of the Family Law Act 1975 (Cth) is to resolve inconsistencies with a FVIVO made by a State or Territory Court and a parenting order made under the Family Law Act, ensure no parties are exposed to family violence, and ensure that the best interest of the child is met.

Section 68P of the Family Law Act

Section 68P applies when the FCFCOA makes a parenting order which is inconsistent with an existing FVIVO. When an inconsistency exists, the Court is required to do the following:

  1. Outline in the parenting order that there is an inconsistency between an existing family violence order;
  2. Provide a greater explanation in the order on how contact with the child is to proceed; and
  3. Explain how the orders are to occur to all parties involved, which includes the purpose, obligations, consequences, the reasoning for the court to make an order that is inconsistent and the circumstances that a parent may apply to vary or revoke the order.

Commonly this is resolved by adding a notation/order in the parenting orders stating that if an inconsistency exist between the two orders, the parenting orders will prevail.

Section 68R of the Family Law Act

Generally, parenting orders override FVIVO as the FCFCOA has federal jurisdiction. However, section 68R permits a State or Territory Court that has jurisdiction to grant a FVIVO to revive, vary, discharge or suspend an existing parenting order.

The Court is not permitted to revive, vary, discharge or suspend an existing parenting order unless the Court is making or varying a FVIVO and that the Court has material that it did not have previously have when the parenting order was made.

For the court to exercise its power under section 68R, the Court is required to consider the following:

  1. The purpose of Division 11;
  2. If spending time with both parents is in the best interests of the child; and
  3. That the affected person has been exposed or is likely to be exposed to family violence because of the operation of the existing parenting order.

Therefore, a Court of a State or Territory can alter or override a parenting order if the court is satisfied that it ensures the safety of the parent or child concerned.

Next steps

If you or someone you know wants more information or needs help or advice with their family law matter, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

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