It is not uncommon in family law parenting matters for issues of domestic violence to arise. Family violence is relevant evidence for the court to consider in determining what parenting order will be in the best interests of children.
At the same time, a party to the parenting orders may have obtained a domestic violence order against the other party (or both parties may have orders) and often the children the subject of a parenting order will be named on a domestic violence order.
In my experience this can create confusion for people uncertain whether they can still interact with their children or the other party while an exclusion provision under a domestic violence order (such as not coming within 100 metres of a party or child’s school or residence), is in place,
What is the difference between Domestic Violence and Parenting Orders?
One difference between domestic violence orders and parenting orders is jurisdiction. Domestic violence orders are created under State legislation while parenting orders come under Commonwealth jurisdiction conveyed by the Family Law Act 1975.
Thus, different States have different law and names for these orders. The different State and Territory names are:
- Queensland – Protection Orders.
- NSW – Apprehended Violence Orders.
- ACT – Family Violence Order.
- Victoria – Family Violence Intervention Order.
- Tasmania – Family Violence Order or Police Family Violence Order.
- South Australia – Intervention Order.
- Western Australia – Restraining Order.
- Northern Territory – Domestic Violence Order.
While the names are different, they all serve the same purpose which is to impose conditions on the Respondent to the order to do, or refrain from doing things such as:
- Be of “good behaviour” and not commit domestic violence towards a person.
- Not contact or approach a person or within a certain distance of a person.
- Not approach within a certain distance of where a person works or lives.
- Other conditions that are authorised by the State legislation.
These orders are civil not criminal order, but a breach of an order is a criminal offense.
Parenting orders typically regulate who children live with, how parents are to cooperate in making decisions for their children, and when and how a person spends time and communicates with their children. There is also power in the Family Law Act 1975 to make personal protection injunctions similar to the conditions in domestic violence orders.
Obviously when one order is saying, for example, a person is not to come within 100 metres of a child or school, but a parenting order provides, that person is to collect the child from school at a certain time, conflict between the orders would appear to arise.
Resolving conflict between Domestic Violence Order and Parenting Orders
A situation similar to the above example recently arose in Tasmania in PQR v Sundram  TASSC 21 where a Magistrate convicted a father of breaching a Police Protection Order when the father attended a school at various times to either speak to the principal and/or visit his daughter.
The Magistrate dismissed some of the charges, but found him guilty on others, with the above case concerning a review of the charges he was convicted of.
The issue was an earlier parenting order allowed the father to spend time with his daughter for certain periods of a fortnightly cycle, and that he collect her from school. The subsequent domestic violence order provided that the not come within 50 metres of his daughter or the school.
Some of the charges related to times when the father was authorised by the parenting order to collect and spend time with the daughter; while other charges related to times not covered by the parenting order.
The father argued that section 33 of the Tasmanian Family Violence Act 2004 provides, “…[a domestic violence order] operates subject to any Family Court order…” Also, the order with respect to coming within 50 metres of his child was expressed to be “except in accordance with an order of a court of competent jurisdiction…”. Not surprisingly he wasn’t convicted on the charges where he was authorised by the parenting order to spend time.
However, the domestic violence order preventing him from attending the school was not expressed to be “except in accordance with an order of a court of competent jurisdiction”. Therefore, the question was whether it was capable of co-existing with the parenting order.
The Magistrate found that the father could collect the child from school without approaching within 50 metres of it. It was acknowledged this wasn’t ideal and might present other consequences, but it wasn’t inconsistent. The father was convicted with respect to the counts where he attended the school.
However on review Chief Justice Blow determined the order not to approach the school was “adjunct” to the order not to approach within 50 metres of the children, and neither operated during times that the father was to spend time pursuant to the parenting order.
This left one charge where the father attended the school outside of parenting order times. An argument was raised by counsel for the father that one of the parenting orders allowed for “equal shared parental responsibility”. Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”, and it was argued this also meant attending a school to speak with teachers. The Chief Justice determined that while the domestic violence order was an impediment to parental responsibility it was not inconsistent.
Queensland Domestic Violence Law
The relevant domestic violence legislation in Queensland is the Domestic and Family Violence Protection Act 2012. There are several sections of this legislation that refer to the interaction of family law orders and Protection Orders:
- Section 5 and the dictionary schedule define “family law order”.
- Section 78 requires the State court to “consider” a family law order.
- Section 79 an applicant must disclose any family law order.
- Section 107D requires that a police officer issuing a Police Protection Notice ask about any family law order and not make a condition inconsistent with a family law order or apply to a Magistrate to have a proposed inconsistent condition made.
Within the Family Law Act 1975 section 68R empowers a State Magistrates Court in a domestic violence proceeding to revive, vary, discharge or suspend an existing order, injunction or arrangement under the Family Law Act.
Tips for Domestic Violence matters involving children
If you find yourself as the Respondent to a domestic violence proceeding, I recommend the following:
- Get legal advice at an early stage. It is important that you speak to someone to give you some orientation and understanding of the laws, system and process you find yourself in. Legal services are expensive however most lawyers, my firm included, only charge a relatively modest fee for initial advice.
- Make sure you participate in the court process. If you fail to attend court, you will have no control over the conditions on the Protection Order and a final order could be made in your absence. If you’re anxious about court, you can hire a family law solicitor to appear for you or sometimes a “duty lawyer” may be available to assist. In some circumstances you can seek Legal Aid assistance.
- Tell the court about any family law orders or parenting plans that you have. Depending on the seriousness of the domestic violence allegations most Magistrates will want to ensure children’s rights to have contact with parents is advanced, provided it is consistent with their safety.
- If possible, have your lawyer negotiate on your behalf with the aggrieved. Most family violence orders will make exception for things such as communication via lawyers, attending other court or mediation or spending time and communicating with children. Make sure your orders contain these conditions.
- Make sure you have read and understood the Protection Order conditions. If in doubt, ask your lawyer (or even the Magistrate) what the conditions mean.
- Abide by the conditions. Breaching a Protection Order is a criminal offence.
Of the above my view is the first point and the last point are the most important. Get information early and make sure you don’t breach the order.
Family law advice
If you have any queries in relation to family violence or parenting orders, my firm Hooper Mill Family Lawyers can assist you with practical advice.
We are family lawyers servicing all areas in Brisbane and on the Gold Coast.