Tag Archive for: Parenting Orders

With Christmas approaching and the world seemingly getting back to normal after Covid 19, many people will be thinking of taking a well-earned break to end 2020, either domestically or perhaps overseas.

Some people have family overseas and they may wish to take advantage of the holidays for a visit and to be reunited with loved ones. This is not at all an uncommon scenario with Australia hosting people from many diverse backgrounds, and unsurprisingly children from separated families may have grandparents or other extended family living in other countries.

Travel within Australia for separated families 

Separated parents will be faced with decisions for their children (their own and the other parent’s decisions) that may not have been an issue when they were together. In my experience, quite a common decision where disputes can arise is when one parent may want to take children on an interstate holiday. The reasons why this is an issue can be complex ranging from lack of trust post separation, concerns as to the capacity of the travelling parent to care for the child responsibly – to a parent feeling uncomfortable about a child being far away etc. 

The family law system recognises that making decisions for children is part of the responsibilities of parenthood. Further, where there is “equal shared parental responsibility”, section 65DAC Family Law Act 1975 (“the Act”) requires that parents consult with each other, make a genuine effort to make a joint decision, and that a decision is made jointly. This applies to decisions relating to “major long terms issues” defined in sections 4 of the Act as including things such as religion, health, change of name, living arrangements that would make a parent’s time significantly more difficult and education. 

An interstate holiday is not likely to be a major long-term issue. Section 65DAE of the Act provides that decisions that are not major long-term decisions don’t need to be made jointly and therefore an interstate holiday doesn’t need to be agreed to by the other parent. If there is an order, it would need to be taken during the travelling parent’s time – if children are at school it should be during school holiday time.

When an interstate holiday arises as an issue, sometimes a parent will seek a specific order regulating or preventing interstate travel. 

The Federal Circuit Court, Family Court or a State Court exercising jurisdiction under the Act has power to make this type of order in relation to a child. Section 64B(2)(i) allows the Court to make orders about “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. Further power is contained within section 68B to restrain a person from entering or remaining in a specific area.

An order pursuant to section 64B requires that the Court treat the “best interests of the child” as the paramount consideration for the Judge exercising his or her discretion. Thus, a parent seeking to restrict the travel would need to establish why the order sought is in the best interests of the child. 

For an injunction pursuant to section 68B the Court would have regard to best interests and whether the order was appropriate for the welfare of the child. 

International travel for separated families 

In this context I’m talking about an overseas holiday and not a decision to relocate overseas. An international relocation would be a major long-term issue and required to be made jointly where there is equal shared parental responsibility.

If a proceeding is before the Court, or a parenting order has been made, a party is not permitted to remove a child from Australia without permission. Section 65Y and Section 65Z make it an offence punishable by up to 3 years imprisonment to remove the child from Australia without the written consent of the other parties.

If you are in the process of negotiating a parenting order, and you would like to take a child on a holiday overseas, permission of the other party ought to be obtained and recorded in the parenting order. This can be done on an interim or final basis. If you already have a final order and missed including an international travel clause, you will need written permission to go. 

Usually conditions will be agreed to/placed on the travel such as sufficient notice before travelling, restrictions on what country having regard to Government travel information such as Smart Traveller, a copy of the itinerary being provided to the other party, and contact details while overseas.

If no agreement is reached by the parents, then once again the Court has power to make an order allowing the overseas travel on an interim or final basis (the same power as for interstate travel).

The Court will treat the best interests of the child as paramount once again in making the order. Typically, in this situation the Court will be balancing the benefit to the child in experiencing the travel against any risk that a parent may not return the children to Australia. This is not a legal requirement, but it is the most common reason in my experience why a parent raises an objection to travel. Like with any Court application, evidence would be required to demonstrate why there is a risk a parent won’t return to Australia.

If a parent has concerns and wants to prevent a child’s international travel, they can take steps to place the name of the child on the Family Law Watchlist through the Federal Police. This would prevent a child being removed pending an application to the Court being made with respect to the child. 

If a child’s name is placed on the Family Law Watchlist and later orders are made for travel, it is important to make sure that the child’s name has been taken off the Watchlist before travelling and take a copy of the sealed order to the airport with you.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, 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.

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 [2020] 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.

I have noticed that as the Covid-19 crisis has continued, many parents have sought advice as to whether the lock down and restriction of movement means parenting orders no longer need to be complied with. 

In some case I have seen parents use Covid 19 as an excuse to breach orders in circumstances that in my view represents a clear breach. I currently have instructions to file proceedings on one such matter. 

Unfortunately, there is never an easy answer to whether a decision to breach an order amounts to a “reasonable excuse” and Covid 19 is not something we have seen before. 

Helpfully the Family Court and Federal Circuit Court of Australia have released a statement from the Honourable Will Alstergren, Chief Justice and Chief Judge of those courts, to assist the public and provide guidance.

Are the courts closed during Covid-19?

No. The courts are open and hearing cases. Most courts have however modified their procedures to decrease the necessity for personal contact. This means more court appearances being heard by electronic means (telephone or video). 

There are also procedures to increase the use of electronic documents (discussed in my previous blog on this topic) and since then a move away from requiring signatures on Affidavits (see Joint Practice Direction 2:JPD 2 of 2020 – Special measures in response to Covid-19).

The Attorney General Department has also classified legal services as “essential” and thus family lawyers and courts are available to assist people in need for the duration of the crisis.

General guidance for parents during Covid-19

Every family is different, every situation involving children is different so no written statement can ever substitute for advice from a Brisbane Family Lawyer or Gold Coast Family Lawyer.

His Honour however has penned 14 points which I will paraphrase here, that are very helpful in guiding people to make the best choices at this difficult time. 

  1. Act in the best interests of your children, particularly with regard to safety and wellbeing. Courts make orders in the best interests of children but day to day decisions are the responsibility of parents.
  2. Consistent with best interests is continuing to comply with Orders for time and communication.
  3. Situations may arise that make compliance impossible i.e. if a Contact Centre is closed. Other situations may raise an immediate safety risk – such as where a parent or person close to them has Covid 19. These situations may amount to a “reasonable excuse” not to comply. However, a in such a situation a Judge would need to agree with you on a contravention application. 
  4. As a first step, parents should communicate with each other (if it is safe to do so). This ought to be conducted “reasonably and sensibly” and aimed at achieving a practical solution to the issue. 
  5. If there is going to be a change to arrangements, even for a short time, they should be reduced to writing so everyone understands the agreement. 
  6. If people need guidance with an agreement, there are services such as the Family Relationship Advice line (1800 050 321) that can provide assistance and family dispute resolution services. 
  7. Lawyers such as Hooper Mill Family Lawyers can also assist with mediation service and helping negotiate an agreement. 
  8. If necessary, Consent Orders can be filed electronically.
  9. If parents can’t agree or it is unsafe to negotiate, and there are real concerns, the parents may approach the court electronically for a variation to orders.
  10. Where there is no agreement, parents should keep the children safe until the dispute can be resolved. Further, if time is stopped there should be some contact between the other parent and children.
  11. Act reasonably. Section 70NAE Family Law Act 1975 makes “reasonable excuse” a defence to a contravention and therefore a matter relevant to the court.
  12. If the strict letter of the orders cannot be adhered to, parents should ensure the purpose or spirit of the orders is respected.
  13. If there is some immediate danger to a child contact the police.
  14. Perpetration or threats of family violence is never in a child’s best interests.

His Honour went on to clarify that the community can be assured the court will continue to perform their duties during the Covid-19 crisis.

Family Dispute Resolution (such as mediation) during Covid-19

It remains the case that Section 60I Family Law Act 1975 must be complied with requiring that before commencing court proceedings (unless one of the matters in Section 60I(9) applies) parents must attend mediation before filing proceedings in a court for a parenting order.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, 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.

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