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FAMILY LAW

How does domestic violence affect child custody?

Parenting orders and domestic violence orders: what to do when they conflict or when they are no longer appropriate.

Child Custody

An issue which we are seeing arise more and more often is conflicting parenting orders and domestic violence orders.

Being involved in multiple proceedings regarding parenting and domestic violence can be stressful and confusing. During this difficult (and often high conflict) period in your life, you need clarity regarding your legal rights and how you should be implementing court orders.

This article will outline what you should do if your parenting orders conflict with domestic violence orders.

Types of orders 

What is a parenting order?

A parenting order is an order issued by either the Family Court or Federal Circuit Court which outlines parenting arrangements for any children of a relationship. Parenting orders can be entered into by the consent of both parties or, where the parties cannot agree, are ordered by the court after a trial.

What are the implications if you do not comply with a parenting order? 

Parenting orders are legally enforceable. This means that if a party does not comply with part of the parenting order, they are said to have contravened the order.

Depending on the type of contravention, a party can then apply to the court pursuant to a contravention application.

There are penalties for parties who are found by the court to have contravened parenting orders.

 What are domestic violence orders (DVO)? 

A domestic violence order, often called a Protection Order, is an order made by a Magistrate in the Magistrates Court in response to an Application for a Protection Order. A Protection Order will be made where an act of domestic violence is found to have occurred and can include a wide variety of terms, most commonly that the respondent be of good behaviour and not commit an act of domestic violence.

What are the implications if you do not comply with a protection order? 

If you do not comply with the terms of a protection order, the breach could be reported to police and, if you are charged and found guilty of having committed an act which is contrary to the terms of the protection order, you will have committed a criminal offence.

 When do orders conflict?

A common example of inconsistent orders are orders relating to changeovers.

It is common for a child’s school to be listed in a protection order (including orders made on a temporary basis) as a place the respondent (being the person the protection order application was brought against) is not to approach.

Parenting orders often provide for changeovers to occur at the child’s school where the child is of school age and changeover is occurring on a business day.

What this means practically is that if the respondent, in complying with the parenting orders, attends the child’s school to pick them up, they will be in breach of the protection order which can have serious consequences.

Until recently, the position was that the parenting orders prevailed. This meant that, where the parenting orders provided for the child to be collected from school, even where a protection order was in place which prevented the parent attending the school, they could attend to carry out the orders.

Amendments to the Family Law Act 1975 (Cth) (“Family Law Act”) and the Domestic and Family Violence Protection Act 2012 (Qld) (“Domestic Violence Act”) have changed this position.

Section 78 of the Domestic Violence Act requires the Court to consider any existing parenting orders but does not limit the Court’s power to make protection orders that are inconsistent with the existing parenting orders.

Importantly, when considering whether a protection order will contradict a parenting order, the court must not reduce the level of protection afforded under the protection order for the purpose of trying to ensure consistency with a family law order.

Child Custody Case Example 

Parenting proceedings and domestic violence proceedings are often interconnected. Magistrates are aware of this and the implications orders impacting upon parenting orders may have on parents.

Accordingly, many Magistrates have opted to include additional terms when making a protection order which effectively preclude a term of the protection order if it impacts upon an existing parenting order. An example is outlined below.

Typical term contained in a protection order:

“The respondent is prohibited from following or approaching to within 1000 metres of the aggrieved when the aggrieved is at any place” 

Notation made by a Magistrate in consideration of the practical implementation of a parenting order:

This condition does not apply when having contact with a child or children as set out in writing between the parties in compliance with an order of a court, or when having contact authorised by a representative of the Department of Communities (Child Safety) with a child or children”

What you can do if this applies to you

If a clause such as the above has not been included in your protection order and the provisions of the protection order essentially prohibit your compliance with parenting orders, there are ways you can rectify this.

Variation

If both parties agree that the inconsistency between the orders is impractical and needs to be rectified, the easiest way to do this is to apply to vary the protection order to remove inconsistencies between parenting and domestic violence orders.

If you are the aggrieved, respondent, applicant or a named person (e.g. relative or associate named on the order), you can apply to make changes to the current domestic violence order.

You will need to complete a Form DV4 Application to vary a domestic violence order. This will need to be filed with the court. We can assist you with this process and answer any queries you have as to

Apply to the court

Alternatively, you may apply to the Family Court for orders that the family court orders prevail over the protection order.

The court must, in accordance with section 68P of the Family Law Act, to the extent to which the order provides for the child to spend time with a person, specify in the order that it is inconsistent with an existing family violence order.

Reach an agreement

It can at times be cheaper and easier to reach an agreement with the other parent as to another, more appropriate changeover location whilst the protection order is in place, which complies with both sets of orders.

It is not unusual for a parenting order to contain a paragraph which states something to the effect of “the changeover location is to be as agreed between the parties, failing agreement the child’s primary school”.

These types of orders are capable of being complied with even where one parent is prohibited from attending the school of the child, as an alternative location can be used for changeovers where both parties consent.

An incident of violence has occurred. Can I suspend the current parenting orders? 

If final parenting orders have been made in the Family Court or Federal Circuit Court and an incident has occurred which renders those orders inappropriate, it may be necessary to file an application for both a protection order and updated parenting orders.

An example which commonly comes across our desks is an incident of violence occurring at changeover for the child.

Recently we were advised of a situation which occurred during changeover and, during a heated discussion regarding the child, the father of the child tried to hit the mother of the child but instead hit the door behind the mother. This was all in the presence of the child.

In the circumstances, it was most appropriate for the mother to file an application for a protection order, seeking a temporary protection order in the interim suspending the current parenting order.

Suspending current parenting orders 

Under section 78 of the Domestic Violence Act, a Magistrate is able to vary, discharge or suspend a family law order. This is mirrored in section 68R of the Family Law Act which permits a court of summary jurisdiction, when making or varying a family violence order, to revive, vary, discharge or suspend an existing parenting order where the court is provided with material that was not provided to the family court when the parenting order was made.

What this means practically is that, if there is new relevant information which came to light after the parenting orders were made and which the family courts have not yet considered, the Magistrate can suspend the current parenting orders.

Returning to the Federal Circuit Court for child custody

Once the current parenting orders have been suspended, an urgent initiating application should be brought in the Federal Circuit Court for the material regarding the domestic violence incident to be considered by a judge and seeking appropriate parenting orders to be made.

Such an application would satisfy the rule in Rice v Asplund, namely that there has been a significant change in circumstances, allowing the applicant to seek parenting orders in circumstances where final parenting orders have already been made.

This should also be your next step if you are defending the application for a protection order and your parenting orders have been suspended. It is very likely in those circumstances that your contact with the child will have been limited substantially. Accordingly, it may be appropriate to seek an abridgement of time which would allow your application to be heard as soon as possible.

IMPORTANT: This article is based upon circumstances which have arisen for a unique scenario that was brought to our attention. This article should not be relied upon in deciding whether it is appropriate for you to make an application to the court.

Rather, you should seek legal advice and have both your domestic violence orders and parenting orders considered by a legal professional before taking any further steps. Each person’s circumstances are unique and the correct course of action for one person or scenario may be completely inappropriate for another.

If you are unsure and would like some clarity regarding your scenario or circumstances, reach out to our team for a discovery session to identify your next best steps moving forward.

 

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