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.
When would this be considered necessary?
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
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.
Legal advice for parenting orders and domestic violence orders
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.