The nature of family law means that often parenting matters and domestic violence matters become intertwined. Being involved in multiple proceedings involving domestic violence and child custody can be confusing and stressful. The number one concern from clients that come to us when there has been a DVO made against them or in their favour is, how does a DVO affect parenting orders and child custody?
During this difficult time in your life, you need clarity regarding your legal rights and obligations.
Read on to find out how a DVO made can affect parenting orders and child custody arrangements and to learn what you should do if parenting orders conflict with domestic violence orders.
Types of orders
What is a parenting order?
A parenting order is an order issued by the Federal Circuit & Family Court of Australia (FCFCoA) which sets out the parenting arrangements for your children.
What are the consequences if you do not comply with a parenting order?
Parenting orders are legally enforceable. This means that if you do not comply with part of the parenting order, you are said to have contravened the order.
If you contravene a parenting order, the other parent can apply to the Court by way of a Contravention Application, asserting the contravention.
Penalties apply for parties who are found by the court to have contravened parenting orders without a reasonable excuse for doing so, including costs orders, requirement to do parenting courses, makeup time, a fine, a good behaviour bond, community service, and even imprisonment.
What are domestic violence orders (DVO)?
A domestic violence order (AKA a Protection Order) is an order made in the State 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 the court determines that an order is necessary or desirable to protect the domestic violence victim. Domestic Violence includes physical abuse, verbal abuse, intimidation, harassment, threats and coercive and controlling behaviour. DVO’s can include various terms including that the respondent be of good behaviour and not commit domestic violence towards the aggrieved party, that the respondent cannot approach the aggrieved and that the Respondent cannot contact or communicate with the Aggrieved.
What are the implications if you do not comply with a domestic violence order?
If you do not comply with the terms of a protection order, the breach may reported to police. If you are charged with breach of a Protection Order it is a criminal offence. If you are found guilty of committing an act of domestic violence in breach of the Protection Order, the penalties can be severe and can include imprisonment.
When do parenting Orders and Domestic Violence Orders conflict?
A common example of where parenting orders and protection orders are inconsistent is when parties have to come into contact with each other to facilitate changeover of the children, but the Protection order prevents the Respondent from having contact with the Aggrieved party.
What this means practically is that if the respondent, in complying with the parenting orders, attends the changeover location for pickup and in doing so comes into contact with the aggrieved when exchanging the children, they will be in breach of the protection order.
How is a DVO relevant when the Family Law Court is making parenting orders?
Under s60CC(3)(k), when making a parenting order, the Court is required to take into account the nature of a DVO, the circumstances in which the DVO was made, any evidence admitted in proceedings for the order and any findings made by the Court in the DVO proceedings.
How does a parenting order affect a DVO? What happens if a parenting order and a DVO conflict?
Whilst it may seem counter intuitive, parenting orders take precedence over domestic violence orders that are designed to protect children from a perpetrator of violence. Section 68Q of the Family Law Act (FLA) states that a domestic violence order is invalid if it is inconsistent with the terms of a parenting order that provides for a child to spend time with a person.
But the Magistrates Court, when making a DVO, also has the power to vary or discharge or suspend a Parenting Order. Read on below to learn more about this.
Power of the Magistrates Court to vary/discharge/suspend a Parenting Order
If issues of domestic violence arise/escalate after a parenting order is made, s 68R of the FLA gives state and territory courts making a domestic violence order, the power to vary, discharge or suspend pre-existing parenting orders where the Court has before it material that was not before a Family law Court when the parenting order was made. When this power is enacted, the DVO effectively takes priority over the parenting order.
Section 68R therefore has the following purposes:
- It provides a mechanism to protect the victim and children from domestic violence when there are already parenting orders in place between the victim and perpetrator where subsequent to that order, domestic violence commences/escalates.
- It promotes the enforceability of the domestic violence order where it is inconsistent with a prior made parenting order.
- It means that a victim who has obtained a DVO will not face potential contravention proceedings for breaching a parenting order and will not be required to make application to the family law courts to vary the parenting order
- it is relevant where a parenting order is made in the absence of the victim of family violence, where the perpetrator has failed to disclose the violence to the family law courts
When the Court is exercising power under s68R the Court must consider purpose of section 68N to resolve inconsistencies between family violence orders and parenting orders and to ensure that parenting orders do not expose people to family violence, whether spending time with both parents is in the best interests of the child (note this is not the paramount consideration per s68R and s68S) and, if the court is suspending a parenting order that when granted was inconsistent with a DVO, the Court must be satisfied that it is appropriate to do so because the person has been exposed/is likely to be exposed to family violence as a result of operation of the order.
Relevantly also, section 78 of the Domestic and Family Violence Protection Act 2012 (Qld) (DVA) 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. That section reiterates the State Court’s power under the FLA to revive, vary, discharge or suspend a parenting order.
Under section 78 of the DVA, when a court is 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 parenting order.
Under s68T FLA, the revival/variation/suspension of a parenting order ceases to have affect when the interim family violence order lapses/ceases to have affect or upon the making of another order under s68R e.g. reviving the parenting order.
Despite the existence of the s 68R mechanism in the FLA and section 78 of the DVA, very few state and territory courts exercise their power to vary or suspend a family law parenting order to complement a domestic violence order. Many judicial officers and lawyers are not aware of section 68R and its purpose or otherwise would prefer to leave family law matters to the family law courts, despite the FLA explicitly vesting power in Judges to vary a parenting order where domestic violence occurs.
Case Example of operation of s68R in a family law and domestic violence matter context
- Paul has a final parenting order with Mary made in the FCFCoA providing for him to spend alternate weekends with his children dated 25/01/2023.
- Mary, files an application for a DVO in Brisbane Magistrates Court (BMC) on 25/07/2023 making allegations of family violence and coercive control against Paul.
- BMC makes an interim DVO on 27 July 2023 that is in place ‘until further order’.
- One of the conditions of the interim DVO states “Under s68R of the Family Law Act 1975, the existing family court order made on 25/01/2023 is suspended as per Order made at this Court.”
- Mary’s application for a DVO is then listed for hearing on 20/01/2024.
- There are no court dates between now and then at which time.
Paul wants to spend time with his children. What are Paul’s options?
- Make an Application to the FCFCoA for parenting orders, including an order under s68R to revive the parenting order;
- Make an application in the BMC to vary the interim DVO / revive the Parenting Order under s68R / agree to final orders on a consent without admissions basis therefore discharging the interim order / contest the DVO at the Hearing on 20/01/2024.
There is no appeal that lies in relation to s68R orders: s68T(2).
What are the State Courts normally doing to rectify inconsistencies in a DVO and a parenting order?
Magistrates are very aware of the common inconsistencies between DVOs and parenting orders and the impact that may have.
As a result, many Magistrates have opted to include additional terms when making a protection order which act as ‘exceptions’ to the protection order if it impacts upon an existing parenting order/parenting plan. An example might be:
“The respondent is prohibited from following or approaching to within 100 metres of the aggrieved when the aggrieved is at any place.
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 are the family courts required to do when it makes a parenting order inconsistent with a DVO?
- Specify in the order/injunction that it’s inconsistent with existing DVO;
- Give a detailed explanation in order/injunction of how the contact will take place; and
- explain the order or injunction to, the app and resp for the dvo, respondent to dvo, aggrieved in dvo; and
- include/arrange to include in explanation, in language they are likely to understand:
- the purpose of the order or injunction;
- obligations created by the order/injunction, incl how the contact it provides for is to take place;
- the consequences if a person fails to comply with the order or injunction;
- the court’s reasons for making an order/injunction that’s inconsistent with a DVO and
- the circumstances in which a person may apply for variation/revocation of the order/injunction.
- As soon as practicable after making the order (no later than 14 days after), the court must give a copy to:
- the parties in the family court proceedings;
- the respondent to the DVO;
- the aggrieved person in whose favour the DVO is granted;
- the court that last varied the DVO;
- the police where the aggrieved resides;
- DOCS in the location where the aggrieved resides.
Notably, failure to comply with this section does not affect the validity of the order per s68P.
In Schieffer & Schieffer  FamCA 168, the Court made an order inconsistent with an AVO (NSW version of a DVO) as it was held to be in the children’s best interests. In that case, the court made an order per s68P(3) to send a copy of the order to the local magistrates court, police and FACS.
Further a notation was made that certain parenting orders were inconsistent with a particular paragraph of the AVO, because the mother and father needed to interact with one another over arrangements for the child. It was further noted in the order that the parenting order overrides the DVO to the extent inconsistent (s69Q).
What you can do if there is no exception in your protection order to allow contact with the other party
If a clause such as the above has not been included in your protection order and the provisions of the protection order prevent your compliance with parenting orders, the usual rule applies, that the parenting orders take precedence over the domestic violence order, to the extent they are inconsistent.
To avoid confusion in future, it is also advisable that the parties vary the DVO to ensure it is not inconsistent with the parenting order.
Where there is an existing DVO – How do I communicate with my ex about the children and how do we do changeover?
If there is an existing DVO in place and you start to discuss parenting arrangements, you should speak to your lawyer about the best way to communicate and reach an agreement on the care of your children.
This is important particularly if you are the Respondent to a DVO, to ensure that any communications that take place between you and the Respondent, are not in breach of the DVO. Often this can be achieved by having all communications occur through mediation or via each party’s respective solicitors.
What if my DVO was made by consent without admission? Does it affect what parenting orders the court makes?
As stated earlier, the family law courts are required to take into account any family violence, any existing DVO and any circumstances surrounding the family violence proceedings including any findings of fact made in those proceedings.
If a DVO is made after a hearing (i.e. not by consent) and findings of fact are made by the Magistrate that a party committed domestic violence towards the aggrieved, the family law courts will take those findings into account and this may have a significant impact on the parenting orders that are in the best interests of the children. The safety of the children and families is prioritised: Central Practice Direction. When balancing the child’s right to have a meaningful relationship with both parents and the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence, the latter consideration is given greater weight.
However, where a DVO is made by consent without any admission to the facts, which is the case for 90% of DVO’s made by the State Courts, it is unlikely that the DVO will have a significant affect on the parenting orders a court makes, unless the aggrieved is alleging that the children are at a risk of physical/psychological harm in the respondent’s care. However, the Court is likely to be conscious about the orders it makes to ensure that the parenting orders made are not dramatically inconsistent with the DVO and deal with any safety concerns of a parent, by for example, making orders that changeover occur at a public place, to avoid exposure of the children to family violence.
An incident of domestic violence has occurred. How does a DVO affect parenting orders? Can I suspend the current parenting orders?
As earlier stated, where there is a DVO and a Parenting Order, the Parenting order overrides the DVO to the extent that it is inconsistent with it.
If final parenting orders have been made in the Federal Circuit Court and a domestic violence incident has occurred since the parenting orders were made such that the parenting orders are inappropriate and no longer in the children’s best interests, you should:
- File an application for a protection order including a temporary protection order suspending the current parenting order;
- File an application to change the parenting orders.
Prior to taking these steps, you should seek legal advice.
Contact us for more information on how a DVO affects parenting orders
If you are the victim of domestic violence or you are a respondent in a domestic violence application, you should seek legal advice from one of our experienced family law experts about your specific circumstances and the impact of those orders on parenting orders and child custody arrangements.
Each person’s circumstances are unique and the steps we advise you to take in one matter might be completely different to another matter.
If you are unsure and would like some clarity around your rights and obligations when it comes to domestic violence orders and inconsistent parenting orders, contact us to book a reduced rate initial consultation with our experienced family law experts, to have a confidential discussion about your individual circumstances.