The Family Law Act has Sections on family violence. These Sections on family violence (FV) fall under Division 11 of Part VII of the Family Law Act. Part VII deals with matters related to children in family law. Division 11 titled ‘Family Violence’ consist of 6 Sections.
In this article on Family Violence Family Law Act, we will go over the 6 Sections in detail. To begin with, what is family violence? Family violence is any form of abuse, mistreatment or neglect that a child or adult experiences.
A family member or anyone who is close to a person can perpetrate this kind of harm that can constitute ‘family violence.’ Domestic violence is another word for family violence and it occurs if a person attempts to coerce or control another party, or harms them emotionally, physically or financially.
Section 68N: Purposes of Division 11 ‘Family Violence’
Section 68N lists out the purposes of Division 11 on Family Violence. These purposes are as follows:
(a) To resolve inconsistencies between: FV orders, and certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require a person to spend time with the child.
Moreover, the purpose of this Division is to make sure that the orders, injunctions and arrangements do not expose people to FV.
(b) The objective of this Purpose is to further achieve the objects and principles of Section 60B.
Section 60B of the Act lays out the principles and objectives of the Act and it states that it must ensure that the law meets the best interests of the child.
Section 68P: Obligations of Court Making an Order That Is Inconsistent with Family Violence Order
This Sections lists out the obligations of the Court if it makes an injunction or order that is not consistent with an existing FV order.
This Section applies if a court makes a parenting order, recovery order or an injunction that requires a child to spend time with a person, and the order is inconsistent with an existing FV order.
In such a case, the court must:
- specify that the parenting or recovery order or injunction is inconsistent with an existing FV order, and
- provide details on how that contact is to take place, and
- explain the order/injunction to the applicant and respondent in the proceedings for the order or injunction, and person protected by the FV order, and person against whom the order is in place.
Moreover, Section 68P further states that it is the courts’ obligation to include in the explanation the purpose of the order/injunction, the obligations created by, and the consequences of the order/injunction.
Importantly, the court must include it’s reasons behind making an order that is in inconsistent with an existing FV order. It can also specify the circumstances in which a person may apply to vary or revoke the order/injunction.
Additionally, the Section states that as soon as the court makes the order/injunction, the court must give a copy to the:
- applicant and respondent in the proceedings for the order/injunction,
- person against whom the family violence order is directed,
- person being protected by the order,
- Registrar or Principal Officer of the court,
- Commissioner or head of the police force, and the Child Welfare Officer of the State/Territory in which the person being protected resides
Section 68Q: Relationship of Order or Injunction With Family Violence Order
This Section states that to the extent to which the court makes an order/injunction (that provides for a child to spend time with someone), and the order is inconsistent with a family violence order –the family violence order is invalid.
Parties can make an application for the declaration that the order/injunction is inconsistent with the family violence order. This application can be made by the:
- applicant or respondent in the proceedings for the order/injunction
- person against whom the family violence order is directed, and
- person protected by the order
The court must then hear and determine the application and make such declarations that it considers appropriate.
Section 68R: Power of Court
Courts have the following powers to make or vary a family violence order. Moreover, in proceedings to do so, the court can make/vary/suspend or discharge:
- parenting order
- recovery order
- an injunction
The court may do so either by its own initiative, or on application by another person. There are also certain limits on the power of the court.
Section 68S: Application of Act and Rules when Exercising Section 68R Power
This Section states that the following provisions do not apply to a court exercising power under Section 68R:
- Section 65C – who may apply for parenting order
- Subsection 65 (2) – parenting order not to be made unless parties attend family counselling
- Section 60CG – court to consider risk of family violence
- Section 69N – requirement to transfer certain proceedings
- any provisions like Section 60CA that would otherwise make the best interest of the child the paramount consideration
Secondly, the Section also states that the court has a discretion about whether to take into account the child’s views when making an interim family violence order.
Section 68T: Special Provisions for Interim Family Violence Order
If a court revives, varies or suspends an order/injunction in proceedings to make interim family violence order – then that variation, revival or suspension ceases to have effect at the earliest of the time:
- the interim order stops in force,
- specified in the interim order
- order/injunction/arrangement is affected by an order made by court
Additionally, the Sections states that no appeal lies in relation to the revival, variation or suspension.
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