Commonwealth Numbered Acts Commonwealth Numbered Acts1 Division 11 of Part VII
Repeal the Division, substitute:
The purposes of this Division are:
(a) to resolve inconsistencies between:
(i) family violence orders; and
(ii) certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and
(aa) to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and
(b) to achieve the objects and principles in section 60B.
Note: Other provisions dealing with family violence and family violence orders are section 4 (definitions), paragraphs 60B(1)(b) and 60CC(2)(i) and (j), sections 60CF and 60CG, subsection 60I(9), section 60K, subsection 61DA(2), paragraph 65F(2)(b) and section 65P.
68P Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order
(1) This section applies if:
(a) a court:
(i) makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or
(ii) makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or
(iii) grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and
(b) the order made or injunction granted is inconsistent with an existing family violence order.
(2) The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a) specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b) give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c) explain (or arrange for someone else to explain) the order or injunction to:
(i) the applicant and respondent in the proceedings for the order or injunction; and
(ii) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d) include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii) the consequences that may follow if a person fails to comply with the order or injunction; and
(iv) the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v) the circumstances in which a person may apply for variation or revocation of the order or injunction.
(3) As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:
(a) the applicant and respondent in the proceedings for the order or injunction; and
(b) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d) the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e) the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f) a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.
(4) Failure to comply with this section does not affect the validity of the order or injunction.
68Q Relationship of order or injunction made under this Act with existing inconsistent family violence order
(1) To the extent to which:
(a) an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and
(b) the order or injunction is inconsistent with an existing family violence order;
the family violence order is invalid.
(2) An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by:
(a) the applicant or respondent in the proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or
(b) the person against whom the family violence order is directed (if that person is not the applicant or respondent); or
(c) the person protected by the family violence order (if that person is not the applicant or respondent).
(3) The court must hear and determine the application and make such declarations as it considers appropriate.
68R Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act
Power
(1) In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:
(a) a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or
(b) a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or
(c) an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or
(d) to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:
(i) an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or
(ii) a registered parenting plan within the meaning of subsection 63C(6); or
(iii) a recognisance entered into under an order under this Act.
(2) The court may do so:
(a) on its own initiative; or
(b) on application by any person.
Limits on power
(3) The court must not do so unless:
(a) it also makes or varies a family violence order in the proceedings (whether or not by interim order); and
(b) if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c)—the court has before it material that was not before the court that made that order or injunction.
(4) The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.
Relevant considerations
(5) In exercising its power under subsection (1), the court must:
(a) have regard to the purposes of this Division (stated in section 68N); and
(b) have regard to whether contact with both parents is in the best interests of the child concerned; and
(c) if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order—be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.
Registration of revival, variation, discharge or suspension of orders and other arrangements
(6) The regulations may require a copy of the court’s decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.
68S Application of Act and Rules when exercising section 68R power
(1) The following provisions do not apply to a court exercising the power under section 68R:
(a) section 65C (who may apply for a parenting order);
(b) subsection 65F(2) (parenting order not to be made unless parties attend family counselling);
(c) section 60CG (court to consider risk of family violence);
(d) section 69N (requirement to transfer certain proceedings);
(e) any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration;
Note: Even though the best interests of the child are not paramount, they must still be taken into account under paragraph 68R(5)(b).
(f) any provisions of this Act or the applicable Rules of Court specified in the regulations.
(2) If a court is exercising the power under section 68R in proceedings to make an interim family violence order or an interim variation of a family violence order:
(a) the court has a discretion about whether to apply paragraph 60CC(3)(a) (about taking into account a child’s views etc.); and
(b) any provisions of this Act or the applicable Rules of Court specified in the regulations do not apply.
(3) A court exercising the power under section 68R may, as it thinks appropriate, dispense with any otherwise applicable Rules of Court.
68T Special provisions relating to proceedings to make an interim (or interim variation of) family violence order
(1) If, in proceedings to make an interim family violence order or an interim variation of a family violence order, the court revives, varies or suspends an order, injunction or arrangement under section 68R, that revival, variation or suspension ceases to have effect at the earlier of:
(a) the time the interim order stops being in force; and
(b) the end of the period of 21 days starting when the interim order was made.
(2) No appeal lies in relation to the revival, variation or suspension.
Part 2 — Application of amendments and savings
2 Definitions
In this Part:
commencement means the commencement of this Schedule.
new Act means the Family Law Act 1975 as in force after commencement.
old Act means the Family Law Act 1975 as in force immediately before commencement.
3 Application of amendments
The amendments made by Part 1 of this Schedule apply to orders made after commencement, whether the application for the order was made before or after that time.
4 Saving of regulations
Despite the repeal of a provision of the old Act specified in the following table, regulations that:
(a) were made for the purposes of that provision of the old Act; and
(b) were in force immediately before commencement;
continue to have effect on and after commencement as if those regulations had been made for the purposes of the corresponding provision of the new Act that is specified in the table in relation to that provision of the old Act:
| Saving regulations made under provisions of old Act | ||
| Item | provision of old Act |
corresponding provision of new Act |
| 1 | subparagraph 68T(3)(a)(iii) |
paragraph 68S(1)(f) |
| 2 | subparagraph 68T(3)(b)(ii) | paragraph 68S(2)(b) |
|
3 | subsection 68T(6) | subsection 68R(6) |