The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) confirmed the paramountcy of the child’s best interests as a consideration in the making of parenting orders. The amendment was made in the context of further amendments to the Family Law Act 1975 (Cth) (‘FLA’) which recognise the impact of domestic violence on children by extending the definition of child abuse and providing stricter regulations for the treatment of family violence by the courts.
These amendments represent a cautious approach to allegations of domestic violence. The Court must actively seek evidence regarding the existence of domestic violence where such allegations are made. Given this approach it is worth considering what discretion the Family Courts have to make parenting orders which disregard allegations of family violence or nullify the effect of existing Apprehended Domestic Violence Orders (ADVOs).
The FLA provides that the Court must ask parties to proceedings whether each party considers themselves or the children concerned to be, or to have previously been, at risk of exposure to abuse, neglect or family violence. This is designed to inform the Court of evidence which may be required to ensure parenting orders are made with respect to any determined risk of family violence.
Ultimately, the Court has discretion to make parenting orders which override a pre-existing ADVO to the extent of any inconsistencies. Where the Court makes orders that are inconsistent with an ADVO, the Court holds the following obligations:
- it must declare in the order that the order is inconsistent with an existing family violence order;
- it must give a detailed explanation in the order of how any time or communication provided for is to be carried out;
- it must explain the order to the parties, whether that may be a person against whom the family violence order is directed and/or a person protected by the family violence order; and
- it must include an explanation as to the purpose of the order, the obligations created by the order, the consequences of failure to comply with the order and the court’s reasons for making an order inconsistent with a family violence order.
The Court in Dalby v Selwood  FCCA 2833 described these obligations as a set of strict conditions on the exercise of the power. However, whilst the Court is obliged to provide reasons for the making of inconsistent orders, failure to meet the above obligations does not invalidate the orders made.
In this sense there are few practical limitations on the Court’s discretion to make orders which are inconsistent with pre-existing ADVOs. The paramountcy of the best interests of the child does limit the type of orders which may be made, however discretion still largely lies with the Court in this respect.
Want to know more? Contact our family law team today.