The legal system

The legal system 

Our legal system addresses issues of domestic violence, child protection, and family law through an interplay of protective mechanisms designed to safeguard the wellbeing of children and families. 

• Domestic violence protection orders, governed by the Domestic and Family Violence Protection Act 2012, offer immediate and legally enforceable measures to make further abuse a criminal offence under the Criminal Code Act 1899.
• Family Law Parenting Orders, established under the Family Law Act 1975, determine the parental responsibilities and arrangements for children whether parents are separated, divorced, re-married, re-partnered or were never in a relationship with each other, where the best interests of the child are prioritised. 
• The Child Protection Act 1999 provides a framework for child protection orders, which are critical when there is evidence that a child is at risk of significant harm. 

We must coordinate how these legal instruments work together, especially when they overlap to ensure comprehensive protection and support for the child and their family.

Domestic violence orders

The Magistrates court can make a domestic violence order once they are satisfied, ‘on the balance of probability’ that domestic and family violence has occurred and is likely to occur again. This is a civil threshold, and the burden of proof is different from that of criminal court (which requires that the court has ‘beyond reasonable doubt’). 

A domestic violence order can require that the person using violence (the respondent) are not allowed to do certain things or behave in certain ways, to stop threats or acts of domestic and family violence against another particular person/s (the aggrieved). 

Named persons

It can also list named persons, and this can include children who live with the aggrieved and unborn children if the court is satisfied the order is necessary or desirable to protect the child from associated domestic violence or from being exposed to domestic violence. It is common that when these factors are present the court will see it necessary or desirable to name children on orders: 
•    the two parents have an ongoing parenting dispute
•    the parents are required to have a co-parenting arrangement for some time 
•    the children are young and there is a need for the parents to have ongoing contact. 

The court must be satisfied it is necessary or desirable to protect the child from associated domestic violence (committed against the child directly) or from being exposed to domestic violence (the child sees, hears, or otherwise experiences the effects of the violence) committed by the respondent.

Conditions

All domestic violence orders have two mandatory conditions regarding behaviour and two relating to weapons: 

• the respondent must be of good behaviour and not commit acts of domestic violence towards the aggrieved. 
• the respondent must be of good behaviour towards the named child and must not commit associated domestic violence against the child and must not expose the child to domestic violence. 

Any weapons licences held will be affected as a temporary protection order will suspend the respondent’s weapons licence and a final protection order will cancel any weapons licence. Respondents must give any weapons, and their licences, to a police officer within one day after the court makes the order or you get the order. Respondents to a domestic violence order can’t apply for a weapons licence for five years from the date of the order. 

The court can make additional conditions (if there is supporting evidence contained in the application) to further enhance safety. Some common conditions include the respondent must not:

• follow, or approach, or remain within a set distance (for example 50 or 100 metres) of the aggrieved or the named child at any place 
• contact or communicate with or attempt to contact or communicate with or ask someone else other than a lawyer to contact or communicate with the aggrieved, of the named child in any way. This includes contact or communication by telephone, text message, email or any internet or social messaging service 
• locate, attempt to locate, or ask someone else to locate the aggrieved or the named child
• use the internet or any other communication device (including social networking sites and ongoing mobile applications) to communicate with, publish pictures of or make adverse comments concerning the aggrieved or the named child
• monitor or track or attempt to monitor or track the movement or communications of the aggrieved or the named child by any means including electronically 
• attend at or go within 50 metres of the school or other premises were a child of the aggrieved attends for the purposes of education or childcare
• remain at, enter, or attempt to enter or approach to within 100 metres of the aggrieved or child’s usual place of residence, or the premises where the aggrieved or named child frequents, such as a workplace
• remain living at the shared residence and must leave the shared residence (known as an ‘ouster’ condition). This condition usually includes an opportunity for the respondent to return with police to retrieve personal property. 

To seek these additional conditions, there must be specific evidence (it has happened in the past or there is a direct threat for a relevant behaviour or action will occur) as to why these are necessary or desirable. 

Breaches of the order

These are civil orders and can be applied for directly by the victim-survivor, by the police or by another authorised person. However, breaches of a domestic violence order are a criminal matter, meaning that a thorough investigation must occur for charges to be laid. Therefore, getting a domestic violence order against you as a respondent won’t give someone a criminal record, but being found to have breached the order will.

When a domestic violence order is in place, if the respondent doesn’t follow the conditions set out in the order, the police can charge them with a criminal offence. These orders can help protect a child in the following ways:

Cross orders

The Domestic and Family Violence Protection Act 2012 requires police and courts to determine the person ‘most in need of protection’ when making orders. However, it is still common to see cross orders or cross-applications being made where both parties are listed as aggrieved and respondents. 

Usually, cross orders are made because the police had trouble determining the person using violence and the person most in need of protection and have decided that they will apply for orders for both, leaving the court to decide. The courts then make the orders on the grounds that police have made an adequate assessment. 

Alternatively, cross orders can be made when the person using violence has applied for an order privately to manipulate the system or to retaliate against an order made in the victim’s favour. This is an example of systems abuse.  

Regardless of the reason, the presence of a cross order alerts us to the need for comprehensive assessment and perpetrator pattern mapping to make the right decisions. Cross orders also serve as a flag that systems abuse may be occurring, and to remind us to assess this. 

Domestic violence orders and parenting arrangements 

It is not the role of a domestic violence order to determine the parenting arrangements, however, they do intersect and can be managed to work together. 

When the domestic violence order is made first, and subsequently a parenting order is made, the domestic violence order may need to be altered to include relevant exceptions to the listed conditions to enable the parenting order to function. For example, a no-contact restriction may be altered to allow the parents to exchange the care responsibility of the child, to comply with ‘spends time with’ requirements of the parenting order. 

When a parenting order is in place and a domestic violence order is sought, the court considering the application for the domestic violence order may vary, discharge or suspend the parenting order (using the Family Law Act 1975, section 68R) if they deem compliance with the parenting order would place the child at risk of violence and this is based on information the Family Court did not have when the parenting orders were made. This power in section 68R is intended to be used to ensure a parenting order is not inadvertently exposing the child to domestic and family violence. 

Domestic violence orders and child protection proceedings

During the course of hearing a child protection proceeding, the Childrens Court may make a domestic violence order (or a temporary domestic violence order) against a parent of the child who is subject to the child protection order application.  They must be satisfied a domestic violence order could be made against the parent and the person named as the aggrieved in the domestic violence order is also a parent of the subject child.

This can be initiated by the magistrate, the applicant (Child Safety or the DCPL) or by a party to the child protection proceedings (which includes the child). 

The Domestic and Family Violence Protection Act 2012, section 43 makes provision for the Childrens Court to make or vary a domestic violence order against a child’s parent if the court is hearing a child protection proceeding.

For this to occur, Child Safety can instruct OCFOS to seek or vary a domestic violence order when a court assessment order is before the Childrens Court, or during the proceedings for a child protection order through discussion with the DCPL. This should be done in partnership with the adult victim and may be a safer option for her, than taking out a private application. 

Child protection orders

How child protection orders and domestic violence orders work together

The orders under the Child Protection Act 1999 and the Domestic and Family violence Protection Act 2012 are both made according to state legislation neither order takes precedence over the other. When an emergent order (TAO, CAO, TCO) or child protection order is being sought, it is necessary to determine any domestic violence orders in place and the conditions attached to the orders to proactively avoid placing a parent in breach of any order.

For example, if a domestic violence order includes a no contact provision between the person using violence and a child, but the CSSC is supportive of the person using violence having supervised contact with this child under a child protection order, this would place the person using violence in breach of their domestic violence order, if they attended the contact visit supervised by the department.

The Domestic and Family Violence Protection Act 2012, section 43(3) requires the Childrens Court to check for inconsistencies with any domestic violence orders and adjust the domestic violence order if necessary to prevent the inconsistency identified. 

Redacting sensitive information within court material

When preparing materials for child protection court proceedings, it is essential to prioritise the safety of the person experiencing violence. Careful attention must be given when drafting court documents to ensure sensitive information is not included, as it could jeopardise the safety of the victim and her child. For example, accidentally providing the victim’s address or whereabouts, or providing details of locations where the victim and her child frequently attend, such as schools or counsellors. 

The Child Protection Act 1999, section 191 allows for certain information to be kept confidential if, its disclosure would be likely to endanger a person’s safety or psychological health. Refer to Identify sensitive information. 

Precautions for serving court material

Whilst there are legislative obligations to serve court material on parents’, precautions can be taken to protect the person experiencing violence and her child from the person using violence during this process. For example:

• serving court material on the mother at a location away from the person using violence
• speaking to the mother on her own about the content contained within the court material
• exploring options for where and how the person experiencing violence can store the materials to prevent the person experiencing violence from accessing her copies
•  serving court materials (initial and any subsequent affidavits) on the legal representatives. This aligns to the Children Court Rules 2016, which requires all court documents to be served on a parent’s legal representative if the parent is legally represented. 

Family law orders 

When engaging with families where there is domestic and family violence and separation has occurred or is planned, the arrangements for a child can be determined by either parenting plans or parenting orders. 

Exploring what arrangements exist and how the arrangement was made is important when considering any impact on the child protection intervention across the continuum.

Parenting plans

A parenting plan is a written agreement between the parents that sets out the care arrangements for the child. It is an informal way of agreeing on parenting arrangements and whilst there is no specific format, they must be signed and dated. 

A parenting plan is not legally enforceable, and there is no way to enforce following the plan for either parent as such, it does not create any legal scaffolding around the child. 

This arrangement is generally used when there is agreement between separated parents and the arrangements present no risk to the child. 

It may be registered with the Family Courts via the Court Registry as an administrative process, which can be useful as a record of intention if further court processes eventuate but doing this does not provide any additional security.

Parenting orders

This legally binding arrangement under the Family Law Act 1975 is suitable when agreement cannot be reached between the separated parents, or the matter is more difficult or complex. For example, when child abuse or family violence issues exist. 

These orders may state conditions to set out rules for communication, time with each parent, where and with whom the child lives, allocate parental decision-making responsibilities, and can also include any other aspect of care, welfare and development of the child, or parental responsibility for the child. 

An application for a parenting order can be made by a parent, or any person with standing under the Family Law Act 1975 (for example, a grandparent). The court can deal with matters very urgently and in the absence of the other party (ex-parte) if required. 

These orders can be made by consent, or after a hearing by a court and are legally enforceable.

Courts are sensitive to matters where a parent may be using systems to continue to perpetrate violence against the other parent. For example, the person using violence and/or coercive control may file unnecessary applications, motions, or multiple affidavits, seeking variations to orders or engage with multiple systems or courts to create a sense of chaos and exhaust their partner emotionally and financially. 

The court will take steps to ensure the requirements for procedural fairness and access to justice are met while protecting a person from experiencing further abuse through the other party’s misuse of these systems. 

The court can ensure the matter remains listed before the same judicial officer who can be alert to and: 

• identify conduct that does not advance the matter
• seek a dismissal of all or part of the proceedings because they are frivolous, vexatious or an abuse of process 
• or declare the person a vexatious litigant.

When engaging with either parent, be careful of any advice or instructions provided which may place a parent in a position where they are not complying with a court order. If this arises, seek advice from OCFOS as child protection orders may be required. 

Proactive and reactive information sharing with family court with high risk domestic family violence

The Family Court has a specialist list (the Evatt list) developed to ensure high risk cases (those involving domestic and family violence) are well managed and have a specialised pathway through the court where the most vulnerable families are provided with resources and their matters are dealt with efficiently and effectively minimising risk or further trauma and harm.

Court staff and judicial officers are specially trained to manage these cases. Parties to matters are asked to identify the risk of violence or violence that has occurred in their documents submitted to court. 

Using the Court Services Unit - Family Law team, Child Safety can: 

• actively reach out to the court where there are current parenting proceedings, to suggest the court request information from Child Safety, by way of a report (Family Law Act 1975, section 67ZBD), or by way of information release (Family Law Act 1975, section 67ZBE). 
• seek to appear in Family Court matters as friend of the court to actively share information with the court during mentions or interim hearings. 
• The family court can also request information of its own volition from Child Safety at any stage of the proceedings. 

The family court can also request information of its own volition from Child Safety at any stage of the proceedings. 

Support for visa holders

The Australian Government has zero tolerance for domestic and family violence against anyone, including permanent or temporary visa holders. 

If someone is experiencing domestic and family violence and they are concerned about their visa status, contact the Department of Home Affairs.

It’s important to remember that only the Minister or a delegated officer has the power to refuse or cancel a person’s visa.