Last updated 14 March 2022

There is often a need to resolve parenting issues at the same time as there is an application for a domestic violence order.

Orders about parenting arrangements after separation are made in the Federal Circuit and Family Court of Australia.

How the Domestic and Family Violence Protection Act interacts with the Family Law Act

Family law orders are recognised in the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act).

Both pieces of legislation recognise the interrelationship of domestic and family violence (DFV) and associated parenting issues. The DFVP Act acknowledges this interrelationship by giving the magistrates courts the power to consider a family law order and to consider whether to revive, vary, discharge or suspend the order when making or varying a domestic violence order (s 78 DFVP Act).  The DFVP Act makes it clear that the court must not diminish the protection given by the domestic violence order to facilitate the family law order. 

The Family Law Act 1975 (Cth) (Family Law Act) recognises the state domestic violence orders by giving them power to review family law orders.

Parenting orders that are made in the Federal Circuit and Family Law Court will override any inconsistent conditions in a domestic violence order because federal laws override state laws. To remedy this situation, s 68R of the Family Law Act provides state courts, including Queensland magistrates courts, with the power to amend parenting orders to remove inconsistencies between the family law order and the domestic violence order to ensure that an aggrieved and their children are protected from violence. The DFVP Act specifically refers to s 68R of the Family Law Act and directs the court to consider making, suspending or varying parenting orders to ensure that they are consistent with the relevant protection order.

Domestic violence and the Family Law Act

If any party has fears for their or their children’s safety at court, there are safe rooms available in many registries and sometimes arrangements can be made for separate entry and exit points. Parties may also be able to attend court by telephone or by video.

The Federal Circuit and Family Court of Australia in Brisbane now has the Lighthouse Project, which is an approach taken by the court to screen for risk with a primary focus on improving outcomes for families involved in the family law system. Families are asked to complete a questionnaire when they first file an application, which is used to assess risk and then used to manage the case according to the risk reported by the parties.

The Family Law Act acknowledges domestic and family violence (referred to as family violence) and its relationship with parenting orders by:

  • providing a broad definition of family violence and abuse, which includes coercive and controlling behaviour
  • requiring the court to consider whether a domestic violence order has been made when determining what is in the best interests of the child
  • requiring the court to look at the nature of the order, the circumstances in which the order was made, any findings by the court and anything that has been admitted in proceedings for the order, and any other relevant matter (s 60CC(3)(k) Family Law Act).
  • including in the definition of child abuse ‘serious psychological harm’, which comes from a child being exposed to domestic and family violence
  • directing a court to give the greatest consideration or weight to the need to protect a child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(a) Family Law Act)
  • requiring advisors (including lawyers) to advise their clients that the best interests of the child is the paramount consideration when deciding how to resolve a parenting dispute. Where the child is at risk of harm, the advisor has to instruct parents that this should be given greater weight over the benefit of a meaningful relationship with both parents (s 60D Family Law Act)
  • requiring parties to parenting disputes to file a Notice of Abuse in every case where family violence is alleged outlining any allegations about the existence of family violence or child abuse (s 67ZBA Family Law Act)
  • improving the ability of child protection services to participate in family law proceedings
  • referring to the United Nations Convention on the Rights of the Child as an object of Part VII.