Inconsistencies between Parenting Orders and Family Violence Orders

The Family Law Courts take allegations of family violence very seriously. When making a parenting order, the Court must ensure that its orders or arrangements do not expose a person to family violence, but at the same time respect a child's right to have a meaningful relationship with both parents if it is in the child's interests. It is possible however, for the Courts to make orders and arrangements that provide for a child to spend time with or communicate with a person that are inconsistent with a family violence order. A family violence order is generally made under a prescribed law of a state or territory to protect a person from family violence.

To the extent of any inconsistency with orders made under the Family Law Act 1975, the family violence order is invalid.

In the case of Dunst & Dunst [2014] FamCa 964, the Family Court considered whether the five children should spend time with their father in circumstances where the father posed an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence, and where there was a current apprehended violence order in place which precluded the father from approaching or contacting the mother by any means whatsoever, except through his lawyers. The children were not named as protected persons on the order but may still have been "protected persons" because of their domestic relationship with the mother.

The mother and the children had been living in hiding from the father since separation in March 2012. The mother sought orders which would eliminate the father from the children's lives completely. The father originally sought orders that the children live with him, but then he abandoned this position, and pressed for orders for the three youngest children to spend regular extensive periods of time with him. He acknowledged the two eldest children were estranged from him.

The Court determined that the evidence satisfactorily established that the father did pose a risk of harm to the children, and that the only safe alternative was to eliminate all personal contact between the father and the children, and only preserve a line of communication between them.

The communication was limited to the father being able to send letters, cards, and gifts to the children on their birthdays and Christmas Day; and for the mother to send the father written acknowledgement of receipt of the father's written communication; and any letters, cards, photographs, or other written communication that the children, or any of them, wished to send to the father.

The Court was required to address the fact that the orders made for communication between the father and the children were at odds with the apprehended violence order protecting the mother. The Court noted that it is empowered to make parenting orders that override the terms of the apprehended violence order, but should only do so if it is necessary to promote the children's best interests. The Court found that it was in the children's best interests to maintain occasional written communication with the father, and to therefore make parenting orders which were potentially inconsistent with the apprehended violence order.

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