When a matter is before the Federal
Magistrates Court regarding children's issues, it is important the
Court is made aware of any family violence issues. This includes
any intervention orders, formerly knows as 'restraining orders',
that are either already in place or not yet in force. This enables
the Court to attempt to strike a balance between protecting either
a parent or child from family violence and also the child's right
to spend time with both parents.
Where an order is made by the Federal Magistrates Court relating
to children and it is not consistent with an intervention order,
the Court is required to provide reasons for their decision.
However, in accordance with Section 68Q of theFamily Law Act 1975,a
family law order will always override an intervention order.
For example, if there is an intervention order in place between
a mother and father stating that the father is not to approach the
mother's home but there is a family law order in place saying that
the father is to pick up the child from the mother's home at 6.00
pm on Saturdays, then the father will not be in breach of the
intervention order if he picks up the child at this time.
Where an intervention order is already in place before a
subsequent family law order is made and the Magistrates Court feels
that order may put the person who applied for the intervention
order or a child at risk of violence or abuse, the Magistrates
Court has the power to change or suspend the family law order for
up to 21 days. This is known as an interim intervention order.
However, in order to make these changes or suspensions permanent,
the Magistrates Court would need to demonstrate that it has new
evidence that was not presented to the Federal Magistrates Court
when the family law orders were made. This evidence would need to
regard a parent or child that has been abused or a child
potentially being at risk of abuse from a parent.
So you can see there is a lot to consider with the various
"orders" we've discussed. Need some more info or some help in
this area? We recommend you speak with the writer of this
blog, our Family Law Senior Associate, Ryan
Please note, this Blog is posted in Adelaide, South
Australia. It relates to Australian Federal legislation.