Where there is a Protection Order in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system. If the Family Court makes a residence/contact order that conflicts with a Protection Order, the residence/contact order takes priority. The Protection Order will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.
Under the Family Law Act, all state and territory orders are described as family violence orders. Such orders may forbid one parent from coming within a set distance of another parent or stalking or harassing them.
Sometimes the Family Court or Federal Circuit Court makes an order or an injunction that is inconsistent with the state or territory order (see Sections 68P and 68Q of the Family Law Act). Under the Family Law Act, family violence orders can allow parties to come into contact with each other only for:
•delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or
•enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings.
If a Woman has a Family Court contact order or has an application currently before the Family Court, she should tell the magistrate at a hearing for a domestic violence protection order about this for the following reasons:
1.A domestic violence order must be consistent with a Family Court contact order. If it is not then the Family Court order will be the dominant order and must be abided by.
2.A magistrate cannot usually make orders about children in relation to residence, contact and specific issues if there is any dispute between the parents. However, if a Woman applies for a protection order or a variation of her protection order, then the magistrate may at the same time make or vary the terms of her existing Family Court contact order to make it safer for her and the children when contact takes place. The magistrate can also discharge or suspend an existing Family Court order, if among other things, the magistrate is satisfied it would be too unsafe for the Woman or her children if contact continued.
If you have Family Court contact orders in place before you have a domestic violence protection order, try to seek legal advice about whether these laws apply to you before you apply for your protection order. QldWLS
Varying or revoking an order
Applications to change, cancel or extend an order can be made to the Magistrates Court by the aggrieved spouse, a person authorised by the aggrieved spouse, the respondent or the police.
A Woman may need to change her order and/or add or remove conditions if her circumstances change. For example the respondent may start telephoning her at work and the protection order may not address this problem.
If the order is due to expire and the Woman feels that there is still a likelihood of violence, she can apply to have the order extended beyond the normal two year time period.
A Woman can apply to vary the order at anytime during the life of the order. However, if the order was a police application it is best for the Woman to approach them directly to discuss her concerns.
If a Woman finds that the order is no longer of use because hey have reconciled, then she could apply to revoke the order. However, it is not uncommon for the violence to reappear. Instead of revocation, protection can still be retained by varying the order. For example, by removing the condition, which prohibits attendance at her home but keeping the other conditions. Again, if the police have sought the protection order for the Woman then it is up to them to revoke it, and often they will be unwilling to do this if they believe the Woman may be in danger.
When hearing an application to revoke a domestic violence order the court must consider:
The wishes of the aggrieved spouse
The current relationship between the aggrieved spouse and the respondent spouse, if any, and
Whether the aggrieved spouse has been pressured or threatened in relation to making the application for revocation.
If the court considers that revoking the order would compromise that safety of the Woman or any other aggrieved person, the court may not revoke the order. However, the court can consider varying the order so that the safety of the Woman is not compromised.