orders and child contact

Where there is a restraining order in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system.  If a court makes a residence/contact order that conflicts with a restraining order, the residence/contact order takes priority.  The restraining order will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.

For example, if you have a contact order that gives the father contact on weekends but the restraining order only allows contact between the father and child on Saturday, you have a conflict about contact on Sunday. The contact order will over-rule the restraining order and contact will happen for the entire weekend.

This situation can weaken the restraining order and also make it more difficult for the Police to enforce.

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 order or has an application currently before the Family Court, she should tell the magistrate at a hearing for a violence restraining order about this for the following reasons:

  1. A family 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 violence restraining order, try to seek legal advice about whether these laws apply to you before you apply for your family violence order.