Family Law: How does a Family Violence Restraining Order affect Family Court proceedings?
What is an FVRO?
A Family Violence Restraining Order (“FVRO”) makes it unlawful for a person to do certain things, such as approach where the protected person lives, works or is educated, communicate with the protected person, go within a certain distance (eg. 50 meters) of the protected person or tag them in posts on social media, among other things. The purpose of a FVRO is to prevent family violence and/or prevent children from being exposed to family violence.
A FVRO can extend to protecting the children of a relationship, however, it cannot address parenting arrangements.
Although a family violence restraining order is a civil matter, breaching the terms of a FVRO is a criminal offence.
This article will address a few ways in which family violence restraining orders can affect Family Court proceedings.
How can an FVRO affect Family Court proceedings?
If you have Family Court proceedings on foot, (or expect they will be commenced) and there is a FVRO in place, it is imperative that you obtain legal advice.
A FVRO can affect Family Court proceedings in numerous ways, including but not limited to the following:
Family Dispute Resolution
Generally, it is a requirement of the Court that parties to Family Court proceedings attempt to resolve their conflict and arrange a parenting plan through family dispute resolution (“FDR”). Unless certain exceptions apply, parties will not be allowed to commence Family Court proceedings unless FDR has been attempted.
A FVRO is one exception to the FDR requirement. If a FVRO is in place, an exemption may be granted so the parties do not have to take part in FDR. You will need to read the conditions of the FVRO carefully as each case is different. The exceptions to a FVRO are listed in Part B of the document.
A FVRO will affect Family Court proceedings that involve children, because the Court’s paramount consideration is always the ‘best interests of the child’. Therefore, if the child/ren would be at risk of violence, or at risk of being exposed to violence, in the care of one party, that party may not be granted contact time with the child/ren. Alternatively, the party bound by the FVRO may need to be supervised by a supervision agency or mutually agreed third party when spending contact time with the child/ren.
If there is a FVRO in place, it is important to be mindful of its restrictions when negotiating family law disputes. In most cases, the FVRO will prevent communication between the parties, however, there may be an exception in this regard. An exception may say the parties can communicate with respect to their family court proceedings only, or it may say the parties may only communicate through legal representatives. Again, it is important to read your FVRO carefully in this regard.
Similarly to communication, handover may be affected by a FVRO. Usually, FVRO’s prevent one party from approaching the other, or from going near where the other lives, works or is educated. This can have obvious implications with regards to the handover of children. Again, sometimes the FVRO may have an exception that says in the case of handover, the parties can approach each other, or it may say handover needs to occur in a neutral area, for example.
Relationship between FVRO’s and Family Court Orders
A Family Court Order can override a FVRO to the extent that there are any inconsistencies between the Family Court Order and the FVRO, as per section 68Q of the Family Law Act 1975 (Cth). This means if the FVRO says one party cannot approach within 50 meters of where the other party lives, (with no exceptions) and the Family Court Order says the parties may approach the residence of the other for the purpose of handover, then the Family Court Order will prevail.
Relationship between FVRO’s and parenting plans
A parenting plan is not a Court Order; it is an arrangement reached by the parties with regards to parenting matters such as contact time, communication and handover, for example. Unlike a Family Court Order, a parenting plan cannot override a FVRO.
So, if the parenting plan says the parties can approach the residence of the other for the purpose of handover, but the FVRO says they cannot, the FVRO will prevail, (unless the FVRO itself includes an exception that allows it).
For this reason, it is important to be mindful of the FVRO when arranging a parenting plan.
Purpose of FVRO’s
FVRO’s exist to protect people who fear for their safety, or for the safety of their child/ren. FVRO’s must not, however, be used as a tactic to frustrate the other party to Family Court proceedings. If a party attempts to use a FVRO as a way to frustrate the proceedings, this may be weighed against them in court.
It is also important to consider the costs associated with FVRO’s. If you have Family Court proceedings and a FVRO on foot, they will be dealt with separately (and in different courts), thereby increasing your legal costs. Therefore, we stress the importance of only seeking to obtain a FVRO if you legitimately fear for your safety or that of your child/ren.
Furthermore, Family Court Orders are able to provide very similar protections to that of FVRO’s. The main difference is that breaching a FVRO is a criminal offence, and therefore criminal sanctions apply to breaches, whereas they do not apply to breaches of Family Court Orders.
If you or your child/ren are experiencing family violence or are at risk of family violence, we highly recommend you seek legal advice as soon as possible.
At Lynn & Brown Lawyers, we have an expert team of family lawyers who are able and willing to assist with any of the issues mentioned in this article. Each case is different and there is no one-size-fits-all solution, making it important to obtain legal advice about what is best for you and/or your child/ren in your specific circumstances. Contact us today.
*** If you fear for your safety or that of your child/ren, you should contact the police.
About the authors:
This article has been co-authored by Chelsea McNeill and Jacqueline Brown at Lynn & Brown Lawyers. Chelsea is in her fourth year of studying Law at Murdoch University. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.