QLD Breach of Family Court Orders - What to Do?

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Bill Murray

Well-Known Member
6 June 2018
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disagree.
So we're clear here - She made accusations of violence, and alcohol as a contributor... It was never tested by the court, just accusations. Based on that you guys reckon my family court orders should dicate that I can't drink ever again, when the kids are with me?

You accepted the order.
 

AllForHer

Well-Known Member
23 July 2014
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You accepted the order.

He accepted the AVO, which is a state matter. Parenting orders overrule AVOs because they’re federal matters.
 

Bill Murray

Well-Known Member
6 June 2018
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He accepted the AVO, which is a state matter. Parenting orders overrule AVOs because they’re federal matters.

Who cares - the AVO conditions apply in conjunction with the parenting orders/family court orders. It's also not that simple.

They work hand in hand. If you have family court orders stating you can have the kids on weekends but a DVO (Queensland doesn't have AVOs, but I accept the person who commented is in a state which does) which has a condition that you can not consume alcohol when in the presence of the kids you can and will be breached on the DVO. The existence of a parenting order doesn't negate the conditions on a DVO. If there are inconsistencies then any order made under the family law act will override the condition in the DVO however a magistrate can vary a parenting order when a DVO is put in place to align them. A magistrate in QLD can also suspend a parenting order when putting in place a DVO.
 

thatbloke

Well-Known Member
5 February 2018
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He accepted the AVO, which is a state matter. Parenting orders overrule AVOs because they’re federal matters.
Erm, no. Orders made on a DVO that have anything to do with children or communication will usually say words to the effect of "Unless by order of the family law court" or something like that so that, despite the DVO, family court orders are workable.

So if a DVO order is made that a parent has no contact by email with another parent but a family law order says communication by email, then communication by email is allowed as per the family law order. DVO orders are not simply negated or overwritten by another court the family law orders have to be specific.

In this specific case being spoken about in the past few posts there would have to be a family law order that actually said "the parent is allowed to consume alcohol" to negate an order of a DVO prohibiting the same

If i am wrong, im happy to eat my hat. Actually, im happy to eat it anyway, it is made of Strawberry Liquorice
 

Bill Murray

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6 June 2018
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You're not wrong - that's exactly how it works. The family law orders only override DV orders where the conditions conflict. That said, if everyone has done their jobs properly then they should rarely conflict. Where a conflict will arise a state magistrate should modify the family law order to suit the DV order if the condition is a necessary one. A family court magistrate must consider the conditions on a DV order when putting in place a family law order. If they fail to do so then the quickest way to fix it is to put in an application to vary the DV order (vary it by something reasonably minor) and ask the DV magistrate to vary the family law order as well... Cheaper, quicker.
 

Nonfiction

Well-Known Member
17 May 2018
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The family law orders only override DV orders where the conditions conflict. That said, if everyone has done their jobs properly then they should rarely conflict.
Agree

Where a conflict will arise a state magistrate should modify the family law order to suit the DV order if the condition is a necessary one. A family court magistrate must consider the conditions on a DV order when putting in place a family law order.

True, but returning to your point of “...if everyone has done their jobs properly...”.

Approaches taken towards ensuring consistency between orders of the two jurisdictions are applied differently.

Where children are involved and there are no Family Law orders, Magistrates will often already take the approach to include into the DV order provisions allowing for inconsistencies (e.g. for spending time) that may arise in later family law proceedings. Where Family Law orders are already in place, and DV occurs, Magistrates will take into account the family law orders and suspend, revoke or vary the family law orders accordingly.

In family law, DV/DV orders are only 1 of a number of considerations judges must take into account. Unless the litigant seeks specific orders that align the orders of the State Court with the family court orders (or presses the DV), e.g. by seeking an injunction restraining a parent from consuming alcohol when the children are in their care etc., more often than not, judges will take the approach of not making any order in this regard at all. Thus these protections will only be offered by the DV order leading to a need for the litigant/protected person to return to a second system.

I am mindful of the practical difficulties that could arise in suggesting this, but in my view, a far more logical approach, to save litigants from having to repeatedly return to different Court systems, would be for judges of the family courts to actually make specific orders that align with the DV orders of the State Courts and for the penalties of breaching those protection orders to be consistent between the two jurisdictions. However, in circumstances where DV’s have been consented to without admissions...without further supporting evidence and the evidence being tested at trial (which will not happen if parties enter into consent orders), judges would likely be reluctant to make such orders...especially when the Magistrates Courts are equipt to deal with these issues and such orders could lead to the institution of further proceedings.


If they fail to do so then the quickest way to fix it is to put in an application to vary the DV order (vary it by something reasonably minor) and ask the DV magistrate to vary the family law order as well... Cheaper, quicker.

See my suggestion above. Further, Family Law proceedings, especially when domestic/family violence is a factor, can take in excess of 18 months to finalise. My understanding is that there is a 5 year minimum for DVO’s in QLD? With a 5 year order in place, returning to the Magistrates Court would certainly make your suggestion a more practical and cheaper solution. However, for litigants from other States, where no (extensive) DV minimum applies, such as in NSW (12 months?) it would likely be more practical for litigants to instead seek Interim orders (and possibly Final Orders also) consistent with the DV order...as the State Order will likely expire prior to the family law proceedings being finalised.

Another factor not considered is that judges of the family courts rarely take kindly to litigants, including those protected by State DV orders, making “attempts” to override (vary) their orders. Especially when proceedings are still afoot.
 

Bill Murray

Well-Known Member
6 June 2018
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I don't deal with the family court so I can imagine you would cop an absolute roasting if you bypassed them and had a DV magistrate vary their order without a very good reason.

And yes, I forgot not every state does 5 years. That really needs to be fixed, they should be aligned nation wide as it is already causing issues with NSW magistrates being overly willing to vary a QLD order down to 12-24 months due to the interstate order changes recently.

Your post is pretty spot on :) Ultimately it'd be great to see the family court fixed to remove these absurd time frames, simplify the system. Unfortunately I think it'd be great to see but haven't a clue on how it would ever be practically achieved.
 
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