QLD Parenting Trial Before Domestic Violence Hearing?

[Rod]

Family law is federal law. It over-rides state law.

Sorry Sammy, no it doesn't when dealing with Family Violence and intervention orders. The Family Law Act explicitly gives State courts the power to change parenting orders in certain circumstances. Family violence is the circumstance.

Now whether QLD family violence laws can be used is the real question.

In Victoria the answer is an unequivocal yes, an IVO can trump parenting orders made in the FCA and FCC.

So, check with your QLD lawyer if QLD laws allow the override.

I note the link you posted for NSW says the local court can vary the parenting orders, but it is unclear to me to what extent. I'm not in NSW and don't know.

 

[sammy01]

GGRRRR Family law is Federal. It's the constitution.In summing up, it's the constitution, it's Mabo, it's justice, it's law, it's the vibe and aah no that's it, it's the vibe. I rest my case.
I have provided two sources from two different states that say family law orders trump state orders. WHY? because federal law trumps state law. Section 52 of the constitution deals with this. IT is the vibe man...
So feel free to tell me I'm wrong. But provide a source to allow the OP to work it out for themselves.... it's the vibe. I rest my case.

 

[sammy01]

This is madness. So hypothetically, I get my family court orders. Requiring all the bells and whistles, ICL, Family Report Writer. A year of mentions before a trial date. Affidavits and all that. If the ex is particularily nasty, I have not seen my kid for months on end OR LONGER from time of separation to mediation to mediation to first mention, to second mention when interim orders are made. MONTHS NO ACCESS TO MY KID....FInally, after all that there is a trial. Evidence all tested and orders come down I get to see my kid 5 nights a fortnight. REMEMBER really nasty ex... So after the ink dries on the family court orders she makes a scene at the first change over. Goes to the cops, who will rubber stamp an avo that protects the ex and the kids. All of a sudden I'm back to square 1. Given that in NSW for example the theshold for an avo is the "balance of probability."
The decision
Now based on 4/5's of stuff all evidence, I'm back not seeing my kids? until the avo is dealt with or expires... Oh now the fun starts. I can't afford to fight this, not after spending $$ on the family law stuff. So I accept without admission. AVO for 1, nope 2 yrs. When it expires what then? ex lets me see the kids? HELL NO. She explains that after 2 yrs with NO CONTACT The kid the family court orders need updating... Back to mediation, trial, another year or so..... Betcha the ex will be straight to the cop shop after the next change over, which would be roughly 3 yrs since the last.... this is nonsense. Why?
Here is the answer

Family law is federal law, their orders trump state law. I have backed up everything I've said with reputable sources. Prove me wrong and provide a reliable source to prove me wrong.

 

[Rod]

OK Dennis-- you are wrong in this instance.

Although generally what you say is correct.

The reason why you are wrong is s 68R Family Law Act 1975.

 

[Rod]

All of a sudden I'm back to square 1

Yep.

And keep in mind even the link you posted giving NSW information says state law can override parenting orders.

That is now two sources of information.

And yes, it takes a bit to get used to.

Is it madness for most people - yes.
Is it madness when a person become violent after parenting orders are made - no.

 

[sammy01]

ooh, Ok I think you have me... But Rod, what do you think, does an AVO automatically suspend family orders? OR does the applicant have to ask specifically for that to be one of the orders of the avo?

 

[Rod]

That is a very interesting question.

You would need to read and understand each State's laws on family violence, which are changing almost yearly at present, to know the answer.

Normally the family law parenting order will take precedence where there is a direct conflict and the AVO makes no mention of parenting orders. But laws are changing so quickly these days I'm not 100% confident this still stands.

Also keep in mind the magistrate in state matters doesn't usually decide on residence for children and will normally only look at how changeover occurs. This is a difficult area of law and why lawyers are needed when IVO/AVO matters involve children. I no longer think IVO/AVOs are DIY when contact with children is important.