What are s68R orders?

A s68R order, sometimes referred to as a family violence order, allows courts to alter previous decisions or agreements to prevent potential violence, or ensure the best interests of children involved in a parental dispute.

It can be issued by a court to protect an individual involved in a family law case from the potential of harmful or intimidating conduct, or where changing circumstances require attentive oversight of previous court orders. 

The s68R order is a powerful tool provided for by section 68R of the Family Law Act 1975, and was passed on the Federal level to protect those who may be at risk of domestic violence or abuse.

It allows a court to modify or overturn previous court decisions, and is intended to safeguard the safety and well-being of the person it is protecting.

In less extreme cases, it may also allow a court to modify recovery orders, parenting orders, or other particular orders involving child custody or visitation. Other terms may also be altered, such as specific visitation times, or shifting conditions and intermediaries surrounding transferring supervision of children. 

When are s68R orders made?

It is the duty of a court to ensure the safety of all individuals involved to the greatest degree possible, and as such, it may make the order based on its own discretion, or when in response to an application by a party to the case.

This form of order is primarily set out by a Federal Family Court, but may also be issued by lower courts when new evidence of violence becomes available. This judicial mechanism is aimed explicitly at preventing previous court orders from facilitating cycles of abuse, creating flexibility and reactivity of court orders, via adjusting or entirely overturning previous decisions.

Tools of over site include discharging or initiating an existing parenting order, an injunction for personal protection, or a parenting plan, particularly in circumstances where evidence of serious threats of violence becomes apparent to a court which was not apparent at the initial hearing.

Local or State Courts making s68R orders

While there are concerns that the s68R order is often underutilised. A local court magistrate does have the power to make a s68R order, however it has been noted that they often may not have the time, resources, or expertise to evaluate the situation conclusively.

It is thus possible for a s68R order to be made ‘in interim’, meaning that it will only have effect for a particular period until the federal family court may address and reevaluate the case.

The norms surrounding how lower courts utilise the s68R powers may vary by state or provincial jurisdiction due to concerns that the order may be used where one party is merely dissatisfied with an existing arrangement.

However, it is generally accepted that where new evidence of violence is available, it is imperative that magistrates be able to address the issue, before any potential violence can ensue. 

Orders commonly subject to s68R

Parenting order

A parenting order is a legally binding document that outlines the rights and responsibilities of a parent or caregiver concerning a child’s care, welfare and development.

It lays out the specifics of how a child is to be raised, including issues such as living arrangements, communication with the other parent, and decision-making power on such issues as education and healthcare.

In essence, a parenting order serves as an instruction manual for co-parenting and seeks to ensure the best interests of the child are upheld amidst the challenges and complexities of separated families.

Apprehended Violence Order (AVO)

An Apprehended Violence Order (AVO) is a document that provides protection to individuals who fear for their safety or well-being due to another person’s threatening or violent behaviour.

It is a tool that empowers those feeling threatened or intimidated to take action and secure their safety, for example by legally restricting the other party from initiating contact with the protected party. 

Recovery Order

A Recovery Order may be issued by the court requiring the return of a child, and often directs law enforcement agencies to take specific steps to recover the child. The order is issued in cases where one parent or guardian has taken the child without the consent of the other parent or guardian, or is in violation of a custody agreement.

When are these orders necessary?

There are many different times when a s68R order becomes necessary, such as when violence escalates, or logistical factors shift.

There may also be bureaucratic inconsistencies which require the use of such an order. For instance, when there are inconsistencies between Apprehended Violence Orders (AVOs) and Parenting Orders. Such contradictions may entail that one parent is not allowed to approach the other’s residence, yet is also required to pick up their children from the same address.

Considering how different orders interact, such a situation may force one parent to be exposed to potential violence from the other, or may create significant logistical burdens.

These orders are intended to deal with just such a case, and provide a basis for ensuring the safety of all involved, such as by specifying third parties for handover agreements, that allow parents to avoid contact. 

This explanation is only a brief introduction to the topic. If you are dealing with a situation where you fear domestic violence, or need tailored legal advice, then feel free to reach out to us.