8 Child protection prohibition orders

Introduction

  1. 8.1 Sometimes a person who has completed a sentence following a conviction for a sexual offence involving a child might behave in a way that is lawful but of concern to the police or child protection authorities. Such behaviour could include contacting a child against whom the person has previously committed offences, or frequenting a place where grooming or other offending previously occurred, such as a municipal swimming pool or park.1 Other Australian jurisdictions have devised a mechanism which enables a court to place restrictions on this type of behaviour.
  2. 8.2 Child protection prohibition orders provide a preventative mechanism that permits a court to order that a registered offender2 not engage in certain types of behaviour or employment, go to certain places, or contact certain people. They are similar to other types of preventative orders made under the Family Violence Protection Act 2008 (Vic) and Personal Safety Intervention Orders Act 2010 (Vic). Victoria and Tasmania are the only Australian jurisdictions without existing legislation, or plans to introduce legislation, establishing child protection prohibition orders.
  3. 8.3 Such orders exist in New South Wales, Queensland, Western Australia and the Northern Territory, and operate to prevent a registered offender from engaging in specified conduct.3 Prohibition orders4 were introduced in New South Wales in July 2005,5 in Queensland in June 2008,6 and have been included in Western Australian and Northern Territory registration Acts since their commencement.7
  4. 8.4 While South Australia does not have prohibition orders, its Magistrates’ Court has the power to make paedophile restraining orders which are similar to prohibition orders.8 South Australia was the first state to introduce orders of this kind in 1996—10 years before its sex offenders registration legislation commenced operation.9
  5. 8.5 The Australian Capital Territory plans to introduce a child protection prohibition order scheme shortly.10
  6. 8.6 The Commission believes that child protection prohibition orders should be available in Victoria, as they would enable Victoria Police to take appropriate action to protect a child who may be at risk of harm from a registered sex offender without child protection authorities having to follow the existing practice of making a protection application in relation to the child.
  7. 8.7 While child protection prohibition orders restrict the freedom of movement of people who are living in the community after having completed a sentence for an offence involving sexual abuse of a child, they appear to be a reasonable and proportionate limitation to that important freedom if a judicial officer is required to balance the competing interests at stake in an individual case.11

How child protection prohibition orders are made

  1. 8.8 In all of the relevant Australian jurisdictions, the Commissioner of Police12 may apply to a court13 for a prohibition order. The court may make the order if:
  • the registered offender poses a risk14 to the lives15 or sexual safety of one or more children, or children generally, and
  • making the order will reduce that risk.16
  1. 8.9 In New South Wales, Queensland and the Northern Territory, the offender must have engaged in some kind of concerning behaviour before an order can be made. In these jurisdictions, there must be evidence that the registered offender’s conduct poses a risk to the lives or sexual safety of one or more children.17
  2. 8.10 In all of these jurisdictions, the court must consider a range of factors before making an order.18 In New South Wales, for example, these factors include: the seriousness and nature of the person’s past offences, how long ago the offences were committed, and the offender’s circumstances so far as they relate to the conduct sought to be prohibited.19

The current alternatives in Victoria

Child protection orders

  1. 8.11 In the absence of child protection prohibition orders, the Commission understands that in some instances the Department of Human Services, on discovering that a registered sex offender has moved into a house where children reside, may tell the child’s parent that either the registered sex offender must leave or a protection application will be made in relation to the child.20
  2. 8.12 Most child protection applications are commenced by child protection workers taking the child into ‘safe custody’—that is, removing the child from their home and bringing them before the Children’s Court or a bail justice within 24 hours for a hearing of an application for an interim accommodation order.21 The Commission understands that the Department of Human Services would then seek a supervision order from the Children’s Court, allowing the child to live with their parent on the condition that the named registered sex offender is not to live in the household. 22

Criminal offence

  1. 8.13 The Commission also notes that it is an offence under the Crimes Act 1958 (Vic) for a person who has been found guilty of particular sexual offences to be found loitering, without reasonable excuse, near a school, kindergarten, childcare centre or other place frequented by children.23 This is also a Class 2 registrable offence.24 The maximum penalty for this offence is five years imprisonment in some circumstances, and two years imprisonment in others.25
  2. 8.14 Although there would be some overlap between this offence and conduct that may result in an application for a child protection prohibition order, if they were introduced in Victoria, child protection prohibition orders are directed to conduct that may be lawful but is of concern to police and child protection authorities. Police could apply for a prohibition order if the conduct in question was not sufficient to warrant a prosecution for the loitering offence, or could not be proved to the criminal standard. Child protection prohibition orders also apply to a broader range of conduct than loitering in particular public places.26

Current interstate practice

  1. 8.15 Although statistics are not available about how many prohibition orders have been made in all other states and territories, it seems that these orders are being used sparingly in Western Australia and the Northern Territory.27 New South Wales Police and the Department of Families and Community Services are satisfied with how the orders operate in that jurisdiction, and confirm that these reduce the need for protective intervention by the Department of Families and Community Services.28

The Commission’s response and recommendations

  1. 8.16 Child protection prohibition orders would provide another important tool for protecting children from sexual abuse by restricting the activities of some registered sex offenders. They are a means of taking a targeted approach to preventing child sexual abuse that is likely to be far more effective than including all people convicted of particular offences in the Sex Offenders Register for an inordinately lengthy period.
  2. 8.17 These orders also promise less disruption for children at risk of sexual abuse by a registered sex offender. Permitting police to apply for a child protection prohibition order, that could result in a registered sex offender being removed from a nominated household, will probably mean that child protection workers will take fewer children into safe custody in order to shield them from the risk of abuse from an offender who has moved into their home. Child protection prohibition orders would assist the Sex Offenders Registration Act 2004 (Vic) to fulfil its purpose of protecting children from sexual abuse.29
  3. 8.18 As child protection prohibition orders are civil orders, the Commission considers the appropriate standard of proof to be the balance of probabilities. This is consistent with the approach in other states and territories.30
  4. 8.19 As Victoria Police would be responsible for enforcing child protection prohibition orders, the Chief Commissioner of Police should have the power to apply for these orders. If the Department of Human Services considers that a child protection prohibition order would assist them to resolve protective concerns in relation to a particular child or children, cooperation between Victoria Police and the Department of Human Services will be necessary.

Recommendations

36. The Sex Offenders Registration Act 2004 (Vic) should be amended to permit the Chief Commissioner of Police to apply to the Magistrates’ Court or the Children’s Court for a child protection prohibition order in respect of a registered sex offender.

37. The court should be permitted to make a child protection prohibition order in respect of a registered sex offender if:

  1. (a) having regard to the nature and pattern of the registered sex offender’s conduct, the court is satisfied on the balance of probabilities that they pose an unacceptable risk to the sexual safety of one or more children or children generally, and
  2. (b) making the order will reduce that risk.

38. In determining whether to make a child protection prohibition order, the court should be required to consider the following factors:

  1. (a) relevant findings of guilt for sexual offences involving children
  2. (b) how long ago those offences were committed
  3. (c) whether the nature and pattern of behaviour that the registered sex offender is currently engaging in is similar to behaviour which was preparatory to previous, relevant sexual offences involving children
  4. (d) the conditions of the registered sex offender’s sex offender registration order
  5. (e) any other matters that the court considers relevant.

 

Making child protection prohibition orders against young offenders

  1. 8.20 In all states and territories where prohibition orders exist, there are additional factors that the court must take into account when considering whether to make a prohibition order in respect of a registered sex offender who is under the age of 18.
  2. 8.21 In New South Wales, the Northern Territory and Western Australia, the court is required to take the educational needs of the person into account.31 In Queensland, the court is required to order an assessment report, which may include information as to the impact an order would have on the child’s accommodation, educational, health, cultural or social needs.32 In Victoria, the Children’s Court Clinic should provide the Children’s Court with a report of this kind before it makes a prohibition order in respect of a child.
  3. 8.22 Additionally, in New South Wales, a prohibition order may only be made against a child if the court is satisfied that ‘all other reasonably appropriate means for managing the conduct of the child have been considered before the order was sought’.33
  4. 8.23 Child protection prohibition orders may also contain conditions excluding a registered sex offender from their place of residence. This power extends to child registered sex offenders. In relation to family violence intervention orders or personal safety intervention orders sought against child respondents in Victoria, if the court proposes to exclude the child from their place of residence, it must take into consideration:
  • the desirability of the child being supported to gain access to appropriate educational services and health services34
  • the desirability of allowing the education, training or employment of the child to continue without interruption35
  • the desirability of minimising disruption to the child and the importance of maintaining social networks and support which may be lost if the child were required to leave their place of residence.36
  1. 8.24 Wherever possible, consistency with family violence intervention orders and personal safety intervention orders is desirable, as the Magistrates’ Court and Children’s Court already have jurisdiction to make intervention orders.37
  2. 8.25 The Commission considers that the safeguards for child respondents in relation to prohibition orders in other states and territories, as well as those from the comparable area of intervention orders, should be put in place if prohibition orders were introduced in Victoria.
  3. 8.26 Additionally, the Children’s Court must consider a number of factors when sentencing a child for any offence.38 These factors emphasise the desirability of allowing the child to remain at home and maintain their relationships with family, and the need to minimise stigma to the child.39
  4. 8.27 While a child protection prohibition order is not a sentencing order, many of these factors may be of assistance when the court is determining whether to make a prohibition order in respect of a registered sex offender who is a child.

Recommendations

39. In addition to the factors referred to in Recommendation 38, if the Children’s Court is considering whether to make a child protection prohibition order in respect of a registered sex offender who is a child, the Children’s Court should be required to consider:

  1. (a) the desirability of the child being supported to gain access to appropriate educational services and health services
  2. (b) the desirability of allowing the education, training or employment of the child to continue without interruption
  3. (c) the desirability of minimising disruption to the child and the importance of maintaining social networks and support which may be lost if the child were required to leave their place of residence, and
  4. (d) section 362(1) of the Children, Youth and Families Act 2005 (Vic), so far as it is relevant.

 

40. The Children’s Court should only be permitted to make a child protection prohibition order in respect of a registered sex offender who is a child if it is satisfied that:

  1. (a) all other reasonably appropriate means of managing the conduct of the child have been considered before the order was sought, and
  2. (b) the child will have appropriate alternative accommodation and appropriate care and supervision.

 

Conduct that may be prohibited

  1. 8.28 None of the Australian jurisdictions with prohibition orders place limits on the conduct that an order can prohibit, but all provide examples of the type of conduct that may be prohibited.40 They are:
  • associating with or contacting specified persons or kinds of persons
  • being in specified locations or kinds of locations
  • engaging in specified behaviour
  • engaging in specified employment or employment of a specified kind.41
  1. 8.29 The Commission considers it appropriate to leave the types of conduct that may be prohibited to the discretion of the court for determination on a case-by-case basis. As in other jurisdictions, the legislation should contain non-exhaustive examples of the types of conduct that may be prohibited, because it is impossible to predict all of the behaviour that might pose a risk to the lives or sexual safety of children.

Recommendation

41. A child protection prohibition order should be able to prohibit the registered sex offender from:

  1. (a) associating with or contacting specified persons
  2. (b) being in specified locations
  3. (c) engaging in specified behaviour, and/or
  4. (d) engaging in specified employment.

 

Maximum term of prohibition orders

  1. 8.30 In all of the jurisdictions, prohibition orders can be made for up to five years in the case of an adult offender, and up to two years in the case of an offender who is under the age of 18.42 The Commission considers these terms to be appropriate.

Recommendation

42. The maximum duration of a child protection prohibition order should be five years for adult registered sex offenders and two years for registered sex offenders who are under the age of 18. The duration of a child protection prohibition order should not exceed the period for which the sex offender registration order applies.

 

 

Consent orders

  1. 8.31 All of the jurisdictions permit prohibition orders to be made with the consent of the Commissioner of Police and the registered offender.43 In all jurisdictions except the Northern Territory, the court may make a prohibition order by consent without considering the factors it would otherwise be required to consider.44
  2. 8.32 The court is not required to conduct a hearing to make a prohibition order by consent unless it is in the interests of justice to do so.45 In determining whether a hearing would be in the interests of justice, the court may take into account whether the registered sex offender:
  • has received legal advice
  • has impaired intellectual functioning
  • is a person in respect of whom a guardianship order is in force
  • is illiterate or not literate in the English language
  • is subject to some other condition that may prevent them from understanding the effect of consenting to the order.46

If prohibition orders were introduced in Victoria, similar considerations should be open to the court.

  1. 8.33 In Queensland, the court may only make prohibition orders by consent in respect of adult respondents, not children.47 However, there are examples in Victoria where child respondents may consent to intervention orders, provided the court is satisfied of all of the same matters it would need to be satisfied of in a contested proceeding.48 This approach should be taken in relation to prohibition orders made with the consent of child respondents.

Recommendation

43. Child protection prohibition orders should be able to be made with the consent of the Chief Commissioner of Police and the registered sex offender.

 

 

Interim and temporary orders

  1. 8.34 All jurisdictions permit the court to make an interim or temporary prohibition order if it is necessary to prevent an immediate risk to the lives or sexual safety of children.49 Interim orders can be made in the absence of the registered offender.50
  2. 8.35 If the court makes an interim or temporary prohibition order, proceedings for a final order must be arranged.51 In New South Wales, the interim order remains in force until it is revoked or the application is withdrawn or dismissed, whichever occurs first.52 In Queensland, the order expires either at the end of a period prescribed by the court or when the matter returns to the court for determination on a final order.53 In Western Australia and the Northern Territory, the interim prohibition order remains in force until the final hearing, unless the application is withdrawn before then.54
  3. 8.36 The Commission acknowledges that it will sometimes be necessary for the police to apply for an interim child protection prohibition order to manage an immediate risk to the sexual safety of a child or children. The Commission proposes that processes followed in interim applications for child protection prohibition orders should be the same as in applications for interim family violence intervention orders and personal safety intervention orders.

Recommendation

44. The court should be permitted to make an interim child protection prohibition order in the absence of the registered sex offender if the court is satisfied, on the balance of probabilities, that an interim order is necessary to ensure the sexual safety of a child or children. If the court makes an interim child protection prohibition order, it should be required to ensure that a hearing is listed for a decision about the final order as soon as practicable.

 

 

Restrictions on publication of proceedings

  1. 8.37 In other states and territories, applications for interim and final prohibition orders are heard in the absence of the public.55 In Victoria, however, applications for sensitive orders, such as family violence intervention orders and child protection orders, are generally heard in open court.56
  2. 8.38 Open justice is recognised as one of the most fundamental principles of our legal system.57 Justice must not only be done, it must also be seen to be done.58 Additionally, the Charter of Human Rights and Responsibilities Act 2006 (Vic) protects the right to ‘a fair and public hearing’ in criminal and civil proceedings.59
  3. 8.39 In light of this important principle, the Commission considers it more appropriate to permit the court to make an order placing restrictions on publication of the proceedings rather than to close proceedings to the public. The court has powers to make non-publication orders in relation to family violence intervention orders and personal safety intervention orders.60

Recommendation

45. A court should be permitted to make an order restricting or prohibiting the publication of any information that might lead to the identification of a registered sex offender against whom a child protection prohibition order is sought or made.

 

 

Corresponding prohibition orders

  1. 8.40 Most jurisdictions recognise child protection prohibition orders made in other Australian jurisdictions. New South Wales, Queensland, Western Australia and the Northern Territory all permit equivalent orders made interstate (and in some cases overseas) to be recognised in their state or territory.61 New South Wales and Western Australia specify the particular orders they will recognise,62 while Queensland and the Northern Territory leave this open.63
  2. 8.41 In Queensland and Western Australia, the Commissioner of Police or his or her delegate applies to a court or court registrar for registration of a corresponding order.64 In the Northern Territory, the Commissioner of Police may enter the details of a corresponding prohibition order on the register; there is no need to apply to a court.65 The New South Wales regulations simply state that a corresponding prohibition order has effect in New South Wales as if it were an order made by the Local Court—there is no provision specifying how these orders are to be registered with the Local Court.66 There are provisions in each jurisdiction for varying or revoking a corresponding prohibition order.67
  3. 8.42 The Commission considers that mutual recognition of prohibition orders by participating states and territories will strengthen the capacity of these orders to protect children from sexual abuse.

Recommendation

46. The Sex Offenders Registration Act 2004 (Vic) should include a provision recognising child protection prohibition orders made in other states and territories.

 

 

Contravention of prohibition orders

  1. 8.43 In each relevant jurisdiction it is an offence for a person to fail to comply with a prohibition order without lawful excuse.68 The maximum penalty for failure to comply is generally two years imprisonment and/or a fine.69
  2. 8.44 The Commission considers that the penalty for the offence of contravening a prohibition order should be consistent with the penalties for the registration offences of failing to report and furnishing false and misleading information,70 which are also consistent with the penalties for contravening a family violence intervention order and a personal safety intervention order.
  3. 8.45 When a registered sex offender in respect of whom a prohibition order is made is present at court, they should be given a verbal explanation of their order, and they should be given a written explanation of their order in all cases.71 It should be a defence to the offence of contravening a prohibition order for the registered sex offender to prove that:
  • they have not been served with a copy of the order, or
  • the order has not been explained to them in the terms required by the Act.72

Recommendations

47. If a child protection prohibition order, whether interim or final, has been made against a registered sex offender, the registrar of the court should be required to give the registered sex offender an explanation of the order.

48. If a registered sex offender against whom a child protection prohibition order has been made has been served with a copy of the order and the order has been explained to them, it should be an offence for the registered sex offender to contravene the order. Penalty: level 7 imprisonment (two years maximum) or a level 7 fine (240 penalty units maximum) or both.

 

 

Entry and search powers

  1. 8.46 A police officer who suspects on reasonable grounds that someone has failed to comply with their prohibition order can arrest that person without a warrant in New South Wales, Western Australia and the Northern Territory.73
  2. 8.47 If the Commission’s proposed penalty for contravening prohibition orders is adopted, the offence will be a summary offence. This means that police would not have access to the power to enter and search premises without a warrant where they suspect, on reasonable grounds, that a serious indictable offence is being or has been committed.74
  3. 8.48 In light of this limitation, and the approach taken in other Australian states and territories, the Commission considers it appropriate that police officers have the right to enter and search premises when they believe, on reasonable grounds, that a person is contravening a prohibition order. The entry and search power proposed here is consistent with that recommended in relation to the other registration offences of failing to report and furnishing false and misleading information.75 Police have the same powers where they suspect that someone is contravening a family violence intervention order or personal safety intervention order.76

Recommendation

49. If a member of the police force believes, on reasonable grounds, that a registered sex offender against whom a child protection prohibition order has been made is present at certain premises, they should be permitted to enter and search those premises without warrant if the member of the police force:

  1. (a) reasonably believes that the person is on the premises in contravention of a child protection prohibition order, or
  2. (b) reasonably believes that the person is on the premises and engaging in particular conduct in contravention of a child protection prohibition order, or
  3. (c) has the express or implied consent of an occupier to do so.

 

Appeals in relation to prohibition orders

  1. 8.49 It is possible to appeal against decisions in relation to prohibition orders in all jurisdictions where they exist.
  2. 8.50 In New South Wales, the Local Court Act 2007 (NSW) sets out the provisions for an offender to appeal against the making of a prohibition order.77 In Queensland, the Commissioner of Police or the offender may appeal to the Children’s Court constituted by a Children’s Court judge (for an offender who is under the age of 18) or the District Court (for an offender who is an adult) against a decision made in relation to a prohibition order.78
  3. 8.51 If a prohibition order is made in Western Australia, the Commissioner of Police or the offender may apply to the court for an order varying or revoking the prohibition order.79 Leave of the court is required to make such an application.80 In the Northern Territory, a person aggrieved by the decision of a court to dismiss an application for a prohibition order or to make, vary or revoke a prohibition order may apply to the Supreme Court for a review of the decision.81
  4. 8.52 As a matter of fairness, it should be possible for both the Chief Commissioner of Police and a registered sex offender against whom a child protection prohibition order is made to appeal to the County Court against a decision to make, or not to make, an order and against the terms of any order made.

Recommendation

50. The Sex Offenders Registration Act 2004 (Vic) should set out the procedure for appealing against a decision made in relation to a child protection prohibition order.

 

 

Interaction between prohibition orders and Family Law Act orders

  1. 8.53 There is potential for child protection prohibition orders to be in conflict with orders concerning who a child may live with and have contact with made in proceedings under Commonwealth legislation—the Family Law Act 1975 (Cth). Section 109 of the Australian Constitution provides that, where there is an inconsistency between a state and Commonwealth law, the law of the Commonwealth prevails and the law of the state is invalid to the extent of the inconsistency.82
  2. 8.54 This means that, unless the Family Law Act specifically provided otherwise, a Commonwealth parenting order that conflicted with a state child protection prohibition order could operate to override the prohibition order. This situation could arise where a child protection prohibition order specified that a registered sex offender (a child’s parent) was not to reside with or come within a certain distance of the child, and a Family Court parenting order simultaneously provided for shared parenting between the offender and the child’s other parent.

Existing provisions in state prohibition order legislation

  1. 8.55 The only jurisdiction that has sought to deal with potential conflict between prohibition orders and Family Law Act orders is the Northern Territory. The Child Protection (Offender Reporting and Registration) Act 2004 (NT) specifically provides that prohibition orders have no effect to the extent that they are inconsistent with orders of the Family Court or orders under the Domestic and Family Violence Act 2007 (NT).83 This provision applies whether the prohibition order was made before or after the other order.84 The Act notes that the prohibition order is not inconsistent with another order merely because it imposes a longer term in relation to prohibited conduct than was imposed by the other order.85
  2. 8.56 Although the Commission does not support this approach because it might provide insufficient safeguards for children protected by a prohibition order, any other means of resolving the issue of potential conflict would require amendment to the Family Law Act.

Family violence order mechanisms

Parenting order made before family violence order

  1. 8.57 The Family Law Act already provides for the interaction between state family violence orders and Family Law Act orders, where the Family Law Act order is made before the state family violence order. ‘Family violence orders’ for these purposes are orders, including interim orders, made under prescribed laws of the states and territories to protect a person from family violence.86
  2. 8.58 The Act states that

In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend … a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child.87

  1. 8.59 Recovery orders, injunctions, undertakings, registered parenting plans and recognisances may be revived, varied, discharged or suspended in the same way.88 Courts that have jurisdiction under these provisions are state and territory courts of summary jurisdiction.89
  2. 8.60 Additionally, the Family Violence Protection Act 2008 (Vic), for example, has a reciprocal provision, which requires the Magistrates’ Court or Children’s Court to exercise its power to revive, vary, discharge or suspend any Family Law Act order to the extent of the inconsistency between it and a family violence intervention order.90
  3. 8.61 For this mechanism to operate in relation to child protection prohibition orders, there would need to be an amendment made to the Family Law Act to recognise those orders in the same way as family violence orders and to confer jurisdiction on state and territory courts of summary jurisdiction.

Parenting order made after family violence order

  1. 8.62 There are numerous provisions under the Family Law Act which deal with how existing family violence orders are treated in Family Law Act proceedings.
  2. 8.63 When a decision is to be made under Part VII of the Act in relation to children, if a party to the proceedings is aware that a family violence order applies to the child or any member of the child’s family, that party must inform the court of the order.91 If a person who is not a party to the proceedings knows about a family violence order, they may inform the court of the order.92
  3. 8.64 When making an order under Part VII of the Act, the court must, to the extent that it is possible to do so consistently with the child’s best interests, ensure that the order:
  • is consistent with any family violence order; and
  • does not expose a person to an unacceptable risk of family violence.93
  1. 8.65 If the court makes a parenting order or any other order or injunction which requires or authorises a person to spend time with a child, and that order or injunction is inconsistent with an existing family violence order, the court must:
  • specify in the order that it is inconsistent with an existing family violence order
  • give a detailed explanation in the order of how the contact that it provides for is to take place
  • explain, or arrange for someone else to explain, the order to the parties to the proceedings, the person against whom the family violence order is directed (if not a party to proceedings), and the person protected by the family violence order (if not a party to proceedings).94
  1. 8.66 Within 14 days, copies of the Family Law Act order are to be given to a number of parties, including:
  • the registrar or other state or territory court official who last made or varied the family violence order
  • the commissioner of the police force of the state or territory in which the person protected by the family violence order resides
  • a child welfare officer in the state or territory where the person protected by the family violence order resides.95
  1. 8.67 If there is an inconsistency between a Family Law Act order authorising or requiring a person to spend time with a child and a family violence order, the family violence order is invalid to the extent of the inconsistency.96 Certain courts have jurisdiction under the Family Law Act to hear and determine applications for declarations that the orders are inconsistent.97
  2. 8.68 For these mechanisms to operate in relation to child protection prohibition orders, provisions would need to be inserted into the Family Law Act:
  • requiring parties to notify the court of child protection prohibition orders
  • requiring the court to take a prohibition order into account to the extent that it is possible to do so
  • expressly dealing with any inconsistency that remained.
  1. 8.69 The Commission considers it important that appropriate steps are taken to address the potential for conflict between the proposed new child protection prohibition orders and orders made by courts under the Family Law Act. This matter would be most effectively dealt with by amendments to the Commonwealth legislation that would give child protection prohibition orders the same recognition under the Family Law Act as family violence orders.

Recommendation

51. The Victorian Attorney-General should request that the Commonwealth Attorney-General consider amendments to the Family Law Act 1975 (Cth) that would treat child protection prohibition orders in the same way as family violence orders for the purposes of dealing with any conflict between orders made under Commonwealth and Victorian law.

 

 

 

Footnotes

Main menu

Back to top