Commonwealth Consolidated Acts

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FAMILY LAW ACT 1975 - SECT 68R

Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act

Power

             (1)  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)  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; or

                     (b)  a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

                     (c)  an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or

                     (d)  to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:

                              (i)  an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or

                             (ii)  a registered parenting plan within the meaning of subsection 63C(6); or

                            (iii)  a recognisance entered into under an order under this Act.

             (2)  The court may do so:

                     (a)  on its own initiative; or

                     (b)  on application by any person.

Limits on power

             (3)  The court must not do so unless:

                     (a)  it also makes or varies a family violence order in the proceedings (whether or not by interim order); and

                     (b)  if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c)--the court has before it material that was not before the court that made that order or injunction.

             (4)  The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.

Relevant considerations

             (5)  In exercising its power under subsection (1), the court must:

                     (a)  have regard to the purposes of this Division (stated in section 68N); and

                     (b)  have regard to whether spending time with both parents is in the best interests of the child concerned; and

                     (c)  if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order--be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.

Note:          Sections 60CB to 60CG deal with how a court determines a child's best interests.

Registration of revival, variation, discharge or suspension of orders and other arrangements

             (6)  The regulations may require a copy of the court's decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court's decision.



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