· 2025-12-30T23:40:44+0000 · 858 posts

Father’s Partial Win: Federal Appeal Succeeds on Technicality After Judge Oversteps Power with Conflicting Family Violence Orders

In Provenza & Provenza (No 4) [2025] FedCFamC1A 232, the Federal Circuit and Family Court of Australia (Division 1) delivered a sharp procedural reminder: even when family violence findings are damning, judicial power must remain within statutory bounds. The father’s appeal succeeded in part—not because the trial judge erred in substance, but because she made injunctions under s 68B of the Family Law Act 1975 (Cth) that conflicted with an existing State family violence order (FVO). Justice Austin found that this overlap breached s 114AB of the Act, rendering three injunctions invalid. The case underscores the limits of concurrent federal and state jurisdiction in family violence protection.

Facts and Issues

The parents separated in June 2022.
The mother held a final Queensland family violence order (FVO) against the father protecting herself and two of the three children, operative until July 2027.
The trial judge, finding serious risk from the father’s conduct, made parenting orders granting the mother sole decision-making, the children to live with her, and additional injunctions restraining the father from any contact with the mother or the younger children.
However, those injunctions mirrored or overlapped the existing State FVO terms.
The father appealed, alleging jurisdictional and legal error among other discretionary grounds.

Core Issue:

Whether the primary judge had power to make federal injunctions under s 68B when a State FVO covering the same persons and conduct was already in force.

Law

Key provisions of the Family Law Act 1975 (Cth):

s 68B: permits injunctions for the personal protection of a child, parent, or other person.
s 114AB: restricts the use of federal injunctions where a State or Territory law already provides protection — the federal court cannot duplicate or overlap orders if a State FVO is active and operable.
reg 7 of the Family Law Regulations 2024 (Cth): identifies the Domestic and Family Violence Protection Act 2012 (Qld) as a prescribed State law for the purpose of s 114AB.

Precedents relied on:

Phillips & Hansford (No 2) (2019) FLC 93-917; SCVG & KLD (2014) FLC 93-582 – scope of judicial reasoning on s 60CC factors.
Coulton v Holcombe (1986) 162 CLR 1 – appellate principle: a party is bound by the way they conduct their case.
Metwally v University of Wollongong (1985) 60 ALR 68 – cannot raise new arguments on appeal.

Application of Law to the Facts

Justice Austin found that the trial judge had no power to make injunctions under s 68B that overlapped the Queensland FVO. Because the mother had already obtained a final State order, the Court’s jurisdiction was constrained by s 114AB(2) — the federal power could not operate concurrently over the same subject matter.

Specifically:

Order 6 restrained the father from communicating with the youngest child or attending the mother’s home or workplace.
Order 7 restrained communication with the middle child.
Order 8 prohibited communication with the mother except in emergencies.

Each of these orders conflicted or duplicated existing FVO terms, making them ultra vires. Justice Austin emphasised that the error was curable by simply discharging the offending orders, without disturbing the remainder of the judgment.

All other grounds — including claims of bias, lack of reasons, and disproportionality — were dismissed as without merit. The appellate court confirmed the trial judge’s substantive findings of unacceptable risk, family violence, and impaired parenting capacity were sound and supported by evidence.

Judgment and Reasoning

The appeal was allowed in part.

Justice Austin:

“The provisions of s 114AB(2) of the Act deprived the primary judge of power to make the injunctions comprised by Orders 6, 7 and 8, as they either conflict or overlap with the terms of the operable State family violence order.”

Accordingly:

The original Orders 1–22 (dated 5 August 2025) were set aside.
The subsequently published orders (1–21) were confirmed as the valid final orders, minus Orders 6–8, which were discharged.
No costs were ordered.

The partial success did not disturb the overall parenting outcome — the children remained in the mother’s care, with the father’s contact restricted due to risk — but it corrected the jurisdictional overreach of duplicative injunctions.

Why the Father “Won” This Ground

The father’s limited victory was purely technical, but legally significant.

He demonstrated the trial judge acted without power, not merely erred in discretion.
This form of error — jurisdictional excess — cannot be cured by consent or hindsight.
It underscores that federal parenting injunctions cannot co-exist with State family violence orders covering the same protective ground.
The correction preserved the hierarchical integrity between State and Commonwealth systems under s 114AB.

Take-Home Lesson

Even in high-risk parenting cases, the Family Court’s protective reach must respect the federal-state boundary. When a State family violence order already exists, duplicate injunctions are beyond power, no matter how well-intentioned.

This case illustrates that:

Judges must check for operative State orders before issuing federal injunctions.
Lawyers should identify and raise s 114AB issues early to prevent jurisdictional conflict.
A technical win on power can occur even when the substantive appeal is lost — but it will not change the parenting outcome unless the underlying findings are wrong.

📘 Summary Table

IssueFindingResultFederal injunctions overlapping State FVOContrary to s 114AB – beyond powerOrders 6–8 dischargedRisk and parenting findingsSound and evidence-basedAppeal dismissedCostsNo order as to costsEach bears own

🧭 Key Precedent Established

Federal judges must avoid duplicating State protective orders — even if the federal orders appear more comprehensive. The error is jurisdictional, not discretionary.