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THE LAW REFORM COMMISSION OF HONG KONG - page 144 / 360

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(iii)if the person protected by the family violence order is not covered by subparagraph (i) - that person; and

(iv)the Registrar of the court that made or last varied the family violence order; and

(v) the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides.”640

Failure to comply with a requirement of section 68R does not, however, affect the validity of a contact order.641

Contact orders to prevail

5.52Section 68S provides that contact orders are to prevail over inconsistent family violence orders to the extent of the inconsistency.  The applicant, the respondent or any person protected by, or against whom, a family violence order is directed may apply for a declaration as to the extent to which the contact order is inconsistent with the family violence order.642

5.53This section is controversial.  We do not fully understand the rationale for such an order as we have not been able to trace the history of the provision.  The explanatory memorandum refers to the principle of respecting the child’s right to have regular contact with both parents in circumstances where contact is diminished by the making or variation of a family violence order and it is in the best interests of the child to have regular contact with both parents.  The family violence orders are made under  State or Territory law which do not come under the Federal jurisdiction, except for Western Australia.

5.54The protection of a spouse and family must be more important than maintaining regular contact with the child.  If the level of conflict between the spouses is high, then access can become a weapon used by one parent against the other, and this cannot serve the interests of a child.  It is also noted that the best interests is only one criterion to be balanced by two others in section 68Q.  This seems surprising when the “best interests” consideration is normally treated as paramount in disputes about access or contact.  

640 Section 68R(4).

641 Section 68R(5).

642 Section 68S(2).

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