How does an Apprehended Domestic Violence Order Affect Parenting Orders in New South Wales
In certain situations, a breakdown in a relationship might be due to an incident involving domestic violence. This could lead to an Apprehended Domestic Violence Order (AVO) being issued before any parenting arrangements for children can be made. In family law matters, an AVO is typically used to safeguard a child from a parent or one parent from the other.
If you have been served with an AVO naming your ex-partner in need of protection from you, it is crucial to understand how this could influence your parental responsibilities in New South Wales (NSW).
In this article, I will discuss:
What an AVO is.
AVOs and the Federal Circuit and Family Court of Australia (Family Court).
Depending on the circumstances, there can be several different orders made in the AVO to protect the victim and anyone they have a domestic relationship (this includes children). Such orders may include you not being permitted to:
Assault or threaten, stalk, harass or intimidate, or deliberately or recklessly destroy or damage anything that belongs to them.
Reside at the family home.
Contact them except through a lawyer.
Enter a certain distance from their residence, work, or school.
Be in their company after taking alcohol or illicit substances for at least 12 hours.
As can be presumed, examples 2-4 above may cause issues if you and your former partner have children together.
AVOs and the Federal Circuit and Family Court of Australia
Having an AVO in place may affect how the Federal Circuit and Family Court of Australia (Family Court) determine the outcome of your parenting application.
This is because the Family Court’s paramount principles are to promote the children’s best interests and welfare and to protect them from being exposed to family violence or risk of harm.
Therefore, it is important to obtain legal advice before choosing not to defend your AVO and/or commencing an application in the Family Court.
How AVOs work before the making of Parenting Orders
If there is already an AVO in place, and there are no current parenting orders, you may be required to initiate proceedings in the Family Court for your children to spend time with you. If the court determines that your children should spend time with you in a manner that is contrary to the AVO, the parenting orders will prevail.
This is because an AVO is made in the Local Court of NSW, with state jurisdiction. Whereas parenting Orders are made in the Family Court with federal jurisdiction. In Australia, Federal Court orders override decisions made by states or territories.
For example: The AVO states that you are not to be within 50 meters of your children’s other parent’s residence. However, the parenting orders state that you are to collect your children from the other parent’s residence at 9:00am on Sunday. The parenting orders override the AVO, and you are permitted to collect your children at 9:00 am on Sunday.
Nevertheless, if you attend this residence at any other time not permitted by the parenting orders, you will be in breach of the AVO.
If orders are made for your children to spend time with you, the court will outline the inconsistency of the two orders before making the order. If the parenting orders are silent on some aspects, such as changeover, you must follow the AVO requirements.
How AVOs work after parenting orders are made
If an AVO is made after final parenting orders, this may constitute a significant change in circumstances since the parenting orders were made. This may enable your former partner to file an application with the court to have the pre-existing parenting orders varied, discharged, or suspended.
This may affect the time that your children spend with you.
AVOs and parenting plans
Written agreements or parenting plans are informal agreements made between parents, they are not court-ordered or legally binding. Therefore, they are not sufficient to override Local Court AVOs.
If a parenting plan is agreed upon and the AVO does not permit the parties to have contact with each other, corresponding with the protected person would be considered a breach of the AVO.
If a parenting plan is agreed upon, and the AVO permits contact between you and your children’s other parent relating to the children’s care, you should be wary that if the person in need of protection revokes their agreement to the parenting plan and contact occurs, this may constitute a breach of the AVO.
Contact Turnbull Hill Lawyers Today
AVOs and parenting proceedings can be serious matters, and you should obtain independent legal advice that is specific to your situation to know what your rights and obligations are and to be advised what you can and cannot do.
At Turnbull Hill Lawyers, we are a trusted firm that specialises in matters where there is an interrelatedness between family law and AVO proceedings. Our lawyers will assist you throughout the entire process of your legal matters.
Contact us today to discuss the next steps for your family law and AVO matters.