It is important to consider how an Apprehended Violence Order (AVO) may affect parenting orders. Parenting orders set out the specific parenting arrangements for children which can include how much time the children spend with each parent, who the children live with as well as any other aspects of their care, welfare or development. A court must make parenting orders with the child’s best interests as the paramount consideration. When there are instances of family violence and an Apprehended Violence Order is in place or has been applied for, this can impact arrangements under the parenting order. This article will discuss some of these ambiguities. Given the stressful and complex nature of these situations, it is crucial to contact family law experts such as Etheringtons Solicitors.
What is an Apprehended Violence Order (AVO)?
An Apprehended Violence Order (AVO) is issued when one person has made the other person fearful of or exposed to violence in any form, including physical or verbal abuse, harassment, intimidation or coercive and controlling behaviour. Specifically, an Apprehended Domestic Violence Order (ADVO) is a type of AVO that can be issued when two people are married, in a de facto relationship or are related family members, and the violence occurs in the context of this relationship. A child is exposed to family violence if they see or hear it, or experience it themselves. We have addressed applying for AVOs and how they are considered by the court in another article. Breaching the conditions of an AVO is a criminal offence with a maximum penalty of a $5500 fine and/or two years in prison.
AVOs and parenting orders may conflict
AVOs and parenting orders may conflict due to the interconnected nature of family law. For example, an AVO may prevent a parent from approaching the other, but a parenting order may require them to attend an arranged changeover so that the children may spend time with the other parent. The different conditions of the AVO will determine what parenting orders would potentially conflict. All parties must strictly comply with the terms of both the AVO and parenting orders to avoid the penalties of contravention. The Family Law Act 1975 (Cth) provides that where a parenting order is inconsistent with an existing AVO, the AVO may be deemed invalid. This is because parenting orders are made by courts with federal jurisdiction while AVOs are made by courts with state jurisdiction – federal jurisdiction overrides state.
Parenting orders are also not the same as parenting plans. Parenting plans are written agreements about parenting arrangements which are not made by the court and are therefore not legally enforceable. Where inconsistencies arise between a parenting plan and an AVO, the AVO will be given preference, however the existing parenting plan may be taken into consideration when the court makes the AVO.
AVOs implemented before parenting orders are made
Courts are unlikely to create parenting orders which would conflict with existing AVOs, as it is not in the best interests of the child to expose them to harm or family violence. The Family Law Act 1975 (Cth) prioritises protecting children from risks of physical or psychological harm when considering what is in their best interest. Therefore, the court must be informed of any AVOs or allegations of family violence when applying for parenting orders. This is regardless of whether the AVO was ordered with or without admissions, as courts do not need to make a finding of guilt in family law matters as they would in criminal law ones, but instead work to protect children from the “unacceptable risk” of harm.
For the example of an arranged changeover, it is likely the parenting order would set out a particular time and place at which one parent may collect their child from the other, aggrieved parent and doing so would not constitute a breach of the parenting order or AVO. However, approaching the aggrieved person at that place at another time would be a breach. If a parenting order is made which is inconsistent with an existing AVO, the court is required to explicitly state that it is inconsistent and provide a detailed explanation of the order and the rights and responsibilities of the parties involved.
AVOs implemented after parenting orders are made
If a domestic violence issue commences after parenting orders are made, a final AVO may be issued to vary, discharge or suspend the pre-existing parenting orders as appropriate, under the Family Law Act 1975 (Cth). This prioritises the best interests of the children while ensuring that all parties can comply with all the relevant enforceable orders. However, as determined in Rice v Asplund (1979) FLC 90-725, there must be a significant change of circumstances to justify an amendment to pre-existing final parenting orders. An AVO made after a parenting order may include additional terms which act as exceptions so that the person can comply with the existing parenting order.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with applying for parenting orders or an AVO as appropriate, or drafting a parenting plan.
If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.