12 Sep How can an AVO affect your parenting orders?
What is an AVO?
In NSW there are two types of Apprehended Violence Orders (“AVOs”):
- Apprehended Domestic Violence Orders (“ADVO”) and;
- Apprehended Personal Violence Orders (“APVO”).
In the Family Law context, we generally deal with ADVOs, which relate to people who live together. APVOs relate to people who do not live together.
An AVO is an Order issued by the Local Court in accordance with the relevant state legislation. The purpose of an AVO is to protect a person from violence, including stalking, intimidation or harassment. Any person who is or has been the victim of violence and has a reasonable fear to believe that this behaviour will continue, can apply for an Avo. A victim of violence can apply for an AVO or Police can apply for an AVO on behalf of a victim. The AVO will name the victim, or, the person in need of protection (“PINOP”), name the perpetrator of violence, or, “the defendant”, and list the specific conditions of the order.
There are three standard conditions on all AVOs in NSW, often referred to as ‘standard orders’, they include that:
• the defendant must not do any of the following to the protected person or anyone the protected person has a domestic relationship with:
• assault or threaten the protected person,
• stalk, harass or intimidate the protected person, and
• deliberately or recklessly destroy or damage anything that belongs to the protected person.
In the family law context, some orders may prevent the defendant from attending the former matrimonial home.
Children may be listed as PINOPs on an AVO if they are direct or indirect victims of domestic violence or because the adult PINOP has primary care of the children.
What is a parenting order?
A parenting order is an order made by the Federal Circuit Court and Family Court of Australia (“FCFCOA”) either by consent or after a defended hearing. A parenting order sets out how parents will care for their children, including when each parent will spend time with the children.
When determining what parenting orders to make, the Court will consider what is in the best interests of the children. The Court will determine what is in the best interests of the children with respect to the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm due to family violence or abuse. The existence of an AVO and any allegations of family violence will therefore be considered by the Court when making a parenting order.
What if there are parenting orders and AVO?
If the terms of an AVO conflict with a parenting order, the parenting order will prevail. For example, if the AVO prevents the defendant from attending the PINOP’s home, but the parenting order provides for the defendant to pick up or drop off the child from the PINOP’s home, then the parenting order will override the AVO. This is because the FCFCOA exercises federal jurisdiction, whereas AVOs are made by the Local Court, exercising state jurisdiction. In Australia, where there is an inconsistency in law, federal legislation overrides state legislation.
It important to note that a person can still be in breach of the AVO if they do not comply with the conditions of the AVO. Similarly, there are consequences for non-compliance with parenting orders. It is therefore important to adhere to the terms of both an AVO and parenting orders. You should seek legal advice if you are unsure about your obligations pursuant to an AVO or parenting orders.
Has this article prompted questions for you about your own parenting matters? Have you applied for an AVO and are concerned about your parenting orders? Our experienced Family Law Team will be happy to discuss your concerns with you. Contact us on 8525 2700 or click here to request an appointment with one of our experienced Solicitors.