ADVO’S and Family Law

What is an ADVO?

Apprehended Domestic Violence Orders (ADVO’s) are court orders made under state and territory domestic violence legislation to protect and prevent future domestic violence by imposing restrictions on the behaviour of the perpetrator towards the victim and/or their children.

ADVO’s aim to ensure the safety and protection of the victim and children by prohibiting certain conduct by the perpetrator on a case-by-case basis but will include restrictions on assaulting, stalking, intimidating, and harassing the victim and may include restrictions on accessing property or approaching the victim.

Police can apply for an interim ADVO on behalf of the victim which operates immediately until the court makes a final decision. Victims can also apply directly to the court for an ADVO.

Effect of ADVOs on family law parenting matters

Where an ADVO is in place, the family law courts must consider the implications for parenting arrangements under the Family Law Act 1975 (Cth) (“the Act”).

The safety of the victim and children is the paramount consideration. Parenting orders cannot be made that are inconsistent with the ADVO.

An ADVO may prohibit the perpetrator from approaching, contacting or spending time with the victim and children. This restricts the perpetrator’s involvement in parenting decisions and time spent with children.

Courts can make an order for supervised contact with children or no contact subject to the ADVO conditions. Contravening parenting orders alongside an ADVO may constitute family violence.

ADVO’s and Parenting Orders

ADVOs and parenting orders may conflict due to the interconnected nature of family law. For example, an ADVO 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 ADVO will determine what parenting orders would potentially conflict. All parties must strictly comply with the terms of both the ADVO and parenting orders to avoid the penalties of contravention. 

The Act 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. That being said, if you find yourself in this predicament, we strongly recommend you obtain independent legal advice from a family lawyer to understand your rights.

Effect of ADVOs on property settlement

An ADVO may affect property settlement under the Act if there are allegations of domestic violence.

Courts have powers to alter the property interests of the perpetrator and victim when making property orders.

In its current form, the Act does not explicitly acknowledge the impact of family violence on an individual’s financial capacity to contribute to a relationship. Accordingly, to understand how the Court handles applications seeking to adjust a property settlement in cases involving family violence, we must turn to relevant case law. 

The Full Court case of Kennon & Kennon (1997) has given rise to what is now commonly known in family law as a Kennon Claim. This type of claim is frequently relied upon by parties seeking to demonstrate that family violence hindered their financial contributions to the relationship. 

A party seeking to rely on a Kennon claim must provide evidence to establish:

1. One party demonstrated violent conduct towards the other party; 
2. The conduct had a “discernible impact” on the other party; 
3. The contributions of the affected party were made substantially more difficult due to the violent conduct.  

The court has made it clear that a party is not eligible for an adjustment solely based on being a victim-survivor of serious domestic violence. Instead, there needs to be evidence demonstrating that the violence had a substantial impact on their capacity to contribute financially to the relationship.  

In a later decision, Benson & Drury [2020], the Judge emphasised the need to consider contributions that have been rendered significantly more arduous, weighing them alongside all other contributions made by each party. 

In the case of Baranski & Baranski (2012), the Court extended the scope of Kennon Claims to encompass not only contributions made during relationships but also post-separation. In this matter, the Court held that the Husband’s violent conduct towards the Wife, following their separation, substantially heightened the difficulties she encountered in parenting their children.

ADVOs have significant implications for family law parenting and property matters where domestic violence is alleged. The safety of victims and children is paramount. ADVOs restrict the perpetrator’s involvement in parenting, contact and financial matters. Understanding the complex interplay between ADVOs and family law is vital for victims, perpetrators and legal practitioners.

If you are served with an ADVO, or if you have concerns about how an ADVO may affect you and your journey through the family law process, we encourage you to contact our Family Law team today to discuss the steps that can be taken to move forward with your family law matter.

You can reach our team of Sutherland Shire Solicitors on 8525 2700 or click here to request an appointment with our experienced team of Family Law Solicitors, which includes Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward, and Kirstin Attard. Are you ready to start your Family Law enquiry now? Did you know you can start your enquiry via our secure online form? If you are ready to go, click on the ‘Get Started Online‘ button on the Family Law Page, Completing these questions will speed up your family law enquiry so you can spend more time working on your enquiry with your Solicitor (allow approximately 20 minutes to complete these questions).

Article by Nikita Ward
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