Inconsistent AVO and Family Court Orders

Updated: Jan 24, 2020

Whenever a parent raises allegations of family violence against the other parent it is often that a Police may be involved. This then may lead to an ADVO (commonly referred to as just an AVO) being placed against the alleged offending parent.

Parenting Orders and Parenting Plans Vs Apprehended Domestic Violence Orders (AVOs/ADVOs)

Considering that parenting orders and parenting plans can make provisions about contact between the parents and how each parent spends time with the children, having an ADVO against either parent can considerably affect how that parent spends time with the children. For example, an AVO/ADVO can affect how parents communicate with each other about their children, or how they affect the changeover for spend-time arrangements between the children and their parents. An AVO/ADVO can often be applied for by a parent as a direct result from incidents that have occurred during such occasions or see a parent charged with a breach of an AVO/ADVO if one was already in place.

So considering all of these complexities, how does having an AVO/ADVO actually work with parenting orders and parenting plans?

ADVOs already made before applying for parenting orders

If an ADVO has been made prior to applying for parenting orders you must inform the Family Court or the Federal Circuit Court (whichever family court you are applying in) of any allegations of family violence or if there is an existing AVO/ADVO made against either parent. The Court will then take into consideration the allegations and the existing ADVO to make parenting orders that the Court will consider to be in the best interest of the child, which under the Family Law Act 1975 (Cth) is the paramount consideration in all family law matters involving children.

If there are any inconsistencies between the ADVO and the parenting orders you are seeking, the parenting order will override the existing ADVO.

ADVOs made after parenting orders have been made

On 3 December 2016 amendments made to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) changed how existing parenting orders are considered when making an ADVO.

For ADVOs made prior to 3 December 2016 you should be aware that while the Local Court in making the ADVO can take into consideration existing parenting orders, it can also vary a parenting order in a way that it would override any existing parenting orders.

For ADVOs made after 3 December 2016, the AVOs/ADVOs can include orders that would take into consideration the already existing parenting orders allowing them to continue uninterrupted by the ADVO, although it is advisable to reconsider whether the parenting orders, in this case, are still appropriate, and perhaps look into whether you might be able to have them varied.

What about Parenting Plans and ADVOs?

A Parenting Plan is a written agreement between the parents that set out the parenting arrangement for the children. The Parenting Plan is not a court order and as such, it cannot be legally enforced. This, of course, would then affect how ADVOs work when there are no existing parenting orders, and the parents only follow a Parenting Plan.

As the Parenting Plan is not a court order, it does not override an ADVO even though it can be taken into consideration when the Local Court makes ADVO related orders.

It should be noted that ADVOs are sought out for different reasons and can set out different restrictions, for example, preventing the mother from contacting the father, or preventing the father from approaching the mother – which if the parents continue to follow the Parenting Plan, it may lead to a breach of an existing ADVO.

How do ADVOs against parents impact their time with the children?

This would depend on the restrictions/conditions listed under the ADVO, whether there are any parenting orders in place or even whether the ADVO individually lists the children as protected persons.

As you can see from the above, there is no straightforward answer as to what happens when there is ADVO in place in parenting matters but that instead, it depends on a number of factors. This is why it is always important to seek legal advice whenever a party raises allegations of family violence as it can lead to further complications that can impact how a parent spends time with their child.

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