If you have existing parenting orders in place and there is a subsequent Apprehended Domestic Violence Order (ADVO) or Apprehended Violence Order (AVO) taken out against you, or for your protection and/or the protection of the children, you might be wondering where the parenting orders will now stand.
In response to increased reporting and greater awareness of the effect of family violence on the development of children, the Family Law Act 1975 (Cth) was amended in July 2012 to require Judges in the Family Court and Federal Circuit Court to give greater weight to protecting children from risks of physical or psychological harm posed by one or both parents.
However, if a Judge believes that the risks posed by a
parent who has been violent can be mitigated or reduced, then a Judge may make orders for that parent to spend time with the children despite an AVO being in place. A Judge is able to do this because in general parenting orders will override an AVO if there is any inconsistency between the two. This is because they are made in a superior court. One exception to this is where the ADVO or AVO specifically varies the orders, although there may be other instances where this may not apply.
Sometimes, an ADVO and parenting Orders can sit alongside each other as the terms of the Orders are not inconsistent. For example, a parenting order which provides for the defendant in the ADVO or AVO to spend time with the children from the conclusion of school on Friday to the commencement of school Monday, with changeover to be affected by collecting or delivering the children to school, will not be inconsistent with an ADVO preventing a parent from attending the protected parent’s residence. However, the defendant must not contact, or approach the children at any other time (except as permitted by the Orders) as that would be a breach of the ADVO or AVO.
Another example may be an order that the other parent speak with the children on the telephone three times a week at 5pm by calling your telephone number. At these days and times, it would not be a breach of the ADVO or AVO for the other parent to call you to speak to the children. If the other parent calls at a time that is not permitted under the Orders, this may be a breach of the ADVO or AVO.
All parties must comply strictly with the terms of the ADVO or AVO and the parenting orders. Therefore, if your parenting orders are silent on anything such as where changeover is to take place and who with, and the ADVO or AVO states that you must not approach the home where the children and other parent live, you should not attend the home just because you have parenting orders for you to see the children, notwithstanding that this may have been what you always did. This may be a breach of the ADVO or AVO.
The Family Court of Australia and Federal Circuit Court of Australia take family violence very seriously. However, in some cases, the Court can vary the terms of the parenting orders to ensure you comply with conditions of the ADVO or AVO and still see the children.
As the terms of ADVO and AVOs vary, you should seek legal advice if you have parenting orders in place and there is a subsequent ADVO or AVO.
Our family law team can assist you with the implications of your parenting orders and the ADVO or AVO and can also assist you with any criminal proceedings regarding the ADVO or AVO.