Parenting orders typically establish guidelines for separated or divorced parents to collaborate on childcare responsibilities, including facilitating contact between parents during exchanges or to discuss important parenting matters. However, when family violence arises between parents subject to parenting orders and one parent seeks an Apprehended Domestic Violence Order (ADVO), it can create uncertainty regarding the effect of the ADVO on the existing parenting arrangements.
What is an ADVO?
An ADVO, or Apprehended Domestic Violence Order, is a legal instrument issued by a court in New South Wales, Australia, to protect individuals who have experienced domestic violence. It imposes restrictions on the behavior of the person against whom it is issued, aiming to prevent further acts of violence or intimidation. ADVOs can include conditions such as prohibiting the individual from contacting the protected person, attending certain locations, or possessing firearms.
What are Parenting Orders?
Parenting orders are legally binding directives issued by the Family Court of Australia or the Federal Circuit Court outlining the arrangements for the care, welfare, and upbringing of children in situations where parents or caregivers are separated or divorced.
Inconsistency between orders
Parenting orders are issued by the Federal Circuit and Family Court of Australia, which operates under federal jurisdiction. Conversely, ADVOs are issued by the Local Court of New South Wales, which operates under state jurisdiction. In Australia, federal laws and court orders supersede those of states and territories. Consequently, parenting orders take precedence over any conflicting obligations stipulated in an ADVO.
For instance, if existing parenting orders dictate that a parent is to pick up their child at 5:00 pm on Fridays from the residence of the protected person named in an ADVO, and the ADVO prohibits the parent from being within 100 meters of that residence, attending the residence to collect the child in accordance with the parenting orders does not constitute a breach of the ADVO. However, any visit to the residence outside the scope of the parenting orders would violate the ADVO.
What if there are no parenting orders?
In cases where a domestic violence incident triggers the breakdown of a relationship, an ADVO may be sought before arrangements regarding the children’s care are established.
When children are involved in an ADVO, and it imposes restrictions on contact, specific conditions are usually included. These conditions allow for communication between parents through legal representatives concerning parenting matters.
It is strictly forbidden to initiate any form of contact or approach the protected person unless the contact is:
A) through a lawyer, or
B) to attend accredited or court-approved counselling, mediation, and/or conciliation, or
C) as ordered by this or another court about contact with children, or
D) as agreed in writing between you and the parent(s) about contact with children; or
E) as agreed in writing between you and the parent(s) and the person with parental responsibility for the children about contact with the children.
This provision enables inter-parent communication through their legal representatives, with a particular focus on issues pertaining to the child-rearing process. Importantly, if the parents successfully reach a written agreement on these matters, even in the absence of formal court orders, any communication or interaction between the respondent and the protected person, as stipulated in that agreement, is deemed compliant with the terms of the ADVO.
Written agreements concerning parenting arrangements, not sanctioned by the court, are referred to as parenting plans. While parenting plans lack legal enforceability and do not supersede ADVOs, if a parenting plan specifies contact between parties during exchanges, as agreed in writing, and the protected person subsequently revokes their consent, any contact thereafter would breach the ADVO.
This emphasises the importance of seeking alternative dispute resolution methods and the potential for amicable resolution even amidst challenging circumstances.
What if there is an ADVO when family law proceedings start?
When family law proceedings commence, and an ADVO is in place, the family courts are mandated to issue parenting orders aligned with the child’s best interests. The Family Law Act 1975 necessitates the consideration of allegations of family violence when making decisions concerning children.
Should the court issue an order conflicting with the terms of the ADVO, it will highlight the inconsistency before finalizing the order. Family court orders take precedence over ADVOs. Consequently, a copy of the parenting orders must be appended to the ADVO to inform the Local Court that another order supersedes the ADVO’s conditions.
The repercussions for breaching an ADVO are severe, encompassing imprisonment for up to two years and/or a fine of $5500.For personalised legal guidance tailored to your circumstances, it’s advisable to consult with a qualified legal professional. Contact our expert family lawyers for a free initial consultation if you have any questions regarding the ADVO impacts on parenting.
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