ADVO’s and parenting arrangements – WHAT NOW?
Parenting arrangements often require parents of children to discuss and negotiate arrangements for children, post separation. Where there is an ADVO (Apprehended Domestic Violence Order) in place for protection of either parent from the other parent, parenting arrangements can become much more difficult to navigate. Sometimes it appears unclear how ADVO’s affect parenting arrangements.
If there are no parenting orders in place
An ADVO may be taken out by police for the protection of a parent before any arrangements have been made as to the care of the children of the relationship or marriage. This can sometimes occur at the time of separation. If there are no orders in place which have been made by the Federal Circuit Court or Family Court in relation to the care of the children, seek legal advice as soon as possible.
When the parties to an ADVO have children and the ADVO places a restriction on contact between the two parents, the Local Court (or Police) will typically include the following condition as part of the ADVO (sometimes referred to as order/condition 6):
You must not approach the protected person or contact them in any way, unless the contact is:
- Through a lawyer, or
- To attend accredited or court-approved counselling, mediation and/or conciliation, or
- As ordered by this or another court about contact with children, or
- As agreed in writing between you and the parent(s) about contact with children, or
- 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 condition generally allows the parents to communicate with the other parent/party regarding parenting matters if the communication is through a lawyer. It also usually allows for the parties to participate in family dispute resolution, such as mediation to come to an agreement in relation to parenting matters.
Written agreements that outline parenting arrangements for children are not court orders, they are often referred to as a parenting plan. If a parenting plan is agreed between the parents/parties and the ADVO allows contact between the parties (for example 4.D above), then the defendant is not breaching the ADVO as long as they abide by the parenting agreement that has been agreed. However, the defendant must be mindful that the protected person listed on the ADVO may revoke their agreement to the parenting plan. If contact were to occur after their agreement has been revoked, this will likely constitute a breach of the ADVO.
ADVO and commencement of family law proceedings
If either parent makes an application in the Federal Circuit Court of Family Court for parenting orders, the court will make a decision as to parenting arrangements that are in the best interests of the children (per the Family Law Act 1975). The Court is required to consider any allegations of family violence when making decisions about children. A copy of the ADVO should be provided to the Court so that the Court is informed of such allegations.
If parenting orders are made by the Court, which are not in line with the ADVO, Orders of the Federal Circuit Court of Family Court override the ADVO. This is often with respect to changeover, for example where contact between the parents may need to occur.
A copy of any parenting orders made by the Federal Circuit Court of Family Court must be annexed to the AVO so that the Local Court is aware of the conditions that have been overridden by a parenting order.
If you are unsure about your obligations under an ADVO, or you have family law orders regarding parenting and you are unsure about your obligations, you should seek legal advice. Penalties for breaching an ADVO (including a provisional or interim ADVO) can include up to two years imprisonment and or a $5500 fine.
If you wish to defend an ADVO application, our solicitors are ready to assist you.
Katie Jolliffe at Bale Boshev Lawyers can assist you through the court process, appear on your behalf in court and to prepare your case to the highest possible standard.
Call Katie on (02) 49 691522
Article by Katie Jolliffe
Katie Jolliffe – Solicitor
Katie primarily practices in family
law and has expertise in parenting and property matters and divorce. Katie regularly appears in the Federal Circuit Court and the Family Court of
Australia at Newcastle.
Areas of law: family law, criminal law, traffic, license matters, civil law and debt recovery.