Parenting Orders often require separated parties to co-operate around sharing the care of children. They may require parents to have contact in order to deliver children into each other’s care or for the purpose of liaising about decisions about the children. When family violence occurs between parties who have Parenting Orders in place and an Apprehended Domestic Violence Order (ADVO) is applied for, it can be unclear how the ADVO will affect the arrangements under the Parenting Orders. This article will discuss how ADVOs impact on Family Law Orders.
Inconsistency between orders
Parenting orders are made in the Federal Circuit Court or the Family Court. Both courts have federal jurisdiction, while ADVOs are made by the Local Court, which has state jurisdiction. In Australia, all decisions of the Commonwealth override decisions made by states or territories. As such, parenting orders made by the Federal Circuit Court or Family Court will override any inconsistent obligations of an ADVO.
For example, if the Parenting Orders in place state that you are to collect your child at 3:00pm Saturday from the residence of the protected person of an ADVO, but the ADVO states you are not to be within 100 metres of the residence, you will not be in breach of the ADVO if you attend the residence for the purposes of collecting the child in accordance with the parenting orders. However, if you attend the residence of the protected person for any other reason and not in compliance with the Parenting Orders, you will be in breach of the ADVO.
What if there are no parenting orders in place?
Sometimes, a domestic violence incident is the cause of the breakdown of a relationship. In this situation, an ADVO may be taken out before any arrangements have been made as to care of the children of the relationship.
When the parties to an ADVO have children and the ADVO places a restriction on contact, the court will typically include the following condition as part of the ADVO:
You must not approach the protected person or contact them in any way, 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.
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 condition allows for communication between the parties regarding parenting matters if this communication is had through a lawyer. It also allows for the parties to attend counselling, mediation or conciliation, which are ways of coming to an agreement on parenting arrangements. Further, if the parties are able to come to an agreement regarding parenting arrangements, though no orders are in place, any contact between the respondent and the protected person pursuant to this agreement is not a breach of the ADVO.
Written agreements about parenting arrangements that are not court orders are also known as parenting plans. Parenting plans are not legally enforceable and a parenting plan does not override an ADVO. If a parenting plan is agreed to and the ADVO allows contact between parties as agreed in writing about contact with the children, the respondent must be mindful that if the protected person revokes their agreement to the parenting plan, and contact occurs after their agreement has been revoked, this will constitute a breach of the ADVO.
There is an ADVO in place and we have started family law proceedings. Now what?
If an application is made to the Federal Circuit Court or Family Court for parenting orders, the court will make a decision based on what is in the best interests of the children. The court is obligated by the Family Law Act 1975 to consider any allegations of family violence when making decisions about the children.
If an order is made by the court, which is inconsistent with the ADVO, the court will outline the inconsistency before making the Order. Orders of the Federal Circuit Court or Family Court override ADVOs.
A copy of the Parenting Orders must be annexed to the ADVO so that the Local Court is aware the conditions have been overridden by another order.
I am unsure about my obligations, what should I do?
If you are unsure about your obligations under an ADVO or under Family Law Orders, you should seek legal advice. The penalties for breaching an ADVO are severe and include up to two years imprisonment and/or a $5500 fine.
If you require legal advice or representation in a family violence matter or in any other legal matter, please contact Go To Court Lawyers.
By Jordan Vincent, Associate