Family Violence Orders and Children (ACT)
In the ACT, a family violence order (FVO) can be made by a magistrate when a person fears violence from a family member. These orders are made under the Family Violence Act 2016 and may restrict the behaviour of the respondent by imposing conditions that restrict them from doing certain things that may place any of the protected persons at risk. In some cases, the conditions of an FVO may restrict the access a person can have to their children. This page deals with how family violence orders can affect access to children.
When will an FVO be made?
A court will make an FVO if it is satisfied that:
- the parties are in a family relationship (such as partners, ex-partners, or parent and child); and
- the respondent has committed violence against the affected person; or
- the affected person has reasonable grounds to fear violence from the respondent
If there is evidence that other persons (such as children) have also been exposed to violence or threats of violence, those other persons may also be listed as protected persons.
Conditions of family violence orders
A family violence order may have any conditions that the court consider necessary to ensure the safety of the affected person and any child directly affected by the respondent’s conduct. However, the conditions of the order must be the least restrictive conditions the court can impose while still offering that protection.
Under section 38 of the Act, conditions of an FVO may include:
- not to contact the protected persons
- not to attend premises where the protected persons lives or works
- not to be in particular places
- not to locate or attempt to locate the protected persons
Where FVO conflicts with parenting order
In some cases, an FVO may be made with conditions that are inconsistent with the conditions of a parenting order that is already in place. In this situation, the parenting order will override the conditions of the FVO. This is because parenting orders are made by the Federal Circuit and Family Court of Australia, which is a Commonwealth court. Commonwealth court decisions take priority over state and territory decisions.
If a parenting order is in place with conditions that a person is to have contact with their children at certain times, but an FVO is made prohibiting them from having contact with those children at all, the respondent will still be permitted to have contact in accordance with the parenting order. However, any contact they have with the children outside of the terms specified in the parenting order will be a breach of the FVO.
Applying to change parenting order
If a person fears family violence by another person and wants to seek an FVO restricting the person from having contact with children but there is a parenting order in place that provides for contact to occur, the person should talk to a lawyer about seeking a variation to the parenting order.
If the parenting order is varied so that it does not contain a provision for contact to occur between the other person and the children, an FVO can then be sought with a condition that the respondent must not have contact with the children. If an FVO prohibiting contact with the children is in place before the parenting order is varied, the condition that prohibits contact with the children will take effect only when the parenting order is varied so that it no longer conflicts with the FVO.
Breach of family violence order
If a person has contact with children contrary to the conditions of an FVO (and there is no parenting order in place that permits contact with the children), they are guilty of a contravention of the FVO. This is a criminal offence punishable by a fine of up to 500 penalty units, five years imprisonment, or both.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.