If you or your child/ren have experienced family or domestic violence, an Apprehended Domestic Violence Order (ADVO) may be available to you as a form of protection if you are fearful for your safety. But what if there are parenting orders in place? How does this affect the ADVO and any shared care arrangements made for the child/ren? In this article, we explore 5 things you need to know about ADVOs in family law matters and the impact they can have on family law proceedings and parenting arrangements.
What is an ADVO and how common is it in Family Law matters?
An Apprehended Domestic Violence Order, commonly known as an 'ADVO' is a legal order designed to protect individuals from violence, threats, harassment, or intimidation by another person. They aim to ensure the safety and well-being of an affected party, typically a victim of domestic violence or abuse, the children of a victim or other's living in the same home as the victim, by imposing restrictions on the behaviour and contact between the parties involved.
ADVOs can include various conditions and restrictions depending on the circumstances. These may include prohibiting the perpetrator from approaching or contacting the person in need of protection (PINOP), attending their residence or workplace, or being within a certain distance of the protected person's residence, work or school.
ADVOs can be particularly relevant in family law disputes, given the prominence of domestic and family violence in the community and the frequency with which families are experiencing or living with family violence. Given that statistically levels of domestic violence increase around the end of a relationship, or are exacerbated following separation, a large proportion of matters that come before the Federal Circuit and Family Court of Australia ('FCFCOA') involve ADVOs.
How might an ADVO affect parenting arrangements?
Due to the conditions ADVOs can impose on a party, it can make parenting arrangements or parenting orders difficult to facilitate for the protected party, depending on what the arrangements are.
Generally speaking, where a parenting order issued by the FCFCOA is inconsistent with the conditions of an ADVO, the parenting order takes precedence. For instance, if a child is a PINOP and the conditions of the ADVO require the perpetrator not to come in contact with the child, but there are parenting orders requiring the child to spend time with the perpetrator, the parenting orders take precedence.
Another example of this is if the ADVO states that the perpetrator must not go to the home of a PINOP (which could be the former spouse, for example) but the family law parenting order states that the perpetrator must collect the child from that address on a certain day and/or time, then attendance at the address in compliance with the Court Orders will not constitute a breach of the ADVO.
Of course, the above is applicable only to parenting orders. Parenting plans or informal parenting arrangements do not override the conditions of an ADVO.
If you are unsure about how your parenting orders work when there is an ADVO in place, it's important to seek legal advice from an experienced family lawyer.
Similarly, if you are subject to an ADVO and wish to put in place measures to spend time with your children, then it is recommended to seek independent legal advice from an experienced family lawyer.
How does the FCFCOA approach AVDOs?
The Court has in place the Lighthouse Project which allows it to screen and vet families impacted by family violence.
When a matter comes before the FCFCOA and there are issues relating to family violence, the Court requires that a copy of the ADVO and any relevant orders are included on the Court file. The Court will take all the relevant precautions necessary to ensure the safety and protection of all parties to the matter. This can include conducting matters by Audiovisual link, using safe rooms at Courts, and conducting conciliation conferences or Dispute Resolution Conferences by shuttle so that the parties do not come into contact with each other.
Where children are involved, and the Court is making orders relating to parenting, the Court will only make orders that are in the best interests of the children. There are both primary and secondary considerations that the FCFOCA must consider, the primary ones being:
- the benefit to the child of having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
However, the second consideration being the need to protect the child will be given greater weight by the Court over the first consideration.
Ultimately, just because there is an ADVO in place does not mean that the Court will not make any parenting orders in your family law matter, however each matter has its own particular facts and circumstances and so it's important to have an experienced lawyer consider your matter and advise you in this regard.
If you are the subject of an ADVO, or a person in need of protection and are unsure about your rights and responsibilities and how it may impact or conflict with parenting orders, then it's important to speak to your lawyer about the conditions to ensure that the orders are not breached and that all parties are protected.
What if an ADVO is breached?
A breach of any of the conditions of the ADVO is a criminal offence. This means, a person who breaches an ADVO in NSW may face a maximum penalty of 2 years' imprisonment and/or a fine of $5,500.
The terms of imprisonment or the conduct of the party that led to the breach, may impact any parenting orders that the FCFCOA is considering. It could also heighten the fears of the PINOP, making negotiations regarding parenting difficult.
If you are a PINOP and you consider there has been a breach of an ADVO, report it to police immediately (including any domestic violence liaison officers with whom you have contact) and ensure that you and your family are safe.
If you are the subject of an ADVO and consider you may have breached your ADVO, contact your criminal defence lawyer as a matter of priority. If you are in the midst of a family law dispute, report this to your family lawyer.
How do you apply for an ADVO?
If you or your child/ren are experiencing physical violence at home, threats of physical harm, stalking, intimidation, or harassment, you may be in a position to obtain an ADVO to protect you and your family.
In NSW, often when these incidents are reported to police, and subject to their assessment of the situation, the police may apply to the Court on behalf of the person/s or persons seeking an ADVO. In these circumstances, there are no legal costs related to the ADVO or the Court Application and the matter is managed on your behalf by the NSW Police force. The ADVO application made by the police may also be in conjunction with criminal charges brought against the perpetrator.
You can also apply for an ADVO by yourself by filing an Application with the Local Court. You can learn more about this process through the information and resources found on the NSW Police website.
Need advice about ADVOs and your family law matter?
Our experienced family lawyers are here to assist if you have any concerns regarding your family law matter, ADVOs and/or specific parenting orders in place. Contact us on (02) 9262 4003 for a confidential discussion or submit an online enquiry.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
