Apprehended Violence Orders and Family Law

Parenting orders are orders made by a court about the arrangements for the care of a child. They can be made by the Local Court of NSW and Federal Circuit and Family Court of Australia.

If there is an AVO and a family law parenting order, the parenting order will override the AVO if the orders say different things.

For example:

• An AVO states that the defendant must not go to the protected person's house
• A family law parenting order states the defendant should pick up the children from the protected person's home at 4pm on Friday.

If the defendant goes to the protected person's house to pick up the children at 4pm on Friday then he or she will not be in breach of the AVO. But if the defendant goes to the house at any other time or breaches any other part of the AVO at 4pm on a Friday, for example by threatening the protected person, then there will be a breach.

If you have parenting orders and an AVO, and you are not sure how they should work together, you should get legal advice.

When a person applies for parenting orders, they must tell the Court about any AVOs or any allegations of family violence relating to their child or a member of the child's family. This information must be included in an application for an Apprehended Domestic Violence Order (ADVO) under the heading 'Further information about the relationship between the applicant and the defendant'.

The Court must take into account any allegations of family violence when making orders about a child because it must ensure that the orders will not expose the child or another person to family violence.

The definition of family violence is wide and includes any actual or threatened conduct by one person against another person that causes them to fear for their safety.

If the Court makes a parenting order that is inconsistent with an AVO, it must:

• state what part is inconsistent
• explain exactly how the children will spend time with the defendant
• explain the order to everyone
• send a copy to the police and the Court that made the AVO.

The parenting order will override the AVO where they overlap.

When the police or a person applies for an AVO they must tell the Court if the parties have parenting orders, or if they are in the process of getting parenting orders.

When deciding whether to make an AVO, the Court must consider:

• the safety and protection of the protected person and any child directly or indirectly affected by domestic or personal violence
• how an AVO would affect contact between the protected person or the defendant and any child of either of those persons
• any parenting orders.

The Court can make an interim or final AVO that includes additional orders to take into account parenting orders or the need for you to go to mediation to reach an agreement about the care of your child.

The Court can also revive, vary, discharge or suspend a parenting order when it makes a final AVO. It can only do this if it is given new information that the family court didn’t have when it the made parenting order.

The Court can’t change a parenting order when it makes an interim AVO.

If the Court doesn’t vary the parenting order(s) and you want the parenting order(s) to be changed, you may be able to apply to the Court for a variation. Before applying to the Court, you should get legal advice.

Orders about family law and parenting.

6. You must not approach the protected person or contact her/him/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 child/ren, or

D) as agreed in writing between you and the parent(s) about contact with child/ren.

E) as agreed in writing between the defendant, the parent(s) and the person with parental responsbility for the child/children about contact with the child/children.

Note. Order 6(e) is an alternative to order 6(d).

This order may be customised to fit your situation.

For more information, see Types of AVOs.

If you don't understand your orders, you should get legal advice.

A parenting plan is a written agreement signed and dated by both parents that sets out the parenting arrangements for their child.

A parenting plan is not a legally enforceable agreement. You can’t be punished by the Court for not following the terms of a parenting plan.

A parenting plan doesn’t override an AVO.

If you have an AVO that is inconsistent with your parenting plan, you must follow the AVO. If you don’t, you may be charged with an offence.

If your AVO includes an order about family law and a parenting agreement in writing, you may be able to follow the AVO and the parenting plan. If you don’t understand how your AVO affects your parenting plan, you should get legal advice.

You can apply to the Court to have your parenting plan made into parenting orders. If the Court makes parenting orders, the parenting orders will override the AVO where they overlap. 

Orders about family law and parenting

6. You must not approach the protected people or contact her/him/them in any way, unless the contact is:

D) as agreed in writing between you and the parent(s) about contact with child/ren.

If your AVO includes this order, you should get legal advice about whether you can still follow your parenting plan.