When parents separate, they will often obtain Parenting Orders which set out how the children of the relationship will be cared for. When there is family violence, an Apprehended Violence Order (“AVO”) may be taken out on one of the parties. This article examines the impact of an Apprehended Violence Order on any Parenting Orders that are in place.

What is an Apprehended Violence Order?

An AVO is an Order issued by the local court in your state-based jurisdiction. It is issued for the protection of a person who has been subjected to violence, including stalking and intimidation. The police can seek an AVO on behalf of someone else, or you can apply privately yourself.

There are two types of Apprehended Violence Orders in NSW:

1. Apprehended Domestic Violence Order ("ADVO"); and
2. Apprehended Personal Violence Order ("APVO").

An ADVO is between persons who live together and an APVO is for parties who do not live together. For example, an ADVO might be between a couple and an APVO might be for neighbours.

Below is the standard condition on all AVO's in NSW.

1. The defendant must not do any of the following to the person they have a domestic relationship with:
   1. assault or threaten the protected person,
   2. stalk, harass or intimidate the protected person, and
   3. deliberately or recklessly destroy or damage anything that belongs to the protected person.

A protected person is the person whom the AVO is designed to protect from the offending party. A protected person is the victim.

An AVO is a civil order, however, if it is breached it becomes a criminal offence.

Additional Orders attached to an Apprehended Violence Order

There can be additional orders attached to an AVO. For example, the defendant:

• is not to contact the protected person except through a lawyer; or
• cannot attend within a certain distance of the protected person's workplace or residence.

If there are children involved, then an AVO will list any child as a protected person on the proviso they reside with the protected person listed on the AVO.

How long does an AVO last?

A final AVO can last for up to two years and before it expires, the protected person can apply for an extension if needed. If the Court does not specify the time frame for the AVO, it will last for 12 months.

If an AVO is disputed, the matter proceeds to a hearing where a magistrate will decide to either allow the AVO or dismiss it.

What is a Parenting Order?

A Parenting Order is an Order issued by the Federal Circuit Court and Family Court of Australia in the federal jurisdiction. A Parenting Order sets out how parents will care for their children, including decision-making and arrangements for spending time with the children.

When there is an AVO and Parenting Orders at the same time

Where there is a Parenting Order and an Apprehended Violence Order in place at the same time, the provisions of the Parenting Order shall prevail.

You can still be in breach of the AVO if you do not comply with the conditions. Likewise, there are consequences for non-compliance with Parenting Orders. For example, if pick up of the children is at 10.00 am each Saturday from the protected person’s home and the person with the AVO against them attends the home outside of the time allocated in the Parenting Orders, they are in breach of the Apprehended Violence Order.

The Federal Circuit Court and Family Court of Australia will always consider the allegations of family violence when making Parenting Orders. Evidence surrounding an AVO will be considered when making orders for children and parenting arrangements between the parties.

Compliance with Parenting Orders when there is an AVO in place

It is important to respect the terms of both an AVO and any Parenting Orders but you need to remember that Parenting Orders override an AVO as Parenting Orders are made in a Federal Court.

If you are subject to an AVO and also able to spend time with your children, there are some key things to consider when communicating with the other parent about the care of the children.

1. Keep a diary as a record of all interactions with the children and the protected person.
2. Sometimes Parenting Orders incorporate orders for the way parents are to communicate about the children, such as via email or text. If Orders are made about the form of communication, then you should ensure all communication is respectful and in the format specified in the orders.
3. Keep records of all communications.
4. Only communicate about the children and ensure the communication is succinct and straight to the point. It is important to understand that communicating too much (whether via email or text) can also be considered harassment.

Can I change Parenting Orders after an Apprehended Violence Order has been issued?

You can change Parenting Orders after an AVO has been issued either by consent or through a court application. You should seek legal advice if you are considering changing your Parenting Orders.

Get help from a family lawyer

If you’ve separated and need advice in relation to obtaining Parenting Orders or any other family law matters, our family lawyers are able to assist.

Contacting E&A Lawyers

For more information or to arrange a consultation with a lawyer, you can call or email us.

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