When an Apprehended Violence Order (AVO) is made, safety is the immediate focus. But if children are involved, how are parenting arrangements affected?
An AVO and parenting orders sit in two different legal systems. AVOs are governed by NSW criminal law whilst parenting orders operate within the federal family law system.
An AVO can significantly affect parenting arrangements. It can reshape parental responsibility, time spent with children, and even which parent a child lives with under family law orders.
It is important to understand how these systems interact.
Interaction between two legal systems
Parenting arrangements are governed by the federal Family Law Act 1975. The Crimes (Domestic and Personal Violence) Act 2007 governs AVOs in NSW.
These systems can overlap. If there is inconsistency between a parenting order and an AVO, the parenting order generally overrides the AVO to the extent of the inconsistency. However, that does not mean the Family Law courts ignore safety concerns.
Best interests of the child
In family law, the best interests of the child are paramount. The Family Law courts prioritise child safety above all else.
When determining parenting arrangements, Family Law courts consider:
- The benefit of a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm (which is given greater weight).
If an AVO has been made due to allegations of violence or intimidation, the Family Law courts must take that into account.
A child as a protected person in an AVO
If the child is named as a protected person in the AVO, parenting arrangements can be directly affected. A parenting order may prohibit:
- The defendant approaching the child;
- The defendant spending time with the child;
- The child attending school or extracurricular activities.
The Family Law court will assess whether the AVO defendant can safely spent time with the child and under what conditions. Parenting time may be suspended or supervised.
An AVO between parents only
Even if the child is not named in the AVO, parenting arrangements can still be affected.
If one parent is protected from the other, issues may arise such as:
- decision making responsibilities;
- communication between parents about the child;
- changeover arrangements; and
- attendance at events.
The existence of an AVO signals to the Family Law court potential risk which they must carefully assess.
The Family Law court may introduce structured communication methods including third party intermediaries and parenting apps.
Supervised time and safety measures
If violence or intimidation has been alleged, the Family Law court may order supervision of time spent with a child.
Supervision can take place through:
- professional contact centres;
- agreed third parties; and
- structured handover locations
Supervised arrangements aim to preserve the parent-child relationship whilst managing risk to the child. Whilst orders that time be supervised are not automatic, they are common where there are safety concerns.
Shared parental responsibility and AVOs
An AVO does not automatically remove parental responsibility. However, findings of family violence can influence the appropriateness of equal shared parental responsibility. If the court determines that the risk to the child is significant, it may decide that sole parental responsibility is in the child’s best interests. Decision making by one parent about a child’s health, education and religion may be restricted or removed.
What if the AVO is later dismissed?
If an AVO is dismissed after hearing, its impact on parenting arrangements may be significantly reduced. However, AVO outcomes are influential but not determinative. The Family Law courts assess evidence independently. Dismissal does not automatically mean allegations are disregarded.
Conversely, if an AVO is finalised by consent without admissions, the Family Law court may still examine the underlying facts.
Strategic use of AVOs and cross applications
Unfortunately, AVOs sometimes arise in high conflict separations.
Courts are alert to the possibility of strategic or retaliatory applications. False or exaggerated allegations can damage the maker’s credibility in Family Law proceedings. The Family Law court’s focus is on the child’s safety rather than tactical advantage.
Interaction between AVOs and parenting orders
If there is inconsistency between an AVO and parenting orders, the Family Law Act provides mechanisms to reconcile them. Parenting orders made after an AVO may permit contact, provided safety measures are in place. However, legal advice is essential to avoid accidental breaches.
Co-existence of safety and parenting arrangements
An AVO can significantly affect parenting arrangements. Whilst the Family Law court aims to preserve a meaningful relationship with the child where possible, the child’s safety is paramount.
Navigating the intersection between AVO proceedings and parenting orders requires careful legal strategy.
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