Mid Mountains Legal Blog

How does an ADVO (made in NSW) affect parenting orders?

Anthony Steel

Parenting orders generally require separated parties to co-operate around sharing the care of children. They may require contact between parents at changeover or to allow them to discuss parenting decisions. When family violence occurs between parents with parenting orders and one parent applies for an Apprehended Domestic Violence Order (ADVO), it can be unclear how the ADVO will affect the arrangements under the parenting orders. This article outlines how ADVOs impact on Family Law parenting orders.

Inconsistency between orders

Parenting orders are made in the Federal Circuit and Family Court of Australia, which has federal jurisdiction. In New South Wales, ADVOs are made by the Local Court, which has state jurisdiction. In Australia, Commonwealth law and court orders override states and territory law and court orders. Consequently, parenting orders override any inconsistent obligations of an ADVO.

For example, if the parenting orders in place state that you are to collect your child at 5:00pm Friday from the residence of the protected person of an ADVO, but the ADVO states you are not to be within 100 metres of the residence, you will not breach the ADVO by attending at the residence to collect a child pursuant to the parenting orders. However, if you attend the residence of the protected person for any reason other than in compliance with the parenting orders, you will be in breach of the ADVO.

What if there are no parenting orders?

When a domestic violence incident cause the breakdown of a relationship, an ADVO may be taken out before arrangements have been made regarding care of the children.

When the parties to an ADVO have children and the ADVO places a restriction on contact, the following condition is usually included:

You must not approach the protected person or contact 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 children, or

D) as agreed in writing between you and the parent(s) about contact with children; or

E) as agreed in writing between you and the parent(s) and the person with parental responsibility for the children about contact with the children.

This condition allows for communication between the parents through a lawyer regarding parenting matters. It also allows the parties to attempt to reach agreement on parenting arrangements by attending counselling, mediation or conciliation. If the parents reach a written agreement regarding parenting arrangements, even with no orders are in place, contact between the respondent and the protected person pursuant to that agreement does not breach the ADVO.

Written agreements about parenting arrangements which are not court orders are known as parenting plans. Parenting plans are not legally enforceable and a parenting plan does not override an ADVO. If a parenting plan is in place and the ADVO allows contact between parties at changeover as agreed in writing, if the protected person revokes their agreement to that aspect of the parenting plan, any contact taking place thereafter will breach the ADVO.

What if there is an ADVO when family law proceedings start?

The family courts are required to make parenting orders consistent with the child’s best interests. The Family Law Act 1975 requires the court, when making decisions about children, to consider allegations about family violence.

If the court makes an Order which is inconsistent with the ADVO, it will outline the inconsistency before making the Order.

Family courts Orders override ADVOs. A copy of the parenting Orders must be annexed to an ADVO to make the Local Court aware that another order has overridden the conditions.

What now?

The penalties for breaching an ADVO are severe and include up to two years imprisonment and/or a $5500 fine.

Contact us for legal advice or representation if you or someone you know is unsure about your obligations under an ADVO or under Family Law Orders.

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