Creating a Family Law Plan with an AVO
One of the most important components of protection against any family law dispute or violence is to have an Apprehended Violence Order (AVO). This is a court order that protects a person from being harassed, abused, stalked, menaced or assaulted.
An Apprehended Violence Order is a way to stop someone who is known to you or a stranger from intimidating, harassing, or threatening to hurt you. Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), an Apprehended Violence Order (AVO) also known as a Restraining Order, is an official document that states that a person cannot do certain things to another person.
It is granted through the local court to provide protection and prevent further offences. If you and the other party have a child together you will need to make agreements and work with any orders for the benefit and safety of your child.
In this report, we've broken down everything you need to know about AVOs and Family Law.
Key Points
- Understand what AVOs can and cannot do.
- Determine why you need an AVO in your family law plan.
- Create a family law plan with an AVO to keep you and your family safe.
AVOs and Parenting Orders
Parenting orders are made by a court detailing the arrangements for the care of a child and/or children. They can be made by the Federal Circuit and Family Law Courts.
If there is an AVO present at the time of issuing a family law parenting order, the parenting order will override the AVO if there is opposing information.
As an example, if an AVO explicitly states that the defendant must not visit the protect person's house, if the parenting order states that the defendant has parental duties that require visiting the residence, such as dropping off a child after school, this will override the AVO instructions.
During the application process for a parenting order it is also pertinent that the Court are aware of any AVOs or allegations of family violence against any family members or children.
The Court must also always take into account the best interest of the child, so will consider any allegations of family violence when making orders surrounding the safety of the child.
This is also to ensure that neither the parenting order nor the AVO (if present) will expose the child or any other person in the vicinity to family violence.
As previously stated the parenting order will override the AVO if there is any overlapping.
In some instances, a parenting order may have been issued before there is a need for an AVO.
If this is the case, it's important that when the police or individual apply for the AVO that they let the Court know if the parties involved have an issued parenting order, or if they are in the process of applying for one.
When assessing the grounds for an AVO the Court will consider:
- The safety and need for protection of the protected person and any child and/or children directly or indirectly affected by the violence
- Would an AVO have an affect on the contact between either parties and any persons involved, including children
- Any pre-existing parenting orders
Alongside these considerations, the Court can issue an interim or final AVO that would include any additional information and direction to take into during the creation of a parenting order.
If applicable the Court will also make a recommendation for parties to attend mediation to reach an agreement in regards to the care of the child.
If the Court has been given new information that was not made available when the parenting order was made, the Court have the power to revive, vary, discharge or suspend a parenting order when issuing a final AVO.
The Court cannot change a parenting order when it makes an interim AVO, but if you want the parenting order to be changed you may able to apply for a variation. Our team of expert lawyers at Justice Family Lawyers can help you with this.
It's key to note that there is a big difference between the mechanisms of a parenting plan with a parenting order, and the influence AVOs will have on these.
A parenting plan is a written agreement signed by both parents that outlines the parenting arrangements between both parties and their child and/or children.
However, this is not a legally enforceable agreement and you will not be punished by the Court if you do not follow the established terms.
A parenting plan will not override an Apprehended Violence Order, and if you have an AVO that is inconsistent with the stipulations of your parenting plan you must follow the AVO- it is an offense to not comply.
If your AVO happens to include an order about family law and a parenting agreement in writing it is possible you will be able to follow both the AVO and parenting plan simultaneously, though it is best to seek professional legal advice about this.
You can also apply to the Court to have a parenting plan made into parenting orders.
Creating a Family Law Plan with an AVO
Defined under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) an AVO is a court order intended to protect a person from fear of physical or personal harm.
An AVO does not always need to be between intimate partners or couples, it can be applied by any two people or a person and a business.
Once the order is made it is an offence to breach an AVO which can attract jail time and/or a fine. While an AVO is intended to help protect a person from harm, it cannot physically stop someone from hitting or threatening someone.
It is important to be aware that an AVO does not always provide an immediate solution to family problems, however it does provide a layer of legal protection that the Court will enforce should a breach of the order occur.
An important step in creating your family law plan is making sure that an AVO is taken out when needed and to begin the process as soon as possible. You should request an AVO from the police and provide valid and necessary information for the order.
Legal advice for the best action to take under the circumstances and what type of order would suit your situation best can be obtained from a family law solicitor. It is also important to ensure that any family law plan, including a parenting plan or order, is kept up to date and takes into account any changes which are applicable to the order or issues that arise due to the AVO.
We also recommend reflecting on the plan periodically to ensure that the order still has the desired impact, both legally and emotionally.
At Justice Family Lawyers we understand the complexities of family law and that creating a strategy to protect you and your family is necessary.
An AVO provides an important step in the process, as it ensures that if the worst were to happen and an act of violence were to be committed, then legal proceedings can begin. We recommend deeply thinking and considering why an AVO would be necessary in your family law plan and it is always best to keep both parties informed of any AVO that is put in place.
Conclusion
An AVO can provide important protection to individuals and families in Australia and can be part of an effective family law plan. It is vital to understand the limitations of the order, understand why it is necessary and create a plan with an AVO to protect yourself and your family.
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.
