When do ADVO’s and Parenting Orders Overlap?

KEY TAKE-OUTS:

• It is common for Criminal Law and Family Law to overlap when a relationship breakdown involves a high level of conflict and children.
• It is important to understand the impact of what an Apprehended Domestic Violence Order (ADVO) may have on future parenting negotiations or Parenting Orders for your matter.
• This blog will explore the jurisdictional powers of the Federal Circuit and Family Court of Australia (FCFCOA) and the local courts in overriding or varying Orders.
• Secondly, this blog will address how Parenting Orders can be framed to accommodate the protective conditions of an ADVO.

Let’s start with the basics – What is an ADVO?

An Apprehended Domestic Violence Order (ADVO) is an order made by the court to protect a person from being harmed by another person who they are currently or were previously in a domestic relationship with. An ADVO aims to protect a person who fears for their safety due to violence, threats of violence, intimidation, harassment, stalking, property damage or threats of property damage. An Application for an ADVO can be made by the person in need of protection (PINOP), a guardian of a child or the police.

An ADVO will specify the name of the PINOP, which may be the vulnerable parent or child of the relationship. The mandatory orders included in an ADVO prohibit the defendant from:

1. Assault or threaten, stalk, harass or intimidate, or intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of the PINOP.
2. Engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship; and
3. Stalking the protected person or a person with whom the protected person has a domestic relationship.

Conditions of an ADVO

It is important to note that the above mandatory orders allow the PINOP and defendant to remain living together in the same home, or for the defendant to continue spending time with the children whilst the ADVO is in place.

However, an ADVO may include additional orders that the court believes is necessary to ensure the safety and protection of the PINOP. Some examples of these Orders are as follows:

• The defendant must not reside at the premises at which the protected person may from time to time reside or other specified premises.
• The defendant must not enter the premises which the protected person may from time to time reside or work, or other specified premises.
• The defendant must not go within a certain distance of the premises where the protected person may from time to time reside or work, or other specified premises.
• The defendant must not approach or contact the protected person by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.
• The defendant must not approach the protected person or contact them in any way, unless the contact is through a lawyer, to attend accredited or court-approved counselling, mediation and/or conciliation or as ordered by this or another court about contact with children or as agreed in writing between you and the parent about contact with children, or as agreed in writing between you and the parent and the person with parental responsibility for the children about contact with the children.

Framing parenting agreements to prevent family violence

It is possible to frame parenting agreements in alignment with the protective conditions provided in an ADVO to prevent family violence post-separation. Your lawyer can help you negotiate and implement specific clauses in the parenting agreement to protect you or the child from the other parent and to encourage the defendant’s compliance with the ADVO. Some examples may be:

• No room for grey areas – only uses specific, short and unambiguous language!
• Spend time with arrangements – specify days and time periods for the parent to spend time with the children.
• Communication – specify the method of communication, days and time periods, including the telephone number or ensure that all communication is directed through legal representatives.
• Changeover location – nominating an independent and safe location for the protected person to drop off/collect the children.
• Restrictions – restricting a parent from consuming alcohol or consuming illicit substances before, or whilst, spending time with the children.
• Supervised contact – the defendant can only spend time with the children in the presence of a third party or at a supervised contact centre.
• Include a sunset clause – refers to specifying how long the agreement should remain in place. For example: this agreement shall remain in place until further written agreement or order).

Can a Parenting Order override an ADVO?

The FCFCOA has the power to make Parenting Orders that override an inconsistent clause of an existing ADVO made by the local court. For example, a father has an ADVO made against him where he is not permitted to have any contact with the child. A Parenting Order can override the condition in the ADVO by stating that the father shall spend supervised time with the child on a Saturday from 10:00am until 12:00pm on a fortnightly basis.

However, if an incident of family violence occurs and an ADVO has been made AFTER Parenting Orders have been made…the local court has the power to invoke the family law jurisdiction to change or suspend existing Parenting Orders. For example, the father commits an act of violence towards the child during a supervised visit. In this circumstance, the local court can make an ADVO listing the child as the person in need of protection and suspend the existing Parenting Orders in place.

If you wish to have a confidential discussion about your family circumstances and would like some assistance with creating a parenting agreement that is safe and encourages compliance with an existing ADVO, please do not hesitate to contact our family or criminal lawyers to book an appointment at your earliest convenience.

**Please note that you should not rely on this blog as legal advice and we recommend that you make an appointment with a solicitor.**