Two courts, one family

Where children are involved

A child can be named in an apprehended violence order as a protected person, and an order made between adults can still change how parenting arrangements work in practice. Apprehended violence orders are made in the Local Court. Parenting orders are made under the Family Law Act 1975 (Cth) in the federal family law courts.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

You are a parent and an order has changed everything

If your first fear is that you will not see your children again, the answer depends on what the order says and on what any parenting arrangement says. An apprehended violence order can include conditions that affect contact with children, and it has to be read together with any family law order or parenting arrangement rather than instead of it. Legal Aid NSW sets out how AVOs and family law fit together. Get advice on both before you make contact or change an arrangement.

That said, an order affects parenting in practice, and it can be taken into account in family law proceedings. A condition that prohibits contact with the other parent affects how changeover happens. A condition about approaching a school affects school pick-up. If the children are named in the order, the conditions apply to your contact with them as well, and you must follow the order exactly as written until it is changed.

The thing that does the most damage is a parent deciding that a condition cannot have been meant to stop them seeing their own child, and acting on that belief. It is a criminal offence to contravene the order, being the child’s parent is not a defence, and a contravention is precisely the kind of thing a family court hears about later.

So the order of operations is: comply with what is in force, get advice on both proceedings together, and then ask the right court to change the right thing. Often that means asking the Local Court to vary a condition so that a parenting arrangement can work. See variations.

How we help

What the work actually is

Telling you exactly what the order permits with your children

Whether the children are named, what the conditions allow, and what they do not. This is read line by line, because the difference between an order that permits contact for arrangements about children and one that does not is the difference between a normal weekend and a criminal charge.

Making changeover safe and lawful

Handover through a third person, at a public place, through a supervised service, or at a time and place the order allows. Whatever is arranged has to comply with the order as it stands, and be written down.

Asking for conditions that work for a family

Where a condition makes a parenting arrangement impossible, applying to vary it with a precise alternative, supported by the family law orders and the practical detail of school, work and distance.

Coordinating with family law proceedings

Making sure what is said in one proceeding is consistent with what is said in the other, and that the timing of each is deliberate. Evidence given in an AVO matter does not stay in that courtroom.

Where a child is the protected person

Advice on what that means, what can and cannot be sought, and how to approach a matter where the allegation concerns a child. These matters are handled carefully and without any suggestion that a child’s protection is an obstacle to be got around.

Working with children checks and employment

The Office of the Children’s Guardian may seek information about court orders relating to apprehended violence or domestic and family violence when assessing a working with children check. If your work depends on a check, that is dealt with before any decision about consenting.

Questions

Questions people ask first

Does an AVO stop me seeing my children?

It depends entirely on what the order says. If the children are not named and the conditions only concern the other parent, the order does not by itself stop you seeing your children, although it affects how changeover can happen. If the children are named as protected persons, the conditions apply to them and you must follow the order as written. Read the order with a lawyer before you make any arrangement.

We have parenting orders already. Which one wins?

This is the question to ask a lawyer immediately rather than to answer for yourself. Both are court orders and both bind you. Where they cannot both be complied with, the answer is to go back to a court and have it resolved, and to do that quickly. Do not choose between them on your own view of which is more important.

Can I use the children to communicate about handover?

No. Passing messages through a child is not a way around a no-contact condition, it can itself be a contravention where contact is prohibited through a third person, and it is bad for the child. Arrangements should be made through a lawyer, a family member the order allows, or a supervised service.

The other parent says I can come to the house.

Their permission does not lift a condition. If the order excludes you from the address, going there is a contravention whoever invited you. A condition is changed through the proper route for your order, not by permission.

Will the AVO be used against me in the Family Court?

A family court decides parenting on the child’s best interests and family violence is directly relevant to that. An existing order is a matter that can be taken into account. That is a reason to take advice on both matters together, and a reason not to consent to an order without understanding how it sits with the parenting case.

Will an AVO affect my working with children check?

It may be relevant. The Office of the Children’s Guardian conducts risk assessments and seeks information from agencies, including information about court orders relating to apprehended violence or domestic and family violence. An apprehended violence order is not a criminal conviction, but do not assume it is invisible. If your work or volunteering depends on a check, raise it at the start.

The children were listed on the order and I do not know why.

Ask for the application and the grounds, and have them read properly. Children are sometimes included as a protective measure rather than because anything is alleged against you in relation to them, and whether they remain named can be a question the court is asked about.

What to bring

Bring both files. A question about children is almost never answered from the apprehended violence order alone.

Every page of the order, and whether any child is named in it.
The application and the grounds relied on.
Any parenting order, parenting plan or family law proceedings, with the file number.
The current arrangements: where the children live, where they go to school, how changeover happens now.
Anything already agreed about handover, in writing.
Any family report, subpoenaed material or family law hearing date.
Any involvement by the Department of Communities and Justice.
Whether you hold a working with children check, and whether your work or volunteering requires one.