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DOMESTIC VIOLENCE

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AVOs, ADVOs and APVOs

WHAT THE FAMILY COURT TAKES INTO ACCCOUNT

In making a parenting order, the best interests of the child are the paramount, most important consideration. The Court will consider a number of things:
 

  • The need to protect the child from physical or psychological harm caused, or potentially caused, by being subjected or exposed to abuse, ill-treatment, or violence
  • Domestic violence involving a child or a member of the child's family
  • Any ADVO that applies to the child or a member of the child's family.
    • Courts need YOU to tell them about:
       

      • Any history of domestic violence against the child or a member of a child's family and
      • Any ADVO in force for the protection of the child or a member of the child's family.  
        • The Court should make sure that any parenting orders are consistent with any ADVO, and that parenting orders don’t expose the child or the parents to a risk of family violence.

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DOMESTIC VIOLENCE AND THE FAMILY LAW COURT

If you are afraid of your partner or the father of your children tell your lawyer and staff members of the Family Court, so separate sessions or conference interviews can be arranged. If you have concerns that arise while you are there on the day, tell them as soon as possible.

In fact, you are obligated to let the Court know if there is domestic violence fears or actually present in any way, as they need to take it into consideration when figuring out living and contact arrangements for the children. It can also affect property and maintenance settlements.

A parent responsible for family violence may forfeit or seriously limit their ability to obtain orders for residence or contact with their child. The Court tries to balance a child’s right to know and be cared for by both parents, and a child’s right to be in a safe and healthy environment.

PARENTING ORDERS

Orders regarding children under the Family Law Act are called "parenting orders". They include:

  • Residence order:  This states with whom the child is to live. Unlike the old concept of custody, it does not automatically give a person responsibility for day-to-day care of the child. If this is sought, it can be dealt with in a "specific issues order".
  • Contact order: A contact order sets out how, when and with whom the child has contact. An order can be made for contact in person, in writing or by telephone.
  • Specific issues order: This deals with "any other aspect of parental responsibility for a child", such as responsibility for the day-to-day, long-term care. welfare and development of the child such as relationships, education and sport, change of name and other issues.

DOCS AND THE FAMILY LAW COURT

Child Welfare Laws can prevent the Family Court from making orders about a child or young person.  Generally these are Court orders and administrative actions that place a child or young person under the care, responsibility or parental responsibility of someone other than the child’s or young person’s parents. This can include adopted children, foster children, children with a guardian, including a Public Guardian, and wards of the state.

This applies until the child or young person is no longer subject to that child welfare law, or the state's Child Welfare Officer responsible for the child or young person gives consent for the Family Court to deal with them.

LOCATION AND RECOVERY ORDERS FOR CHILDREN

Perpetrators of domestic violence (abusers) may threaten to take away a woman’s children.  The Family Law Act includes a process for children to be located and returned, regardless of whether or not there is a parenting order made in favour of the applicant.

You can make an application for a location or recovery order if you are:

  • A person who has a residence order in relation to a child
  • A person who has a contact order in relation to the child
  • A person who is responsible for the child's day-to-day or long-term care, welfare and development of the child under a specific issues order
  • Any other person concerned with the care, welfare or development of the child.
    • You may have to provide information to the Court about the child’s whereabouts. If you’ve had an ADVO made for your protection, the information can be provided to the Court confidentially.

      ADVO'S OR FAMILY VIOLENCE INJUNCTIONS

      The Family Law Act 1975 defines family violence as:

      “Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family, that causes that or any other member of the person's family to fear for, or to be apprehensive about, his or her personal well being or safety.”

      This definition is a bit different from the requirements for an ADVO. It is possible to get a Family Violence Injunction from the Family Court, similar to an ADVO.

      An ADVO from the Local Court offers better protection than a Family Court Violence Injunction because ADVOs are stored on a central computer which the police have access to, and because a breach of an ADVO is a crime and the police can make an immediate arrest. The process is also simpler, ADVO’s cover more types of relationships, and breaches are dealt with more easily.

      ADVO APPLICATIONS AND PARENTING CONTACT ORDERS

      Occasionally, The Family Law Court and the Local Court may make orders which aren’t consistent with each other.  In other words, parenting orders and ADVO’s may not always agree and work together. Therefore it’s important to tell the Family Law Court of any domestic violence orders (ADVOs). The Family Law Court must make sure their parenting orders don’t expose anyone to domestic violence.

      If parenting orders and ADVO’s are inconsistent the parenting orders over-ride the ADVO, so make sure the Court knows of any ADVO’s beforehand.  You can also arrange to have ADVO’s modified to allow for contact with the other parent, if it is in the best interests of the child. Alternatively, other arrangements can be made, like having an independent person present during contact.

      VARYING CONTACT ORDERS WHEN APPLYING FOR AN ADVO

      When a Magistrate grants an ADVO application, they can make, revive, vary, discharge or suspend contact orders at the same time.

      If the Court grants an interim ADVO, a contact order cannot be cancelled (discharged), although it may be made, revived, varied or suspended for the length of the interim order or up to 21 days which ever is the shortest. In doing this the Magistrate must consider the child's right to have contact with the other parent.

      REMEMBER:  A Family Court can make a contact order that is inconsistent with the terms of an ADVO. If this occurs, the contact order prevails and the ADVO is invalid to the extent of the inconsistency. The Family Court must explain the reasons for making a contact order that is inconsistent with an ADVO (although the failure to provide this explanation does not invalidate the contact order).

      Thanks to www.lawlink.nsw.gov.au for much of this information.

      For more information see:

      Family Relationship Advice Line  - advice on parenting issues after separation.
      Tel 1800 050 321

IT MAY BE WISE TO APPLY FOR AN ADVO AS SOON AS POSSIBLE. DON’T FORGET TO LET THE FAMILY COURT KNOW OF ANY DOMESTIC VIOLENCE OR ADVO APPLICATIONS OR ORDERS.

http://www.austdvclearinghouse.unsw.edu.au/PDF%20files/family_law.pdf

You can download and also print a number of publications on Family Law in English and other languages here.