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Apprehended Violence Orders and Family Law
In NSW, family law matters such as children, spousal maintenance, divorce and property, are dealt with by the Family Court of Australia, the Federal Magistrates Court, or sometimes the Local Court.
The Family Courts have to take into account any allegations of family violence when making orders concerning children. The definition of family violence is wide and includes any actual or threatened conduct by one person against another person that causes them to fear for their safety.
If you are involved in family law proceedings, it is important that you tell the court about any violence you have experienced so that the court can take this into account in its decisions. You should also tell the court about any previous or current Apprehended Domestic Violence Orders (ADVOs), domestic violence charges, or other court orders.
All orders concerning children are made on the basis of what is in the best interests of the child. Children have a right to have a meaningful relationship with both parents but must also be protected from abuse or family violence.
 A Family Violence Order is any order made by a court in any Australian state or territory to protect a person from family violence. Family violence refers to any actual or threatened violence towards a person or their property from a family member. An ADVO would be considered a Family Violence Order in a case in the Family Court.
How do AVOs and family law orders work together?
If there is an AVO and a family law order in place the family law order will override the AVO. So for example:
- An AVO states that the defendant must not go to the protected person’s house
- A family law order states the defendant should pick up the children from the protected person’s home at 4pm on Friday.
At 4pm on Friday if the defendant goes to the protected person’s house to pick up the children then he or she will not be in breach of the AVO. BUT if the defendant goes to the house at any other time or breaches any other part of the AVO at 4pm on a Friday, for example by threatening the protected person, then there will be a breach.
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What happens if an AVO was made before a family law order?
The court has to ensure that the family law orders do not expose people to family violence. If a family law order will be inconsistent with an AVO the Family Court must:
- state what part is inconsistent
- explain exactly how the children will spend time with the defendant
- explain the order to everyone
- send a copy to the police and court that made the AVO.
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What happens if a family law order was made before an AVO?
The Local Court has the power to vary a previous family law order when it makes either a final or interim order.
So for example, if the children are picked up from the protected person’s home under the family law order the Local Court can grant an AVO that prevents the defendant from going to the protected person’s home and vary the family law order so the children are picked up from somewhere else.
Additional orders in an AVO can also take into account family law orders or the need for you to go to mediation to reach agreement about matters affecting your children.
Additional order 5 states:
5. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation, or mediation.
Additional order 6 states:
6. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act 1975.
For more information, see Mandatory and additional orders.
If parties are ordered by a court to attend counselling, conciliation, or mediation, a defendant may be able to do so even if they have an AVO against them. Additional orders 5 and 6 make specific exceptions in relation to Family Court proceedings.
If you are applying for an AVO you should carefully consider whether you need additional order 5, additional order 6, or both. For more information, see Getting an Apprehended Violence Order.
If you have been served with an AVO you should carefully consider what orders you agree (consent) to before going to court. For more information, see Defending an Apprehended Violence Order. If you don’t know what to do you should get Legal advice.
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How do AVOs and parenting plans work together?
A parenting plan is a written agreement signed and dated by both parents that sets out a plan for the care of your children. A parenting plan is different from family law court orders as it is not enforceable.
Family law court orders can override AVOs but a parenting plan does not. However, if the AVO in your case includes Order 5 (which refers to written agreements) then it may be possible to follow both the AVO and parenting plan.
 Even if an AVO includes Order 5, doing what is set out in a parenting plan may still be a breach of other orders in your AVO. If you are a protected person or defendant and you are unsure of the meaning of the orders in your AVO you should get Legal advice.
For more information, see Apprehended Violence Orders and Family Law – Frequently Asked Questions.
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