What happens when an AVO is made during Family Law proceedings?

When an Apprehended Violence Order (AVO) is made during existing or pending family law proceedings, it can raise urgent questions for parents.

The short answer: an AVO does not automatically override parenting orders, and the interaction between the two jurisdictions can be complex.

What is an AVO?

In NSW, an Apprehended Domestic Violence Order (ADVO) applies where the parties are in a domestic relationship and circumstances lead to the exercise of NSW Police discretion to protect a person from violence. An Apprehended Personal Violence Order (APVO) applies to parties who are not in a domestic relationship. Sadly, ADVOs are common in family law cases.

Individuals can also apply privately, through the NSW Local Courts, for an apprehended violence order, although you would usually need to engage a lawyer to conduct this private prosecution.

An AVO is a civil order, not a criminal conviction, unless it is breached. It commonly prohibits a defendant from:

• assaulting, threatening, stalking or intimidating the protected person
• contacting the protected person except through lawyers
• approaching their home or workplace
• damaging property.

Depending on the circumstances, the proposed terms of an AVO can also include orders which:

• prevent the parties from living together;
• prevent contact between the parties;
• prevent contact where a party has consumed alcohol within the previous 12 hours; and
• prevent a party from attempting to locate the other person.

Does an AVO decide custody?

No. The Family Court, in a parenting case, doesn’t simply rely on the fact an AVO exists – it looks at the evidence behind it, including the allegations, any police evidence, criminal charges, and whether findings of family violence have actually been made. An AVO made by consent without admissions carries less weight than one made after a contested hearing. From the Family Court’s perspective, an AVO would flag the presence of risk to the safety of the child, and the Court would then embark on an assessment of the level of risk to the child that the circumstances present, if the Court is called upon to make parenting orders. Often parents negotiate their own parenting arrangements, and if the Court is asked to endorse those arrangements by way of orders, and there is an AVO in place, the Court would require both parties to give undertakings that the arrangements they have negotiated do not present a risk to the children.

What if there is family violence?

The Family Law Act requires the Court to prioritise children’s safety. If there is evidence of family violence which is considered to present a substantial risk to the child/ren, this can affect the Court’s consideration of how to allocate parental responsibility, time with children, whether time is supervised, and communication and changeover arrangements.

What about existing parenting orders?

An AVO cannot simply cancel existing parenting orders. Generally, the orders continue to operate, though the AVO may include exceptions allowing compliance, or the parenting orders may later be varied if needed. Where no parenting orders exist yet, an AVO can make handovers and communication more difficult, so interim arrangements may need urgent attention. Courts aim to avoid making conflicting orders, and in limited cases parenting orders can prevail over an inconsistent AVO to the extent of the inconsistency.

Because family law and AVO proceedings sit in different jurisdictions, this can also work the other way. A family law order dealing with the parties’ interactions can, in some circumstances, take precedence over an AVO’s conditions – even where those conditions would otherwise prohibit contact between the parties. This generally requires the parenting order to expressly authorise the relevant contact. Given how easily this can be misunderstood, if there is any doubt about how a parenting order and an AVO interact, this should be clarified with a lawyer before either party relies on it, to avoid inadvertently breaching the AVO.

Disclosure and standard of proof

Parties should disclose to the Family Court any existing or pending AVOs, child protection involvement, and related criminal proceedings; failing to do so can seriously affect the case. Note that an AVO is decided on the civil standard (balance of probabilities), while criminal charges require proof beyond reasonable doubt, so an AVO can remain in place even if criminal charges are withdrawn.

Practical consequences

An AVO often means communication only through lawyers or parenting apps, supervised changeovers, and restrictions on attending a child’s school, sporting events, or the former family home.

Can one lawyer handle both matters?

Yes. While a family law solicitor can often assist with both parenting matters and ADVOs – advising on and defending applications, appearing in the Local Court, and ensuring parenting orders and AVO conditions don’t conflict – AVOs are often accompanied by other criminal charges, so a criminal lawyer would also be recommended to handle the criminal charge and the associated AVO.

We are here to help

At Fourtree Lawyers, our solicitors work across both family law and criminal law, managing ADVO applications and defences, parenting and custody disputes, urgent recovery and relocation applications, and related criminal proceedings under one coordinated strategy.

Call 1300 529 444 for 24/7 legal assistance or visit fourtreelawyers.com.au.

This article is general information only and does not constitute legal advice. For advice specific to your circumstances, please contact a qualified lawyer.