Parenting Orders – Considerations of the Court
In child custody matters, when making a parenting order, the main consideration of the court is whether the proposed arrangements are in the best interests of the children. The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’, but it...
Mistakes made in Child Custody Proceedings – Watch Your Behavior
INTRODUCTION A traditional Chinese curse simply put is “May you live in interesting times” and ‘interesting times’ is the most charitable description of the daily happenings of those parents entering into the affray of child custody proceedings. Seeing our own client’s daily personal battles i...
Making your AVO work for you
Most people find their AVOs to be highly effective in preventing violence, intimidation and harassment. You have every reason to be hopeful that the defendant to your AVO will take proper notice of your AVO, and that you will have no further trouble. In the end, however, an AVO is an order of the court not jus...
Women and Family Law
This is the tenth edition of Women and Family Law. It states the law as at April 2014 that applies to married and de facto couples (including same sex de facto couples) after relationship breakdown. This booklet provides a starting point for finding out information about the law. It provides some answers to comm...
Share the Care Parenting Plan – Collaborative Parenting Apart
Divorce and separation are painful for everyone involved–particularly children. At this challenging time children need support, love and contact with both parents. Some certainty about the future is also very important for everyone. A written parenting plan, worked out between parents, will help clarify th...
An Invitation to Split!! Binding Financial Agreement / Pre-Nuptial Agreement
Wallace & Stelzer and Anor  FamCAFC 199 Background to the case `A couple, known by the court as Mr Wallace and Ms Stelzer, met in 1998 at the Sydney club where Ms Stelzer worked soon after Mr Wallace split from his first wife. He was 51 years old, divorced and came into the marriage with an "ove...
Domestic violence can involve a wide range of behaviour, including physical, emotional and verbal abuse, as well as stalking and intimidation. The Crimes (Domestic and Personal Violence) Act 2007 allows people to obtain restrictive orders against other people to protect them from apprehended violence and other forms of unwarranted contact. In NSW, these are called Apprehended Violence Orders (AVO’s).
To order an AVO, a Local Court Magistrate must be satisfied that the person applying for the AVO fears, on reasonable grounds, that the alleged perpetrator will commit personal violence against them or will engage in conduct to intimidate or stalk them. However, the Court can order an AVO regardless of whether these requirements have been satisfied if the person to be protected is a child, or if the person has a significant intellectual disability. Every AVO made by a court prohibits:
* Assaulting, molesting, harassing, threatening or otherwise interfering with the protected person
* Engaging in any other conduct that intimidates the protected person
* Stalking the protected person
All of these conditions also apply to people with whom the protected person has a domestic relationship.
However, to ensure the safety of persons who the court believes needs protection, a court may impose any other prohibitions or restrictions on the alleged perpetrator’s behaviour that appear necessary or desirable.
If you have been charged with, and subsequently breached, the conditions of your AVO, and you are alleged to have used violence when committing the alleged breach, a term of imprisonment may be imposed on you, regardless of the status of your criminal record. The only way you can avoid this result is by retaining the services of an experienced and skilled criminal lawyer who may be able to persuade the court to find the breach less serious than that alleged, or simply defeat the alleged charge completely. In addition, if you have been issued with an AVO that you feel is unnecessarily burdensome, our expert criminal lawyers can assist you reach a more equitable outcome.
Alternatively, if you require assistance in obtaining an AVO against your spouse, ex-spouse, partner, ex-partner, family member, or anyone else who has threatened or harassed you, please contact one of our criminal lawyers who will inform you of all your options and provide you with sound legal advice as to the best course of action you can take.
What is domestic violence?
Domestic Violence can occur in any sort of relationship, and can be directed towards both spouses/partners and children.
Domestic violence can include:
- Wilful Injury: this includes any form of assault, such as hitting, punching or strangling
- Wilful Damage: this includes any damage directed towards your household possessions, your car, or your even your residence
- Intimidation or Harassment: this can include repeated telephone calls or other forms of inappropriate communication, such as persistent watching or stalking
- Indecent Behaviour Without Consent: this includes sexual contact or activity that you have expressly or implicitly made known is unwelcome
In Australia the Family Court and the Federal Circuit Court take family violence very seriously. The Courts are guided by the following principles in responding to family violent concerns:
- Safety is a right and a priority for all who attend and work at the Courts
- Family violence affects everyone in a family, including children
- Family violence can occur before, during, and after separation and it may affect the ability of people to make choices about their family matter and to take part in Court events
- The Courts have a particular concern about the immediate and possible longer term adverse impacts on children who experience or witness family violence
Even if children do not directly witness the violence, they are often very aware of it
For more information please see the Department of Human Services ‘Family and Domestic Violence Strategy’.
Apprehended Violence Orders (AVOs)
An apprehended Violence Order (AVO) is an order made by a Court against a person who makes you fear for your safety, to protect you from further violence, intimidation or harassment. Such Orders can be obtained during a visit at the Police station.
AVOs are divided up into two categories:
- Apprehended Domestic Violence Orders (ADVO) are made where the people involved are related, living together or in an intimate relationship or have previously been in this situation. They are also available to people who are or have been in a dependent care arrangement with another person, including paid carers and to people living in the same residential facility.
- Personal Violence Orders (APVO) are for all other categories of victims where the parties involved are not related and do not have a domestic relationship (e.g. neighbours, colleagues etc.)
There is a range of orders commonly made by the Court in relation to Apprehended Violence Order proceedings. Those common orders are as follows:
When the Court is granting an AVO to an applicant, the following orders must be made:
- The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s);
- The defendant must not reside at the premises at which the protected person(s) may from time to time reside or work, or other premises.
The orders below are discretionary orders.
- The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises, (home/work);
- The defendant must not go within of the premises at which the protected person(s) may from time to time reside or work, or other specified premises, (home/work);
- The defendant must not approach, contact or telephone the protected person(s) except as agreed in writing or for the purpose permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation. The defendant must not approach, contact or telephone the protected person(s) except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorized by an order, or a registered parenting plan under the Family Law Act 1975;
- The defendant must not contact the protected person(s) by any means (including through a third person) except through the defendant’s legal representative;
- The defendant must surrender all firearms and related licenses to police;
- The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises:(school/child care/other);
- The defendant must not approach the protected person(s) within twelve (12) hours of consuming intoxicating liquor or drugs;
- The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s);
- Other orders.
Orders by consent and without admission
Apprehended Violence Orders (AVOs) can be made by consent and without any admission of wrongdoing by the defendant.
Generally, consenting to an AVO without admission guarantees a quick resolution of the matter, an important reduction in legal costs and the avoidance of a formal hearing.
At GMH Legal our team has received appropriate and targeted training in dealing with family and domestic violence concerns. We are aware of the nature, features and dynamics of such issues and have the expertise needed to identify our clients’ concerns and respond appropriately.
Domestic violence and parental responsibility
When the Court makes a parenting order it assumes that it is best for the children if the parents have equal shared responsibility and cooperate on decisions about major long-term issues including education, health and religion.
However any decision made in the Family Courts must:
- Recognise any violence in the family
- Ensure any orders it makes are in line with an ADVO that already applies to your family
- Ensure the children are not exposed to an unacceptable risk of violence
- Consider the children’s rights to know and have a relationship with both parents.
Therefore, in circumstances where there has been domestic violence, or family violence, as it is often referred to, there will be no presumption of shared parental responsibility.
Please refer to the NSW Government ‘Family law, children and domestic violence’ pamphlet.
Before starting proceedings in the Family Court or the Federal Circuit Court, parties are required to attend mediation with a qualified family dispute practitioner and make a genuine attempt to reach an agreement in relation to the arrangements for the child.
If there has been domestic and family violence or child abuse or you feel there is a risk to you or your children’s safety you do not have to go to dispute resolution first.
You can go straight to Court to apply for an order. However you must be able to prove the abuse or violence or a risk of these if you do not have a Certificate. The Court must believe that your fear of violence or concern for your wellbeing or safety is reasonable.
For more information please refer to the Domestic Violence Resource Centre’s ‘Preparing for Mediation’ section.
Property settlements are determined by the Court based on the contributions (financial and non-financial) and needs of each of the parties to the relationship.
When Courts are dealing with property settlement, they tend to consider the contributions of the party who is suffering from domestic violence as more valuable because of the arduous circumstances in which they were made.
Unexpected consequences of domestic violent report
At GMH Legal we take allegations of domestic or family violence very seriously and recognise its devastating effect on victims. Nevertheless we believe it is essential for our clients to understand the consequences that flow from making such reports to the authorities.
Following a report of domestic violence, as a matter of law, members of the Police Force are required to file an application for an Apprehended Violence Order (AVO) in Court to protect the person making the complaint from the alleged perpetrator. In addition, depending of the circumstances, the Police may also bring an assault charge against the alleged perpetrator.
Once a report of domestic violence has been filed, it will be up to the Police to decide whether the above mentioned steps (Application to the Court and assault charge) should be taken against the alleged perpetrator.
Members of the Police Force will not be bound by the opinion of the alleged victim and may proceed with the charges without his/her consent, even if the victim refuses to assist them with the enquiry.
Once again it is important to note that at GMH Legal we do not suggest that domestic violence should not be reported, but rather that the applicant must be aware of the consequences that flow from such allegations Consequences include the start of court proceedings against the alleged perpetrator, loss of employment, creation of a criminal record and significant legal costs to defend the charges.
Over the years we have witnessed many relationships breakdown irretrievably and families undergoing serious financial hardship following the report of domestic violence only ‘for the record’.
Do not hesitate to contact GMH Legal if you wish to discuss the options and strategies available to you and your family. Please also refer to the Family Court ‘What is Family Violence’ section.
Chronology of disputed cases
From the filing of an Application in Court, the average delay by the Court is currently 2-2½ years. If the matter requires an interim hearing, the current period of delay until the interim hearing is approximately four to six weeks.
While matters requiring urgent attention can be expedited, they must be considered exceptional in nature.
Call the experienced team at GMH Legal to assist you in your matter.
A free consultation with GMH Legal is an opportunity to gain deep insights into your legal situation and all of your options.
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- Over 60 years of combined legal experience
- Outstanding track record with a winning approach
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- Meet our team now.