Family payments and care for children when an AVO is in place

15 January 2019 | All Children Separation & Divorce

It is unfortunately common for family breakdowns to occur after an Apprehended Violence Order (AVO) has been issued. This can add more complexity to an already highly emotional and sensitive situation, especially when negotiating family payments and care for children.

In this article, we break down the process involved in arranging family payments and care for children when an AVO is in place.

Arranging care for children where an existing AVO is in place

The first steps

Before you can go to Family Law Court to obtain parenting orders, ordinarily you must attend Family Dispute Resolution (FDR) to attempt to come to an agreement. However if there is an AVO in place, this may have an impact on your ability to attend FDR.

If you feel you should not attend for your own personal safety, you can apply to be excused. This can result in:

  • you may still be required to attend via a shuttle or by telephone or with the assistance of a lawyer
  • you are given a certificate stating FDR is not appropriate for your situation and you will then need to apply to the Court straight away for a parenting order

It is important to check the terms of your AVO before arranging attendance at FDR. We can help you determine whether FDR is a necessary step in your matter.

Going to court

If no resolution can be reached in FDR, you will need to go to the Family Law Court to settle your matter. Again, it is important to inform the courts that you have an existing AVO in place, or if there is a history of family violence.

Under the law, all children have the right to a meaningful relationship with both parents after a relationship breakdown. However if this exposes them to family violence, the courts will determine whether there should be a relationship between the parent and the children, and under what terms.

The specific details of any AVO or family violence will therefore have a bearing on the parenting orders decided by the court. The single most important consideration in this process is protecting the children, so the definition of “violence” is quite broad and can include actual violence, or the threat of violence, to those involved.

In preparing to see us about your matter, ensure you have a copy of your AVO and details of any family violence ready so we can submit these to the courts on your behalf.

Arranging care

In essence, the courts will look at your overall situation when determining care for the children. The aim will be for the parenting orders and the AVO to work together, not separately.

However, sometimes the terms of an AVO and parenting order could contradict each other, or be in conflict. In this instance, the parenting orders will override the terms of the AVO.

For example, if you have an AVO stating your ex partner cannot come to your home, this will be overridden by the parenting orders that state your ex partner must collect your children from your home at midday on Saturday. In other words, it will not be a breach of the AVO for your ex partner to come to your home at midday on Saturday to collect the children. However if they come to your home at any other time or for any other purpose, or if they do anything other than collect the children, this will be a breach of the AVO.

If there are inconsistencies between the parenting orders and AVO, in finalising your matter the Family Court will:

  • set out which part is inconsistent
  • explain the order to everyone, including exactly how the children will spend time with the offender
  • make a special order to protect the offender from an unnecessary breach and any further conflict between the parents

Parenting plans v parenting orders when an AVO is in place

It is important to note that parenting plans are different from parenting orders. Parenting plans are written agreements signed and dated by both parents. These are not considered court orders.

As a result, parenting plans do not override an AVO like a parenting order would.

If you have an AVO in place and a wish to arrange a parenting plan, you may only be able to do so via your lawyer.

Arranging family care payments when an AVO is in place

Generally, there are two types of financial assistance you may be eligible for after a relationship breakdown where children are involved:

  • Family assistance payments from Centrelink, and
  • child support (maintenance) from the other parent

Family assistance from Centrelink

As soon as possible after the relationships ends, you should contact Centrelink to apply for family assistance payments. As you deal with Centrelink in relation to this payment, the existence of an AVO will not have any impact on the application process.

Child support from your ex partner

Ordinarily you are required to apply for child support payments within 13 weeks from the time you separated. However, if an AVO is in place or you fear for your safety, you should inform Centrelink as soon as possible as it may be more appropriate for a representative to make the application for you.

Generally, it is easier to do this at the same time you apply for family assistance payments.

Determining payments

After your applications have been made, Centrelink will assess your application based on a number of factors including:

  • the costs of caring for children
  • the income of both parents
  • whether any other dependents live with either parent
  • whether any other children need financial support

Payments are determined based on a formula that is varied for each situation and processes are available should you wish to challenge any decision.

Next steps

Overall, the existence of an AVO does have an impact on arranging family law orders and payments. However the legal system has recognised that some situations are more sensitive than others and they have adapted to meet these requirements.

If you are seeking parenting orders and an AVO is in place, you should contact us before you take any further action as we can guide you through the legal process.

Need advice?

Please contact our office today on 02 4421 7455, email  [email protected] or book online now for a set fee initial appointment to further discuss how we can assist you.