If I get an AVO taken out against me, will it affect my rights in a child custody dispute?

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Making a police report (for a ‘police AVO’) or filling out an Apprehended Violence Order (AVO) form (for a ‘private AVO’) can be relatively quick and straightforward. But it can potentially have far-reaching consequences for the other person.

Many AVOs are taken out during the context of a domestic relationship breakdown and unfortunately they may be done with underhanded motives, particularly if there are children involved.

But what are the consequences of being the subject of an AVO?

First, it is important to understand that an AVO is not technically a criminal offence.

Many people do not contest an AVO that has been taken out against them, and there may be valid reasons for that decision. An uncontested AVO will normally be finalised “without admissions” and there will therefore be no finding of guilt.

You can go to court on the allocated date and tell the Magistrate that you wish to “accept the AVO without admissions”, and the Magistrate will make that notation on the court papers. This will mean that the contents of the “grounds of complaint” have not been established.

So while contravening an AVO is a criminal offence, merely getting an AVO taken out against you is not.

Choosing not to defend an AVO is cheap and quick. But before agreeing to an AVO, you should think about the potential consequences upon licences such as firearms or security licences, and particularly the impact it may have upon family law proceedings.

AVOs are meant to be for the protection of the Person in Need of Protection ( or ‘PINOP’) for a police AVO or the ‘Applicant’ for a private AVO. But they can also cover anyone who lives with that person, including children. This is the case even though they do not demonstrate any proven offence. And significantly, the fact that an AVO exists is often used by the PINOP or Applicant to suggest that the other person (the defendant) is a violent or otherwise unsuitable parent, even if the defendant accepted the AVO without admissions.

For that reason, many family lawyers that act for AVO defendants will advise their clients not to consent to AVOs, and will often work with criminal defence lawyers to beat the AVO.

While some AVOs are made on legitimate grounds, many are used as a strategic manoeuvre by parents fighting over children.

Fortunately, judges in the Family Law Courts are becoming more and more aware of this, which means that an AVO will not necessarily have a heavy impact on your family law case – especially if you agreed to the AVO without admissions.

AVOs are not the only area where mere allegations can affect a child custody dispute.

In a family law court, allegations of child abuse and violence generally are taken very seriously and can lead to a parent being denied unsupervised access to their child if it is found that there is an unacceptable risk of harm.

While protecting children from abusive parents is no doubt very important, the risk that unfounded claims may be used by one unscrupulous party to achieve as much custody as possible should also be taken into account.

In a leading case of M v M, the Judge could not satisfy himself that sexual abuse HAD occurred “on the balance of probabilities” but he couldn’t rule it out either. On this basis, he deprived a father of access to his daughter after he was accused by his former wife of sexually abusing the child.

The Judge in that case decided that there was an “unacceptable risk” to the child – and didn’t make a definitive finding regarding the allegation.

When the case was appealed, the Judge’s finding was confirmed – and the law is that family law courts do not need to make a finding of guilt in the same way the criminal law courts do before they can make decisions against a party.

This seems inconsistent with the whole premise of law – decisions are supposed to be made on fact, not suspicion.

And this can have substantial implications for those merely accused of committing offences, whether those charges are prosecuted or not, and even if the person is found to be innocent.

All of this creates the unfair situation where, in the Family Court, those accused of very serious crimes do not even have to be prosecuted, let alone found guilty, for a judge to deprive them of contact with their children.

It appears that part of the problem is that dealing with serious allegations like violence and abuse are increasingly becoming a core business for the Family Law Court – although there are convincing arguments why this should not be the case.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

4 Comments

  1. Rodney paul

    Thank you very much for this info I found it very helpful as I can not afford a lawyer and my ex painter has put a avo out on me and has stop me from seeing my kids as none of the things she has said is untrue I was going to fight the avo but what I have read here that it’s better I don’t and just agree to avo but not after to why it was set and then go to family law to try and see my girls also if you have any one can help me even if it just over the phone would be helpful to me as legal aid can’t help and many phone calls to leave people say they can’t help me it’s so sad a father like me can not see his kids all over there mum .thank you

  2. Daniel

    this whole AVO thing is so unfair. i dont want to ever ever see my ex again. i wanted to leave her so she ran at a table to cause bruising and 2 days later said i pushed her up against a wall. the law is aiding spiteful people to have power. power and control which in essence is domestic violence. i just wanted to leave her and now i may be facing an avo which family law court may say, now you cant see your son. my son loves me so much and the legal system needs to step up and stop aiding violence!

  3. Jo

    There are many valid AVO’s and many forms of abuse. This article is full of personal opinion and claims of it being ‘unfair’ to protect yourself and your children aganist violent behaviours by applying for an AVO are what continues this denial of violent and controlling behaviour and projects blame on others without accountability. No AVO is given without reasonable grounds. As a lawyer, you should be ashamed of this article and your professional requirement to remain factual.

  4. Davey

    “No AVO is given without reasonable grounds.”

    And just because they’re “reasonable” Jo doesnt necessarily make the allegations true!

    I myself have suffered false allegations within the Family Law Court. Because of the false allegations the ex has seen to it that Im to be completely wiped out of my daughters life.

    She has now used the local courts to place an AVO on me, as this will help her in the family law court. She is manipulating the system in the hope of getting what she wants, wasting court time and making light of what an AVO is genuinely for, those that really are in danger.

    Ugar is right, as this is unfair to a parent thats fighting parental alienation in the Family Law Court whilst being slandered in the local court with an AVO. Open your eyes Jo!

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