Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
We hear of cases where one person threatens the other person that they will accuse them of being violent and report them to police.
We also hear of cases where people do things that lead to justified accusations.
We have compiled a guide for those who have been accused of domestic violence in a family law court case
ADVO – Protection Orders
Your partner or spouse may have gone to the police or to the court and requested an Apprehended Domestic Violence Order (ADVO).
An ADVO is generally made to protect someone from family violence.
An ADVO usually prohibits one family member from coming within a certain distance to another family member or stalking or harassing the other family member.
This could then be granted on an interim basis. This means that the order is only temporary until the date of the next court date.
Once you are served with the ADVO, all of the conditions immediately apply to you.
You should then start to prepare your arguments for the next court date so that the interim order is not made on a more permanent basis.
The next court date will be listed on the paperwork that was served on you.
You must ensure that you abide by all of the conditions of the ADVO.
There could be severe repercussions if you violate the conditions of the ADVO.
Even if your partner/ spouse says that it is OK to breach the conditions, do not do so, otherwise, you may find yourself facing criminal charges.
You need to understand the conditions of the ADVO. The standard conditions, otherwise known as the mandatory conditions, will always include orders that you do not do the following to the protected person:
- assaulting, molesting, harassing, threatening or interfering with the protected person;
- intimidating the protected person; and
- stalking the protected person.
Having an ADVO against you is not a criminal offence and it’s not listed on your criminal record.
If you break the conditions of the ADVO, the police will investigate the incident and where there is sufficient evidence, charge you and have the matter heard in the Local Court.
If that person is found guilty of the charge, a criminal conviction can be recorded.
Time with children
If your children are included on the temporary protection order, then you may be restricted from spending time with your children.
This may be a temporary condition until the matter is heard in court.
A parent subject to and ADVO can usually only come into contact with the other protected parent only under the following circumstances:
- Organising, delivering or collecting a child who is spending time with a parent or another person, as provided for by the Act; or
- Allowing the person to attend family counselling, family dispute resolution, family consultant meetings or court during family law proceedings.
Even where a court finds that domestic violence occurred between two parents, the courts are almost always going to try to find a way to keep your relationship with your children intact.
This can be done by providing an order that the accused or offending parent may have contact time with the children if there is a parenting plan in place.
Sometimes, the accusations that are made are nothing more than accusations, and the actions were a result of heightened emotions and deeper problems.
If you committed an act of violence towards anyone, there are things that you can do to ensure that you don’t repeat this behaviour again. It will also reassure the police, the protected person and the court that you have taken the initiative to address your problems and that this conduct will not reoccur.
This may include seeking mental health treatment, anger management treatment, or treatment for substance abuse.
If false accusations were made, you should be prepared to fight the accusations with evidence.
For example, if there are allegations that you are a drug addict, offer to the court that you are happy to take random drug urine tests to prove that you are not addicted to the substance that you are accused of using.
Criminal allegations and your family law court case
If there are pending criminal matters, this may affect the procedure or the outcome of your case in the Federal Circuit Court or Family Court of Australia.
It is sometimes that women apply for ADVO’s to gain an advantage in family law court cases about children or property.
If one party in a family law matter alleges that there was domestic violence, they will still need to provide the evidence and prove that the violence occurred to the court hearing the family law proceedings.
An ADVO may be considered as evidence of family violence, however, it will also be considered amongst other sources of evidence including expert reports and affidavits.