AVOs and Child Custody – How to Avoid the Death of the Family Unit

May 19, 2016

Man with children cartoon, holding his head in his hands

Family law is not a practice area in which we actively seek work. It is no secret that it is an emotionally-charged area that is usually far from pleasant. However, we do undertake work on family law issues, for our long-term clients and when other criminal, corporate or business matters require it. AVO matters, on the other hand, are something we do regularly. Last week we had an interesting case where the two areas overlapped, and it occurred to us that this might be a common problem faced by our readers.

The biggest gripe with family law matters our clients voice is delays. In the Family Court or Federal Circuit Court, we see delays of up to three years just to get a final hearing date. In some cases, even procedural adjournments will cause a delay of three to six months. Of course, this depends on the issues in the case and the estimated duration of the hearing. While child custody matters are generally dealt with much quicker than purely financial or property issues, the delays can still be extreme. It is no secret that Federal Government budget constraints, and particularly a current lack of appointed Judges, are the biggest causes. The Law Society of NSW (among other bodies) have been pushing for change and reforms in this area, but for the time being, it is what it is.

We have posted in the past about AVOs, and particularly the ability of some people to abuse process by making false allegations. These matters are dealt with in the Local Court of NSW, and by relative standards, are dealt with fairly quickly. In saying that though, it will generally still be around three months from the time an allegation is first made to Police until the determination of the matter at a final hearing. For other domestic violence matters where actual charges are being prosecuted (for example for assault, stalking, intimidation and so forth), that timeframe can more than double.

Often what we see in practice is that, unfortunately, where a complaint has been made about domestic violence and there are children of the relationship, the complainant will usually take it upon themselves to deny the other parent any access to the child. Of course, in genuine cases, this may well be the right thing to do, although we do see a relatively high proportion of cases where such allegations are false and the children are used as a bargaining (or rather blackmailing) tool, typically to influence the outcome of a matrimonial property settlement. Needless to say, for those genuinely loving parents who have been falsely accused, the result is utterly devastating, as on top of the hurt from the breakdown of the relationship, they suffer the temporary loss of their relationship with the child. In the formative years of a child, this can have serious impacts. To add to this, there is the added anxiety that the inherent delays and uncertainty of the process bring.

Luckily, there is a way to by-pass some of this angst – it is a little-known fact that the Local Court of NSW has jurisdiction to hear applications for parenting orders in some circumstances, such as where an AVO application or domestic violence charge is pending in the same Court. Similar jurisdictional extensions exist in other States and Territories. As timeframes in these jurisdictions are substantially more expedient, a successful applicant parent could obtain at least interim parenting orders in as little as two weeks (as we achieved recently).

The fact that domestic violence allegations have been made bears upon such an application much less than one might expect. If the allegations are still only allegations, i.e. a Court has not determined them or there is no other actual evidence before the Court to establish the truthfulness of the allegations, the Court will not delve into the allegations in an effort to determine them before making a parenting order. In other words, such allegations will not, of themselves, disentitle a parent to access to their child, unless of course there is strong evidence to substantiate the allegations. On the other hand, if allegations have been made regarding violence or abuse of the child or the safety or the child (as opposed to the other parent), or exposure of the child to such things, then an application for parenting orders is almost certain to fail, at least in the interim.

Of course, it all comes down to what is in fact in the best interests of the child, and what is reasonably practicable to implement for all parties concerned. The law’s two primary considerations in this regard are the need for the child to have a solid relationship with each of its parents, but also the need for the child to be protected from harm. The overarching principle, in considering these objectives and others, is a consideration of what is in the child’s best interests. The Court looks to a range of factors and determines this on the basis of the evidence. However, the starting position is the legislative presumption that both parents have equal shared parental responsibility, as distinct from access or custody rights. Generally though, if the former is the case, the latter follows.

The legislation covering parenting orders (child custody) was amended significantly in 2006. The leading case to consider the new amendments and the correct approach for the Court to take in determining applications for interim orders, actually involved almost a dozen detailed allegations of domestic violence on the part of the wife. In that case, the wife had set out affidavit evidence detailing such allegations. However, they remained allegations, and were not supported by any real evidence. The father was initially rejected on his application for interim parenting orders. The trial Judge rightly held that the allegations were sufficient to displace the presumption of equal shared parental responsibility, but wrongly determined that this was also sufficient cause to deny the father interim parenting orders allowing him access to the child (he proposed a shared custody arrangement in specific time intervals), until the Court had determined whether or not the allegations were made out at the final stage. The father appealed to the Full Court of the Court of Appeal, who rightly held that, while the allegations were sufficient to displace the presumption, until determined on a final basis, they could not be given weight in considering whether it was nevertheless a case where the primary considerations were satisfied and it was within the child’s best interests and not overly impracticable to either party that the arrangement sought by the father be put in place. The matter was remitted back down for retrial, and the father was ultimately successful.

In our matter in the Local Court, the same logic was applied. In our case, there was only one allegation, which had not yet been determined at trial, and the evidence in the Police brief was inconsistent with the allegations advanced. As we sought only interim orders, it was not necessary for the Court to determine the allegations conclusively. Further, as we sought for our interim orders to apply until further final orders issued from either the Family Court or the Federal Circuit Court (where such matters are usually determined on a final basis, as opposed to the Local Court), the Local Court actually referred our matter to the Family Court on an urgent basis, thereby allowing us to avoid traditional delays.

Hopefully this is not relevant to you, but if it is and yours is a genuine case, we hope it provides you with some encouragement.

As always, this is a general statement only – actual advice and applicability of the above will depend on the particular circumstances of each case.

As per usual, feel free to contact us regarding similar or other issues.

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