FVOs and Access to Children (ACT)
In the ACT, a Family Violence Order (FVO) is an order made by the Magistrates Court to prohibit someone from engaging in family violence against another person or persons. FVOs include conditions to prohibit the respondent from committing acts of violence against the protected person or doing certain other things that may place them at risk. This article outlines how an FVO can affect a person having access to their children.
What is family violence?
Section 8 of the Family Violence Act 2016 contains the definition of family violence used in FVO matters in the ACT. It defines family violence as behaviour by a person in relation to a family member that may include:
- Physical violence or abuse;
- Sexual violence or abuse;
- Emotional or psychological abuse;
- Economic abuse;
- Threatening behaviour;
- Coercion or any other behaviour that controls or dominates or causes you a person to fear for their safety or wellbeing or that of another person;
- Behaviour that causes a child to hear, witness or be exposed to the behaviour mentioned above.
In the Federal Circuit and Family Court of Australia (FCFCA), the definition of family violence is contained in section 4AB of the Family Law Act 1975 as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.
Behaviour that may constitute family violence under that definition include:
- physical or sexual assault;
- other sexually abusive behaviour;
- repeated derogatory taunts;
- intentionally causing injury or death to an animal;
- intentionally damaging or destroying property; or
- unreasonably denying a person the financial autonomy that they would otherwise have; or
- unreasonably withholding financial support needed to meet their reasonable living expenses or those of their child, at a time when the person is entirely or predominantly dependent on the offender for financial support; or
- preventing the person from making or keeping connections with their family, friends or culture; or
- unlawfully depriving the person or a member of their family, of their liberty.
Under the Family Law Act 1975, a child is exposed to family violence if they see or hear family violence or otherwise experiences its effects.
Can an FVO prevent a person from having access to their children?
An FVO does not immediately prevent a person from seeing their children. Whether a person can have contact with their children after an FVO has been made against them by the other parent will depend on:
- Whether there are Family Law Parenting Orders in place;
- Whether a Parenting Plan is in place;
- Whether the FVO lists the children as protected persons; and
- The level and type of alleged family violence.
What if a parenting order is inconsistent with a family violence order?
The Federal Circuit and Family Court of Australia is responsible for deciding parenting matters. Commonwealth decisions override state and territory decisions. Parenting orders made in the FCFCA, therefore, supersede any inconsistent obligations of a state or territory-based family violence order.
Depending on the conditions of a family violence order, parties may be allowed to contact each other only when:
- delivering or collecting a child who is spending time with a parent or with some other person, or
- attending family counselling, family dispute resolution, a court children’s services meeting or other court events during family law proceedings.
If a parenting order states that a child is to be collected by the respondent in an FVO from the protected person in the FVO, and the FVO states the respondent is to not be within 100 metres of the protected person’s residence, collecting the child will not amount to a breach of the order as the purpose of attending the residence is to comply with the parenting order. However, if the respondent in the FVO attends the residence for reasons other than compliance with the parenting order, they will be in breach of the family violence order.
If a parenting order and a family violence order are inconsistent and you need clarity on the situation, please contact our office to speak with one of our family lawyers.
Applying for an FVO
The Federal Circuit and Family Court of Australia does not make family violence orders. How you obtain a family violence order depends on where you live. In the ACT, a family violence order can be obtained through the Magistrates Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.