The mum-of-two said he made her life a “nightmare” for years but is scared the AVO will impact on keeping custody of the children.
Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on how the Family Court decides on custody arrangements for children.
I’m a mum of two who’s recently split from my violent husband. He honestly made my life a nightmare for so many years and I had to leave before it was too late.
Unsurprisingly the break-up has got messy. I asked him to leave and he did but the next day he filed an AVO against me saying that I was violent (I hit him once to defend myself). Knowing that he was the violent one I went straight to the police and got my own AVO against him.
Now we’re going to the Family Court to arrange custody and I’m worried that I’ll be seen as the violent one as he has an AVO against me. What are my rights? – Anon, QLD
It sounds like you have been through a challenging time and have unfortunately been unable to resolve the issues amicably to avoid the expense, time and stress associated with the court process.
When the court is required to make parenting orders (known by many as ‘custody’ arrangements) the court must consider what is in the child’s best interest.
As a starting point, the law says that it is in children’s best interests for parents to have equal shared parental responsibility, unless there has been child abuse or family violence.
Having equal shared parental responsibility means both parents share decision making for significant long-term issues related to the children, such as education, health care and religious choices.
This is different to having equal time with each parent. The court will separately determine what is in the children’s best interests in terms of what time they will spend with each parent.
There are many factors a court takes into account when deciding what is in a child’s best interests, but protecting a child from physical and psychological abuse will be the most important consideration, and the current domestic violence orders are relevant to this.
Both you and your former partner have an obligation to advise the court about any allegations or risk of family violence, child abuse or neglect, and whether either of you consider you have been or are at risk of abuse, neglect or family violence.
The court may not immediately make parenting orders knowing there are domestic violence orders in place. They may require more information or order an assessment by a Family Consultant (such as a social worker or psychologist), or a report from an independent expert.
The court also has the power to appoint an independent children’s lawyer who can make recommendations to the court about what is in the children’s best interests.
It is unclear from your question if your former partner was abusive towards your children, if the children are listed on the domestic violence orders or you are fearful of any abuse or neglect towards them when they are in his care.
If you have any evidence that corroborates the abuse you (or if relevant, the children) experienced, this will be useful to provide to the court.
However, the court is well aware that often this evidence doesn’t exist because such abuse occurs behind closed doors.
If the court does conclude that the children are at risk of abuse, they will take this into account when deciding how much time, if any, they spend with you and the children’s father.
It will also be open to the court to order that any time spent with your children is done so under certain conditions or supervision.
Changeovers of the children can also be done at a contact service which is supervised and will also protect you from being alone with your former partner.
Parenting orders made by the court will override the domestic violence orders if they are inconsistent with each other.
These are really significant issues and we recommend you get legal advice if you haven’t already.
While you can represent yourself in court, a lawyer can give you advice about the strength of your case and what evidence you need to give you the best opportunity of success.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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