Clash of Laws: AVOs vs. Family Law Orders

A recent question posed to the Attorney General by local MP Helen Dalton has shed light on a critical and often confusing issue for families in the Murray electorate: the conflict between Apprehended Violence Orders (AVOs) and federal family law parenting orders.

Ms Dalton is the independent member for the Murray electorate.

The inquiry, directed at the state’s top legal advisor, raised concerns about what happens when a federal court's decision on child contact clashes with an AVO issued by a local court. This is a question that directly affects the safety of families, particularly children and other vulnerable people, across our communities.

Parenting Orders Prevail

The Attorney General’s response was clear: it is government policy that federal family law parenting orders can override AVOs when their conditions are inconsistent. This is not a matter of choice but a legal principle enshrined in the Family Law Act 1975 and the Australian Constitution. Under these laws, a federal law always takes precedence over a state law where there is a conflict.

This means that if a family law order permits a parent to have contact with their child, that contact is allowed even if an AVO says the parent must not go near the child or the child's other parent.

Safeguards and the 'Best Interests of the Child'

Mrs. Dalton's question also addressed the crucial issue of safety. The Attorney General’s office explained that despite this legal hierarchy, there are important safeguards in place.

• Courts Must Consider Safety: When a Family Court makes a parenting order, it is legally required to ensure the order is consistent with any existing AVOs and, most importantly, does not expose a person to an unacceptable risk of family violence. The child’s best interests are the paramount consideration in all decisions.
• Clear Explanations Required: If a court does issue a parenting order that is inconsistent with an AVO, it must provide a detailed explanation of how the contact is to take place. This is designed to minimise confusion and ensure that everyone understands the specific arrangements.
• Courts Can Vary Orders: Crucially, a local court issuing an AVO has the power to vary or suspend a pre-existing parenting order to ensure the safety of the individuals involved. This means the court can work to resolve inconsistencies and protect people from harm.