A defendant may object to an Apprehended Violence Order, in which case, the matter will be adjourned for trial at a later date. It is common that an interim Apprehended Violence Order will be issued until the trial.

You can object to an Apprehended Violence Order being made against you and have the matter adjourned for trial at a later date. Under these circumstances, an interim AVO will be issued until the trial date.

Whilst many apprehended violence applications are warranted some are not. If you have been served with an application that you consider to be unwarranted you should ask for a conference. Applications without proper basis can be dismissed by the Court at the hearing.

An Apprehended Violence Order can be initiated in the form of a complaint by either the protected person or by a police officer acting on behalf of the protected person.

Any person over the age of 16 can make a complaint for an Apprehended Violence Order by registering their complaint at the Magistrates Court.

If a child is not part of an affected family member’s (the person who needs protecting) application:

• a parent or guardian can apply for an intervention order if the child is under 18 or
• the child can apply for an intervention order if they are 14 or older and the court agrees.

In these cases the matter is usually heard in the Children’s Court.

In certain cases, the police are obliged to apply for an Apprehended Violence Order. Circumstances for police application for apprehended violence orders include:

• family violence situations,
• stalking/intimidation or
• child abuse.

This police obligation applies unless the person is at least 16 years of age and either the protected person intends to make a private complaint for an Apprehended Violence Order or the police believe there is a sufficient reason not to make the complaint.

Children who are exposed to family violence are particularly vulnerable. Family violence can have a serious impact on a child’s physical, psychological and emotional wellbeing.

If you are applying for an intervention order, you will be asked if you believe that your safety or the safety of your children is threatened by the respondent (person the application is against). If you fear for your children’s safety, you can include them on your application.

You can also ask the magistrate to change (vary) or suspend a parenting order. You can ask the magistrate to stop the children:

• living with the respondent,
• spending time with the respondent or
• communicating with the respondent.

If a child is not part of an affected family member’s (the person who needs protecting) application:

• a parent or guardian can apply for an intervention order if the child is under 18 or
• the child can apply for an intervention order if they are 14 or older and the court agrees.

In these cases the matter is usually heard in the Children’s Court.

A magistrate must consider if there are any children who have seen or heard the family violence. Therefore, the magistrate will ask the affected family member or respondent if they have any children and how the family violence has affected them.

A magistrate can decide to include a child on the final order, even if the applicant did not name them in the application. The child’s safety is the most important consideration.

If the magistrate decides that the child needs to be protected, the intervention order may say that the respondent can have no contact with the child.

An Apprehended Violence Order can exclude the defendant from premises, even if the defendant has an interest in the premises.

Each family Apprehended Violence Order has conditions to stop the respondent (the person the application or order is against) from using family violence. Conditions are rules that restrict the respondent’s behavior.

There are conditions listed on the application form for an Apprehended Violence Order. They include stopping the respondent from:

• committing family violence against the protected person,
• damaging the protected person’s property or threatening to do so,
• following the protected person or keeping them under surveillance,
• publishing on the internet or by email or other electronic communication any material relating to the protected person or pretending it comes from the protected person,
• approaching or remaining within a certain distance of the protected person,
• going near the protected person’s home or work or
• causing another person to behave in a way that is covered by the order.

The applicant (person applying for an intervention order) can also ask the magistrate to order the respondent to:

• return the personal property of the protected person or a family member,
• return jointly owned property that allows the protected person’s everyday life to continue with little disruption,
• hand in any firearms or weapons to police or
• suspend or cancel any firearms authority, weapons approval or weapons exemption.

The applicant can choose as many conditions as they like from the list. The applicant can also talk to the court registrar if they want to:

• include any other conditions that will make the affected family member feel safe or 
• apply the conditions to a respondent’s associate (a person the respondent can influence to act for them).

If necessary, the conditions of an Apprehended Violence Order can be tailored to cater for situations where the parties wish to maintain contact.

You have the right to be safe and so do your children. If you fear ongoing violence or intimidation you should contact the police immediately.

Protection issues are just as important as the right of children to spend time with both parents and sometimes those objectives are in conflict.

The court may issue an Apprehended Violence Order if it feels that there is a likelihood of, or that the person lodging the complaint has reasonable grounds to fear:

• the person receiving the order has a high propensity for violence or
• harassment, stalking or intimidation.

If, for any reason, you fear for your own safety or the safety of your children, the lawyers at Byron Bay Family Law & Mediation Specialists Melbourne can help you to find protection from family violence. You should discuss them with us at the earliest opportunity so we can identify with you what steps need to be taken for protection or what impact the incidents will have on parenting and property matters. We can advise on the forms of Apprehended Violence Orders available and help you obtain an order appropriate to your circumstances and adequate for your protection. We can also advise on the effect of an AVO on post separation parenting.

Byron Bay Family Law is a leading family law firm in Australia. Please contact us on 1300 635 529 to speak with our family and divorce lawyers today. You can also send through your enquiry online now and we will contact you shortly.

An Apprehended Violence Order (AVO) is a Court Order affecting the person you have taken the Order against. The Order might prohibit certain behavior or restrict certain activities. The Order is made by the court that prohibits the defendant from certain behavior, such as harassment, stalking, intimidation, violence or the threat of violence. The purpose of an AVO is to provide protection from this behavior in the future, it usually states that a person cease the behavior or must not go within a certain distance of the home or workplace of the person lodging the complaint. It may also prohibit the person from contacting you directly or through a third party. Other conditions may also be included.

The Court can make an AVO if a defendant consents to an AVO being made, or if evidence is heard proving that a person in need of protection fears violence or harassment by the defendant. The magistrate also has to be satisfied that there are reasonable grounds for these fears in order to make an AVO.

There are two types of Apprehended Violence Orders:

• personal safety intervention orders and
• family violence intervention orders.

A personal safety intervention order is a court order that protects a person from physical or mental harm caused by a person who is not a family member.

You can get an order to protect yourself, your children, property or people supporting you from the following behavior:

• assault and sexual assault,
• harassment,
• stalking,
• making a serious threat or
• property damage or interference.

In most cases these behaviors have to happen more than once to get an intervention order. They must also be deliberate. The person must know (or should have known) that their behavior would be likely to cause harm, apprehension or fear.

A family violence intervention order is a court order that protects a person from a family member who is using family violence. An order can also protect children, property or people supporting the protected person.

A protected person is someone protected by an intervention order. It can also be a person protected by a family violence safety notice.

Family violence is a substantial and serious problem in Australia. It particularly affects women in terms of incidence, risk and ongoing consequences.

Incidence	Risk	Ongoing Consequences
For women in relationships:
10% experience physical or sexual violence from their partner at some point in their lifetime.	The United Nations says domestic violence is the biggest health risk to women in Australia.	A Victorian study listed domestic violence as the leading contributor to death, disability and illness in Victorian women aged 15-44.
40% report at least one type of controlling behavior, including name calling, insults, put downs or behaviour that made the woman feel intimidated.	In 2007-2008 women were the victim in an intimate partner killing in nearly 80% of cases, this made women four times more likely to be a victim than a man.

Family violence and abuse are unfortunately a part of some relationships. When the relationship ends, or appears to be ending the violence may intensify. You do not need to live with violence, if you or your children are enduring abuse or family violence seek help from the police or your lawyer.

Family violence is harmful behaviour that is used to control, threaten, force or dominate a family member through fear. It includes:

• physical abuse, such as hitting or pushing a person around,
• sexual abuse, such as forcing a person to have sex,
• emotional or psychological abuse, such as controlling who a person can see and when, or calling them names or
• financial abuse, such as controlling a person’s money.

Family violence is also behavior that makes a family member fear for the safety of such things as:

• their property,
• another person or
• an animal.

If a child hears, sees or is around family violence in any way, they are also covered by the law. This includes if a child:

• helps a family member who has been abused,
• sees damaged property in the family home or
• is at a family violence incident when the police arrive.

Under family violence law, family members are:

• people who share an intimate personal relationship,
• parents and children, including children of an intimate partner,
• relatives by birth, marriage or adoption or
• people you treat like a family member – for example, a carer, guardian or person who is related to you within the family structure of your culture.

The law also protects a person from anyone who was a family member in the past.

State laws make provision for your personal safety, and can protect you from family violence or spousal abuse. If, for any reason, you fear for your own safety or the safety of your children, the lawyers at Byron Bay Family Law & Mediation Specialists Melbourne can help you to find protection from family violence. We can advise on the forms of Apprehended Violence Orders available and help you obtain an order appropriate to your circumstances and adequate for your protection. We can also advise on the effect of an AVO on post separation parenting.

If you are facing unwarranted accusations of family violence or abuse we can advise you on your options and assist you in defending the allegations.

Byron Bay Family Law is a leading family law firm in Melbourne. Please contact us on 1300 635 529 to speak with our family and divorce lawyers  today. You can also send through your enquiry online now and we will contact you shortly.

Both parents are responsible for financially supporting or maintaining their children.   The laws covering child support are the Child Support (Registration and Collection) Act, 1988 and the Child Support (Assessment) Act, 1989.

Child support – how much is paid by each parent for the needs of the child – is calculated by looking at each parent’s income, each parent’s expenses and the amount of care each parent provides.   First each parent’s “child support income” is considered.  This is the parent’s taxable income , minus what he or she needs to support him or herself .  So if a mom makes $35,000 a year and needs $20,000 to live on, her child support income is $15,000.  These two incomes are then added together to determine how much total child support is available from both parents combined.

Each parent’s individual child support income is divided by the total child support amount to figure out what percentage of each parent’s income should go to child support.   This is called the “income percentage”.

Then child care is taken into consideration.  The parent taking greater care of the child is making a financial contribution that is also recognised and that parent is entitled to pay less child support.  This is called the “care percentage” and it’s based on the number of nights a child spends with each parent.   This is used to determine how much that care costs in actual dollar terms.   The Department of Human Services has a fixed chart to make this determination.  This number, which is a percentage, is called the “cost percentage”.  This cost percentage for each parent is then subtracted from each parent’s income percentage.  If the number is negative, this indicates they are providing most of the child care and they do not need to pay child support.  If the number is positive, this is the parent who will pay child support.

The next step is to figure out the actual cost for each child, which is based on the parent’s combined child support income, the number of children and their ages.   There is a fixed chart that is updated each year.

The final amount to be paid is calculated by multiplying the child support percentage (of the parent with the positive percentage) by the costs of the child.

The Child Support Agency provides a clear, thorough example to demonstrate exactly how the process works, brought below.

M and F have three children, A aged 9, B aged 7, and C aged 5, who live mostly with M. The children spend 75 nights a year with F, who has regular care of the children. M has an adjusted taxable income of $30 000 and F has an adjusted taxable income of $50,000.

Step 1:

Work out each parent’s child support income by deducting the self-support amount of $18,252 from their adj

usted taxable income.

M has a child support income of $11,748 ($30,000 less $18,252)

F has a child support income of $31,748 ($50,000 less $18,252)

Step 2:

Work out the parents’ combined child support income.

$11,748 + $31,748 = $43,496

Step 3:

Work out each parent’s income percentage.

M = $11,748 ÷ $43,496 x 100 = 27.01%

F = $31,748 ÷ $43,496 x 100 = 72.99%

Step 4:

Work out each parent’s percentage of care for each child.

M has care of all the children for 290 nights, 79.45% of the nights, rounded to a care percentage of 80%.

F has care of all the children for 75 nights, 20.55% of the nights, rounded to a care percentage of 20%.

Step 5:

Work out each parent’s cost percentage for each child by looking up the table in section 55C.

M has a cost percentage of 76%

F has a cost percentage of 24%

(Note: a percentage of care is calculated for each child. As the care arrangements for these children are the same, the percentage is the same for all the children. If there are different care arrangements for different children, then they will have different percentages of care).

Step 6:

Work out each parent’s child support percentage for each child by subtracting their cost percentage for that child from their income percentage. As the care arrangements are the same for all the children we will show the one percentage that is used for all the children.

M = 27.01% – 76% = -48.99%

F = 72.99% – 24% = 48.99%

(This means that F is responsible for 72.99% of the children’s costs because they have 72.99% of the combined child support income. As F meets only 24% of the costs through care they need to transfer 48.99% of the costs to M through child support.)

Step 7: 

Work out the costs of each child.

The combined child support income is $43,496.

From the 2012 Costs of Children Table the total costs of the children (three children 12 or under) =

$8,757 + ($0.26 for every $ over $32,433)

$8,757 + ($43,496 – $32,433 = $11,063 x $0.26 = $2,876)

Therefore: $8,757 + $2,876 = $11,633

The cost of each child = $11,633 ÷ 3 = $3,878

Step 8: 

Work out the annual rate of child support payable by the parent with a positive child support percentage.

48.99% x $3,878 = $1,900

$1,900 x 3 (children) = $5,700

F is liable to pay M child support of $5,700 (annual rate).

(From “The Guide”, the CSA’s online guide)

There are two types of agreements parents can come to on their own regarding child support.

The first is called a “binding child support agreement” and there are several regulations regarding this type of agreement:

1. The agreement must be in writing
2. Both parents sign the agreement
3. It must include a statement by each parent that they received independent legal advice on the matter of child support
4. Each parent has a Certificate of Independent Legal Advice from their own lawyer.  The parents may NOT use the same lawyer.
5. It CANNOT be modified or changed.  It can only be terminated and a new agreement written up.

 

Parents can agree to any amount of child support in a binding agreement, but if they agree to less than the amount the Child Support Agency would have provided, the difference is not made up by Centrelink.

A “limited child support agreement” restricts the parent’s ability to make their own arrangements.  This agreement:

1. Requires a child support administrative assessment (see below).
2. It must be in writing.
3. Both parents must sign the agreement.
4. It does NOT require legal advice but it is recommended to consult with a Family lawyer.

Centrelink is part of the Department for Human Services.  They provide payments, including social security and child support.