NSW 2nd AVO Against Husband and Custody of Children

[TBMum]

Hi There,
I'm looking for some guidance. I have 2 minor children who both refuse to see or spend time with their father for reasons of fear. The husband and I have been separated over a year now ( 2 in total, but we tried to 'make things work' in between for 2 months). Since then, he moved out due to being violent and abusive and the children saw him inflicting self harm.

I had to withdraw the first AVO on him in 2013 due to family pressure. Recently as he was harassing me, I complained to the police and they have put another AVO on him which included standard orders as well as order 5 & 9. court date to come soon.

In the last year, he has not spent a single day with the children. Due to his violent and abusive behaviour I was also scared to apply for child support which I have just done after the police said they would charge him with an AVO. the AVO covers the children and me.

My questions:
1. is it possible for me to get 100% custody of children as he has also hit the children?
2. as my biggest fear is the children's wellbeing under him, is there anything I can have in place?

Thank you,

TBMum in NSW

 

[AllForHer]

Parenting matters are governed by the Family Law Act 1975, which stipulates that any orders made by the court must be made in the best interests of the child.

The court uses section 60CC of the Act to determine what constitutes a child's best interests. The primary considerations are the benefit to the child of having a relationship with both parents, and the need to protect the children from harm.

Protecting children from harm very rarely means ousting one parent from the children's lives by awarding sole parental responsibility to the other. It also very rarely means ordering that the children spend no time with the non-residential parent. Quite often, the court protects children from harm by ordering contact with supervision, or moving changeovers to a public place.

The same principle applies when domestic violence orders are in play. Where parenting orders conflict with domestic violence orders, the parenting orders take precedent. In plainest terms, it is often the case that AVOs reflect a difficult divorce, not an unfit parent.

To attain sole parental responsibility, you would need to prove that it is not in the best interests of the children to share equally in parental responsibility.

If I may ask, how old are the children?

 

[TBMum]

They are 7,6. Does it not matter that it was his violent behaviour and abuse that caused the relation to break down?

 

[AllForHer]

Well, abuse and violence are only allegations until evidence is tested under cross-examination. It matters, of course, but perhaps not to the extent I think a lot of people wish it did.

Perhaps the best way to make sense of how allegations of family violence impact care arrangements for kids under the Act is to look first at the principles underlying it.

Summarily, parents don't have any rights simply for being parents. Only children have rights under the Family Law Act, and that right is the right to know, spend time, and communicate with their parents on a regular basis, regardless of what the relationship between their parents may be like.

Asking for a full residency order is asking the court to violate that right, and as an institution dedicated to upholding people's rights, I'm sure you can appreciate why the court would be at all times hesitant to interfere with a child's rights, particularly when those children are too young to protest against it.

Thus, where allegations of family violence are made, the court will make every possible effort to ensure the child's rights are upheld first and foremost, insofar as the child's best interests can be met concurrently. Rather than simply oust the father from your kids' lives, the court is far more likely to order steps to help address the problem, that being the father's violent behaviour.

You've said he self harms, which is symptomatic of depression, not sociopathy, so the court would be more inclined to order that he seek aid from a counsellor than to order the kids have nothing to do with their father.

If it was found that he suffered from something like bipolar personality disorder, then the court might order that his time with the children take place at a contact centre under supervision until such time that a report from a psychologist demonstrates that he is mentally stable.

I'm not saying these are definite outcomes, more that they have been outcomes reached by the court before, but it is very, very rare - as in, you would probably be wasting your time trying - for the court to make an order for no contact between a child and his/her parent. Basically, the court acknowledges that violence is an issue and that people have difficult break-ups, but it also tends to hold that people can be rehabilitated, and that includes fathers.

I hope this provides some perspective, in any case.