Can I visit my children if I have an AVO?

Feeling that you've been unjustly separated from your children can be an incredibly painful experience.

And while the mandatory conditions of an Apprehended Violence Order (or ‘AVO') will not prevent you from visiting or even living with your kids, additional conditions placed in the order – or even separate orders and arrangements made in family law proceedings – may just do this, putting you at risk of committing a criminal offence, such as contravening an AVO, if you breach them.

Here's an outline of the rules.

What is an Apprehended Violence Order?

An Apprehended Violence Order (AVO) is a court order designed to protect a person from violence, threats or intimidation by another person.

There are two types of AVOs:

• Apprehended Domestic Violence Orders (ADVO): which are intended to protect people from violence or threats of violence from someone with whom they have or had a domestic relationship.
• Apprehended Personal Violence Orders: which are intended to protect people from similar behaviour regardless of the relationship.

Under section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) a person will be in a “domestic relationship” with another person if the person:

• is or has been married to the other person, or
• is or has been a de facto partner of that other person, or
• has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
• is living or has lived in the same household as the other person, or
• is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987 ), or
• has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or
• is or has been a relative of the other person, or
• in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person's culture

If the Court makes an ADVO (including an interim ADVO) for an adult (over 16 years), this will include as a protected person under the ADVO, any child with whom that person has a domestic relationship.

Mandatory and additional conditions

The mandatory conditions of an AVO are that:

You must not do any of the following to a protected person or a person with whom the protected person has a domestic relationship:

• Assault or threaten them,
• Stalk, harass or intimidate them, or
• Intentionally or recklessly destroy or damage any property that is in the possession of them or belongs to them.

These are the conditions that must be contained in every AVO.

However, the court can include additional orders, which can relate to matter such as:

• People you are not permitted to approach or contact,
• Places you are not permitted to enter or go near,
• Complying with the terms of family court orders, and
• Prohibitions on firearms.

It is these additional conditions that often gets people in trouble with the criminal law.

For example, an additional condition of the AVO may be that you are not allowed to attend, or even go within a specific distance of, the home in which you formally resided with your partner (or former partner as the case may be) and your children.

Knowingly breaching that condition by attending the home will place you at risk of being charged with the crime of contravening an AVO.

The Offence of Contravening an AVO

Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) prescribes a maximum penalty of two years imprisonment and/or a fine of $5,500 for contravening an order contained in an AVO.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You contravened a prohibition or restriction specified in an Apprehended Violence Order, and
2. You did so knowingly.

The section further provides that:

1. Unless the court otherwise orders, you must be sentenced to a term of imprisonment if your contravention involved an act of violence,
2. A court must record its reasons for not imposing a prison sentence if your contravention involved an act of violence
3. The requirement of imprisonment does not apply to those under the age of 18,
4. A ‘protected person' under an AVO cannot be convicted of aiding, abetting, counselling or procuring a contravention of the AVO, and
5. A police officer must make a written record of any decision not to initiate criminal proceedings.

If the officer suspects on reasonable grounds that a contravention has occurred, or if an alleged contravention has been reported to the officer.

You are not guilty of the offence if:

1. In the case of an AVO made by a court:

• You were not present in court when the order was made, or
• You were not served with a copy of the order

1. In the case of an AVO otherwise made, you were not served with a copy of the order,
2. Your contravention was necessary to attend a mediation under section 21 of the Act,
3. Your contravention was done in compliance with a property recovery order, or
4. Your contravention occurred unknowingly.

Other defences to the charge include:

1. Self-defence
2. Duress, and
3. Necessity.

Parent Visitation Rights

The enforceability of parenting arrangements following separation depends on the type of agreement and whether the Family Court has made an order. Specifically, there is an important distinction between:

• An informal verbal or written agreement or a Parenting Plan; and
• Parenting orders, including consent orders.

An informal agreement regarding parenting arrangements is generally unenforceable in most circumstances. A Parenting Plan, which is a voluntary written agreement between parents, is equally unenforceable although the Family Court can consider any Parenting Plans in making its determinations about custody.

Legally enforceable parent visitation rights come in the form Family Court orders called parenting orders.

Consent orders are a type of parenting order which occur when both parents agree to custody and visitation arrangements, and the court formalises this arrangement with an order.

Other parenting orders can occur when parties cannot agree to custody and visitation arrangements so the court steps in to resolve the matter. In determining the arrangements  placed on parenting orders, the Family Court must consider:

• The need to protect the child from physical or psychological harm or exposure to abuse, neglect or family violence; and
• The benefit to the child of having a meaningful relationship with both parents.

Contravening parenting orders is against the law, and parenting arrangements will be enforced by the Family Court.

Will You Breach An AVO By Contacting Your Child?

Determining whether or not you can contact your child after an AVO has been taken out against you requires consideration of:

• Whether your child is listed as a protected person under the order.
• Whether there are additional conditions about contact in the AVO.
• Whether parenting orders are in place regarding parental visitation rights.

Generally, if a child is listed as a protected person under an AVO and there are no parenting orders in place then you cannot contact your child as this would breach the AVO.

Situations are more complex when parenting orders are in place and an AVO has been subsequently take out. In this situation, the parenting orders are still in effect unless the final AVO explicitly varies, discharges or suspends any pre-existing parenting arrangements. If there are inconsistencies between parenting orders and an AVO, the parenting orders prevail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.