There is an AVO, can I still see my child?

Firstly, what is an AVO? There are two types of AVOs. Firstly, there is an Apprehended Domestic Violence Order (“ADVO”). This is an Order that is placed on you by a former partner or spouse. Secondly, there is an Apprehended Personal Violence Order (“APVO”), which is an Order where there is no domestic relationship between the parties but is made for the protection of a person, for example, between co-workers or neighbours.

There are several conditions that an AVO can have which protect a party from intimidation, harassment or violence.

An AVO can be made against you if the Court believes there is a reasonable likelihood that you may cause intimidation, harassment or violence to your former spouse or partner. 

When an AVO is made, there are several conditions that can be placed on you. These include:

• You must not do any of the following to your former spouse or partner or anyone they a domestic relationship with:
  • assault or threaten them,
  • stalk, harass or intimidate them, and
  • deliberately or recklessly destroy or damage anything that belongs to them.
• No longer allowed to reside at the family home
• Not allowed to contact the protected person except through the use of a lawyer,
• Not allowed within a certain distance from the protected person/s residence, work or school.
• Not allowed to be in the company of protected person for at least 12 hours after taking alcohol or drugs.
• Not allowed to possess any firearms or prohibited weapons.
• Not allowed to try and locate the Protected Person.

I have Parenting Orders

An AVO can affect the nature of your relationship with your child. When parenting Orders are made, many people are unclear as to how an AVO impacts those parenting Orders. Parenting Orders are made by the Federal Circuit and Family Court of Australia which has federal jurisdiction. AVOs are made by the Local Court that has state jurisdiction. Therefore, whenever there is an inconsistency between the parenting orders and an AVO, the parenting orders will be followed. For example, if the AVO states that you cannot go within 100 metres of your former partner’s residence and the parenting orders provide that you are to collect your child at a certain time from the mother’s residence, then you can attend the residence at that particular time to collect your child. You will not be in breach of the AVO in those circumstances.

What if I don’t have any Orders?

If you do not have any parenting orders and a Court is making an AVO against you, the Court will generally include an exception in the orders as follows:

• You must not approach the protected person or contact them in any way, unless the contact is:
  • through a lawyer, or
  • to attend accredited or court-approved counselling, mediation and/or conciliation, or
  • as ordered by this or another court about contact with child/ren, or
  • as agreed in writing between you and the parent(s) about contact with child/ren, or
  • as agreed in writing between you and the parent(s) and the person with parental responsibility for the children about contact with the children.

The above exception allows for the parties to communicate through a lawyer about parenting matters and allows an opportunity for parties to come to some form of agreement. If an agreement is reached, this will not be in breach of the AVO. However, if the other party withdraws their consent, you must not continue with the agreement as any contact between you and the other party will constitute a breach of the AVO.

The matter is in Court

If your matter is in Court and parenting Orders are being made, the Court is obliged to take into account the terms of the AVO and any allegations of family violence. However, the Court will make Orders that are in the best interests of the child and if there are any inconsistencies between the parenting orders and the AVO, then this will be outlined by the Court. As mentioned, the Parenting Orders will override the AVO.

If you are not sure of your obligations under an AVO and/or parenting Orders, contact Solari and Stock Lawyers on 8525 2700 or click here to request an appointment with one one of our Family Law Team.

Article written by Shweta Kumar
Photo by Kelly Sikkema on Unsplash

For further information on AVOs, feel free to read some of the following articles also written by our Family Law Team.

• How Can an AVO affect your parenting orders?
• Proposed Scheme to provide domestic violence history to partners
• Update to Coercive Control Laws
• Can I force my ex-partner to move out of the house?
• What is an apprehended violence order?