AVO - Apprehended Violence Orders

Lawyers NSW

What is an Apprehended Violence Order (AVO)?

In NSW, an Apprehended Violence Order or AVO is a Court order made under the authority of the Crimes (Domestic and Personal Violence) Act 2007 designed to protect you and you loved ones from violence, threats, intimidation or harassment for a period of time in the future, usually 12 to 24 months.

It is called an Apprehended Domestic Violence Order (ADVO) when you and the person against whom you wish to take out the AVO, have been or perhaps still are, in a domestic relationship and this includes (family members, married, de facto, living together, being in an intimate relationship).

It is called an Apprehended Personal Violence Order (APVO) in those cases, where the person against whom you wish to take out the AVO,  is not family, kin, or in a domestic relationship with, this includes a neighbour, former friend, co-worker, acquaintance, or a stranger.

An AVO can be made by either:

  • A police officer on behalf of the person in need of protection

  • Any other person over the age of 16 who lodges the Application in the Local Court, as the Applicant and the Person In Need of Protection (called PINOP).

Why Can Police take out an AVO?

Under the authority of the Crimes (Domestic and Personal Violence) Act 2007, a Police Officer has a duty to apply for an AVO, in those circumstances of violence where they believe that an offence has been committed, or is likely to be committed. They are mostly sought by Police in circumstances where a criminal offence such as Assault is alleged to have been committed.  However, the range of scenarios where they are allowed to exercise their discretion is broad and varies from case to case.

When is an AVO application approved?

The Court must be satisfied that on the balance of probabilities, the person in need of protection often called the PINOP, has reasonable grounds to fear for his or her safety and that:

  1. The Defendant will commit an offence of personal violence on them;

  2. The Defendant will stalk or intimidate the person, or his or her partner

  3. The Defendant’s conduct up to the present is of such nature as to find that the order is necessary in all set of circumstances

 

There are times when the Defendant may also wish to take out an AVO against the PINOP. This is done via the Defendant filing a cross-application, and both applications will usually be heard at the same time by the Court.

What are the conditions of an AVO?

The conditions of an AVO vary greatly, from case to case.

The three (3) minimum standard conditions of an AVO include:

 

  1. That you must not assault or threaten the protected person or any other person with whom they are having a domestic relationship with;

  2. That you must not stalk, harass or intimidate the protected person or any other person with whom they are having a domestic relationship with;

  3. That you must not recklessly destroy or damage any property that belongs to or is in the possession of the protected person or any other person with whom they are having a domestic relationship with

 

However, it is often the case that Police will seek further conditions in the AVO which can greatly impact your life and the lives of your loved ones. These can include orders prohibiting you from:

  • Residing with the protected person

  • Entering the premises where the protected person resides or works

  • Going within a certain distance from where the protected person resides or works

  • Approaching the protected person by any means whatsoever, except through your legal representative

  • Approaching the protected person at any place where they reside or work within 12 hours of consuming intoxicating liquor or illicit substances

 

At Lawyer Call, we believe in simplicity especially during such a difficult time when all these orders are thrown around and allegations made against you.

Our Defence team can assist you in determining exactly what orders are sought against you, for how long and why. Our solicitors are also experienced in negotiating with Domestic Violence Police Officers to removing some of the orders sought, in attempt to bring them down to the minimum standard conditions.

What happens if an AVO has been taken out against me?

If you have had an AVO taken out against you, you will have the following options:

  1. You can oppose the AVO Orders and have matter listed for a Contested AVO hearing

  2. You can accept the AVO orders without making any admissions to any allegations outlined in the AVO facts. This is known as a “Consent without admissions”

  3. You or your solicitor can attempt to negotiate certain promises that you can make to the Court, whereby no AVO is put in effect, subject to you making certain promises to the Court. This is however, only able to be achieved with the consent of the Applicant and with the consent of the Police.

  4. You can submit an application to have your case referred to a Mediation conference at a Community Justice Centre

 

Are there any benefits to consenting to an AVO?

 

One of the main reasons why most people consent to an AVO is that they avoid further legal fees for a contested Hearing, Court Costs and Time, and avoid having to give evidence in Court. It is possible to consent to an AVO without making admissions to any of the allegations or accusations that are in the Facts as detailed in the AVO Application.

You should however, be aware of the consequences of an AVO.

Perhaps, even more importantly, you should be aware that if you do breach the orders of the AVO once it is finalised, it becomes a criminal offence for which you will have to face Court, and face not only a Criminal Record but also a potential period of imprisonment.

 

Consequences of an AVO

Before consenting to an AVO being finalised, there are some consequences that you should be aware of that will occur once the AVO is finalised.

  • You may be restricted from approaching or residing in your home

  • You will have to dispose any firearms in your possession, or dispose of them at the local police station.

  • You will not be able to obtain a licence for a firearm until 10 years after the time when the AVO has ended.

  • Your firearm licence is automatically suspended when an interim AVO is taken out against you

  • Your firearm licence is automatically revoked when an interim AVO is finalised.

  • You will be disqualified from being on the panel of a jury during  the period of the AVO

  • An AVO can have potentially impact certain career employment paths such as being a police or security officer.

  • If the AVO out against you includes a child as a protected person, this may affect employment opportunities with child care and Working with Children Check.

  • Your tenancy under residential tenancy agreement may also be affected.

  • If the AVO involves a Separation within a domestic relationship, this may have an impact on Family law proceedings.

 

Will the AVO appear on my record?

  • The AVO is not a criminal matter and as such it will not appear on your record.

  • However, a breach of the AVO results in a criminal offence. Please see our section on Contravene AVO.

 

Can I contest an AVO?

An AVO can be contested in what is called a Contested AVO Hearing. This is not a criminal proceeding.

An AVO can be contested on a number of grounds including:

  • There are no reasonable grounds for the PINOP to fear personal violence, or threat of being stalked or intimidated.

  • There is no reasonable explanation to fear in the particular circumstances

  • The conduct is not justified to warrant an AVO

 

However, before proceeding to a Contested AVO hearing, it is important to note that the standard in proving that an AVO is warranted  is on the balance of probabilities  which is a much lower and easier threshold to prove than the usual criminal standard of a matter being proved beyond reasonable doubt.

What happens in a contested AVO hearing?

The Court will hear the evidence of both parties before a Local Court Magistrate will decide as to whether an AVO is necessary in the particular case.

What happens at Court?

Normally, the Court proceedings of an AVO will have a first date where it will be listed for Mention at your Local Court. If the AVO is contested, the Applicant will be ordered to file with the Court Registry copies of own statements, as well as any other witness statements that they intend to rely on, of people that would be willing to come to Court to support their Application. The time frame for the submission of these documents is two weeks for the Applicant.

The Defendant will also be ordered to file their own statement at the Court Registry, along with any other supporting statements from witnesses they intend to rely on at the Hearing. The time frame is usually two weeks after the Applicant’s deadline to file their statements.

On this first mention, the original Provisional AVO brought about by Police or the Protected Person, will often be made an Interim AVO order by the Magistrate which means, that even though you have indicated to the Court that you do not agree with the allegations and nature of the AVO, and that you will be contesting it, it is important to abide by its conditions until the date of the Contested Hearing. If you do not respect the orders of the AVO, you may face criminal charges.

The matter will then be listed for a second mention which is procedural in nature. This means that the Magistrate will check to see that all statements have been filed. The date of this second mention is usually one week after the Defendant’s deadline to file their statements.

It is important to note:

  • The Applicant or their solicitor must attend the second mention, or run the risk of having the Application dismissed

  • The Defendant or their solicitor must attend the second mention, or run the risk of having Orders made against them  in their absence.

  • If the Applicant has failed to comply with the directions regarding the filing of their statements, then their application may be struck out, or alternatively, the Court may choose to give the Applicant a bit more time to file any additional or outstanding statements.

  • If however, the Defendant has failed to comply with the directions regarding the filing of their statements, the AVO  Hearing may proceed solely on the statements filed by the Applicant, or alternatively the Magistrate may allow for a bit more time to file any outstanding statements in response.

  • If neither party has respected the directions regarding the filing of the statements, the application  may be dismissed altogether.

  • Finally, if both parties have complied with the timeframe for fling documents, the magistrate will set down a date for the Contested Hearing.

 

What happens on the day of the Contested AVO hearing?

On the Contested AVO Hearing date you are required to attend Court, and when all evidence will be heard before a Local Court Magistrate.

  1. The Prosecution will begin the case and will call evidence. The statements of the witnesses supporting the Applicant (the person in need of protection) will be tendered (handed up) to the Magistrate. Each witness will then enter the witness box and give their evidence. Your Defence Lawyer will then have the chance to cross-examine each of these witnesses and also object to any evidence or line of questioning by the Prosecution that may seem inappropriate .

  2. Once the Prosecution has concluded their case with their witnesses, it then becomes the Defence’s turn to call witnesses and present their evidence on your behalf. The Defence witnesses will also be required to be cross-examined by the Prosecutor.

  3. At the conclusion of the Defence case, the solicitor for both sides will have the opportunity to make final statements addressing key issues in the evidence and legal cases to support their arguments regarding why the AVO should or should not be put in effect.

  4. The Magistrate will then make their deliberations and finalise a ruling

 

Contact Lawyer Call 1300 LAW 111 for your AVO matter today. 

 

At Lawyer Call, we have a team of expert criminal solicitors able to assist you right away with your Apprehended Violence Order matter, with a clear breakdown of the alleged AVO facts, the application of the relevant Legislation, and the options you have taking into account all the evidence.

 

 

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