Apprehended Violence Orders

Apprehended Violence Orders are court-issued protective orders preventing violence, harassment, stalking or intimidation, requiring reasonable grounds and genuine fear for safety.

What is an Apprehended Violence Order?

An Apprehended Violence Order (AVO) is a court order made to protect a ‘person in need of protection’ (‘PINOP’) from, inter alia, violence, harassment, intimidation or stalking. An AVO is not a criminal matter or criminal charge but an order that prohibits a person from doing certain acts to ensure the safety and protection of another.

There are two main types of AVOs:

ADVO (Apprehended Domestic Violence Order), and
APVO (Apprehended Personal Violence Order)

Apprehended Domestic Violence Order (ADVO)

An apprehended domestic violence order (ADVO) is sought by either the police or an individual when there is a “domestic relationship” between the parties. These are the most common AVOs and are often sought following the breakdown of intimate relationships or ongoing domestic and family violence.

What is a domestic relationship?

A domestic relationship is any domestic or family relationship between the defendant and the PINOP.

This can include:

Being married or in a de facto or intimate relationship
Living in the same house
One person is the other person’s carer
The two parties are related
The two parties are part of the same Indigenous kinship system

This can also include individuals that have previously been in an intimate relationship and any new partners they are in a relationship with.

Apprehended Personal Violence Order (APVO)

An APVO is an order made where there is abuse committed between parties that don’t have a domestic relationship, but the complainant still seeks legal protection from the defendant. This can apply to various relationships, such as neighbours or work colleagues.

The court can only order an AVO if it is satisfied that the protected person has reasonable grounds to fear that you will be violent towards them, stalk them or intimidate them. It is also necessary for the court to be persuaded that the protected person is fearful.

Who can make an AVO application?

An AVO application can be made by;

The PINOP
A parent/guardian of the PINOP
The Police

Anyone over the age of 16 who is or has been the victim of physical assault, threats, stalking, intimidation or harassment and has a reasonable concern that this will be ongoing can apply for an AVO. If an individual seeks to apply for an AVO through contacting their local court register, this is known as a ‘private AVO’.

The police can also apply for an AVO on the behalf of the PINOP if they have concerns or fear for the safety of an individual. It is important that individuals report any incidents against themselves, family members or another individual to the police. Often the police will apply for an AVO in addition to the laying or criminal charges.

If the police have applied for an ADVO for an individual, they will be allocated to a specialised domestic violence liaison officer, specialised in family and domestic violence and court AVO processes. This assists in ensuring the complainant are supported and assisted throughout the application and court process.

Provisional, Interim, and Final AVOs

Provisional AVOs

A provisional AVO is applied for by the police when they believe an individual needs immediate protection. These can contain both mandatory and additional orders, which may remain in place until the court either orders an interim or final AVO or the AVO application is withdrawn or dismissed.

Interim AVO

An interim AVO is a court order that either;

Extends a provisional AVO, or
Agrees it necessary and appropriate that an individual is granted immediate protections

An interim AVO must be made by the court, regardless of if an application is submitted if the defendant has been charged with a serious offence against another. This could include:

Attempted murder
Domestic violence offence
Stalking or intimidation with the intention of causing the victim to fear harm
Wounding or grievous bodily harm
Sexual assault or attempted sexual assault

Interim AVOs can remain in place until a final AVO is made or the AVO application is dismissed/withdrawn.

Final AVO

A final AVO is a court-made order that can remain in place for a specified period deemed necessary for the adequate protection of the victim as determined by the court. A final AVO is granted following a court process when the court determines an AVO is necessary for the protection of the complainant.

What is the process for an AVO?

If an individual has applied for an AVO, they will receive a court date where the first mention is made. Dependent on the circumstances, the matter may be finalised at the first mention or adjourned to another date. At the mention, the defendant will be asked whether they consent to the AVO or wish to consent to it.

As the court has the power to order an AVO in either party’s absence, both stakeholders must attend court for their ‘mention’ date.

At the Hearing of the matter, the court will read statements and evidence from the complainant and the defendant and may ask questions regarding these statements or the circumstances that have necessitated an AVO. The witnesses may also be cross-examined. Once the evidence has been heard and considered, the magistrate will make an order either granting or dismissing the Application for AVO.

After being served an AVO, the defendant has the opportunity to either accept the grounds of the AVO, accept the AVO without admissions or argue before the court that there are no grounds for the application.

If an individual chooses to accept the AVO without admission, this means they are accepting the AVO without having the allegations against them accepted as the truth, but the Court.

When will the court issue an AVO?

Under Section 16 of the Crimes (Domestic and Personal Violence) Act 2007, the court may issue an AVO if it is satisfied on the balance of probabilities that the PINOP fears and has reasonable grounds to fear:

The commission of a domestic violence offence, or
The engagement of conduct that either:

Intimidates the person or a person with whom the person has a domestic relationship
Stalks the person, or
Being conduct that, in the opinion of the court, is sufficient to warrant the making of the order

This is in accordance with The Crimes (Domestic and Personal Violence) Act 2007, which states that the following criteria must be satisfied by the court to issue an AVO:

There are fears for the safety of the PINOP
Those fears a reasonable

The court may also issue an AVO even if the PINOP doesn’t fear the defendant in circumstances where the PINOP is:

A child under 16 years of age
An individual of significantly below-average intelligence functioning
Has been the victim of personal violence by the defendant on more than one occasion
The Application seeks only the mandatory orders (being, clauses 1 a, b and c).

AVO conditions

When an individual is made the subject of an AVO, there is a mandatory condition that the defendant must not do any of the following to anyone they have a domestic relationship:

Assault or threaten them
Stalk, harass or intimidate them, or
Deliberately or recklessly destroy or damage anything that belongs to them.

Additional orders can be sought if it is deemed they will contribute to the protection of the PINOP, including the defendant:

No longer being 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 a protected person for at least 12 hours after taking alcohol or drugs;
Not allowed to possess any firearms or prohibited weapons’; and/or
Not allowed to try and locate the protected persons

AVOs are generally made for a period between 12 to 24 months.

Consequences of an AVO

As AVO is not a criminal offence, if an individual receives one, it will not show up on their criminal history; however, it will have other ramifications that can impact a person’s life.

These can include, but are not limited to:

Outstanding AVOs will show up on background checks often run by employers
Their ability to hold a firearms license for a period of 10 years
Potentially inhibit them from obtaining a working with children’s check
This may prevent you from obtaining certain security licenses

These consequences remain relevant even if an individual accepts the AVO on a without admission basis.

How can I defend an AVO?

The court will not grant an AVO if the PINOP cannot prove the necessary criteria on the balance of probabilities. If you have been served an AVO and wish to fight it, it’s necessary you contact an experienced criminal defence lawyer, such as the team at Hamilton Janke, to ensure you receive the most favourable outcome.

There are various ways to get an AVO dropped or dismissed in court, including, but not limited to:

Negotiation with undertaking- defendant offers to provide a signed and dated written undertaking to comply with the same conditions in the AVO, but it is not a legally enforceable court order.
Successfully defending against an AVO

Can I revoke a final AVO?

An individual can apply to revoke or vary an AVO by applying to the local court under Division 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

An ‘interested party’ can enter an application to either revoke or vary an AVO at any time. An ‘interested party’ refers to those named in the avo; the defendant, protected person, or police officer.

The application will be reviewed by the court to assess if there are proper grounds for the AVO to be revoked.

What happens if I breach an AVO?

If an individual breaches any of the conditions of their AVO, they can be found guilty of a criminal offence under section 14 of the Crimes Act 1900 (NSW). In order to be found guilty of this, the prosecution must prove beyond reasonable doubt that the accused: