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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:
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.
A domestic relationship is any domestic or family relationship between the defendant and the PINOP.
This can include:
This can also include individuals that have previously been in an intimate relationship and any new partners they are in a relationship with.
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.
An AVO application can be made by;
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.
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.
An interim AVO is a court order that either;
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:
Interim AVOs can remain in place until a final AVO is made or the AVO application is dismissed/withdrawn.
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.
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.
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:
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:
The court may also issue an AVO even if the PINOP doesn’t fear the defendant in circumstances where the PINOP is:
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:
Additional orders can be sought if it is deemed they will contribute to the protection of the PINOP, including the defendant:
AVOs are generally made for a period between 12 to 24 months.
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:
These consequences remain relevant even if an individual accepts the AVO on a without admission basis.
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:
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.
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:
Under Section 14 of the Crimes Act 1900 (NSW), the breach of an AVO is a criminal offence regarded as non-compliance with the conditions of the AVO.
The maximum penalty that may be imposed by the court is a 2-year jail term and/or a maximum fine of 50 penalty units.
Hamilton Janke Lawyers are one of the top rated Criminal Law Firms in the region. We treat every client with the respect and commitment they deserve. This commitment to our profession has earned us a reputation which we are very proud.
Going to court? Or maybe you just need advice? Contact us now.
