Apprehended violence orders (AVOs) constitute the primary means in NSW of asserting the fundamental right to freedom from fear. AVOs seek to protect the community in a direct and immediate sense, rather than through other mechanisms such as deterrence. Individuals, or police on their behalf, can take out an AVO against someone to obtain protection against actual or threatened acts of personal violence, stalking, intimidation, and harassment.
Having an AVO against you is not a criminal offence. However, AVOs contain prohibitions and restrictions, known as conditions, which it is a criminal offence to breach. Read on to understand more about these conditions and the operation of AVOs in NSW.
What are AVO Conditions NSW?
An AVO is an order made by the court to protect people. AVOs do this by ordering a person referred to as the ‘defendant’ not to assault, molest, harass, intimidate, or stalk the ‘protected person’ for a specific period of time.
AVOs may carry additional orders depending upon the surrounding circumstances. These may include prohibiting the defendant from contacting the protected person, going within a certain distance of the protected person’s home or work, and destroying or damaging the protected person’s property.
While they are court orders, AVOs do not give defendants a criminal record.
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Types of AVO’s
There are two kinds of AVOS:
- Apprehended Domestic Violence Orders (ADVOs); and
- Apprehended Personal Violence Orders (APVOs).
ADVOs apply to domestic relationships, while APVOs are available for any kind of relationship that is not domestic.
‘Domestic relationship’ is defined by Section 5 of the Crimes (Domestic and Personal Violence) Act 2007 which determines that a person has a domestic relationship with another if the person:
- Is or has been married to the other person;
- Is or has been a de facto partner of that other person;
- Has or has had an intimate personal relationship with the other person, whether or not it involves or has involved a relationship of a sexual nature;
- Is living or has lived in the same household as the other person;
- Is living or has lived as a long-term resident in the same residential facility as the other person at the same time;
- Has or has had a relationship involving their dependence on the ongoing paid or unpaid care of the other person;
- Is or has been a relative of the other person; or
- 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.
Even if they have never met, two people are also considered to have a ‘domestic relationship’ if they have both been married, de facto, or in an intimate relationship with the same person (s5(2)).
There are then three forms that an AVO can take depending upon what stage of the process they are ordered. These are:
- Provisional AVO;
- Interim AVO; and
- Final AVO
The police can apply for a Provisional AVO to immediately protect an individual if the situation is urgent. Provisional AVOs can contain both mandatory and additional orders and may remain in place until the court orders either an Interim or Final AVO or the application is withdrawn or dismissed.
The police can apply for a Provisional AVO to protect a person until the case goes to court if the situation is urgent, while the court can make an Interim AVO to protect a person until the case is finalised.
The court may make an Interim AVO if it appears “necessary or appropriate…in the circumstances” (s22) to afford someone temporary protection. A court must make an Interim AVO against the defendant if they have been charged with a serious offence, regardless of whether an application for an Interim AVO has been made. A serious offence may include:
- Attempted murder;
- A domestic violence offence;
- Stalking or intimidation with the intention of causing the victim to fear harm;
- Wounding or grievous bodily harm;
- Sexual assault; or
- Sexual touching
An Interim AVO will last until it is revoked, a Final AVO is made, or the application is withdrawn or dismissed. While it remains in force, an Interim AVO has the same effect as a Final AVO.
A Final AVO is granted upon conclusion of the court process if the court determines an AVO for a specified period is necessary for the adequate protection of the complainant.
Legislation in NSW Relating to AVO’s
The Act achieves these objectives by empowering courts to make AVOs to protect people from domestic violence, intimidation (including harassment), stalking, and personal violence.
The Act also ensures that the avenue of AVOs is not misappropriated, and the court can only order an AVO if it satisfies both these conditions: that the protected person has reasonable grounds to fear, and that they are actually fearful.
The statutory power to make AVOs is contained in s16 with respect to ADVOS and s19 with respect to APVOs. Section 16 provides:
(i) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears—
(a) the commission by the other person of a domestic violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person—
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
Section 19 reproduces this same test with respect to personal violence orders.
What are the Conditions for an AVO?
‘When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property (emphasis added).’
This guides decision making around AVO conditions, and is duplicated in s20(3) with respect to APVOs.
When making an AVO, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence (s35).
All AVOs include three ‘mandatory orders’ which are also known as the ‘Standard orders,’ ‘Orders about behaviour’, or ‘Order 1 a, b & c’. These are established in s36 of the Act which determines that every AVO is taken to specify that:
- The defendant must not do any of the following to the protected person or anyone the protected person has a domestic relationship with:
b) Stalk, harass, or intimidate them, and
c) Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them
There are additional orders that a court may choose to include in an AVO depending upon what is deemed necessary in the circumstances to ensure the safety of the person in need of protection (PINOP). These orders are listed under the following headings:
- Orders about contact;
- Orders about family law and parenting;
- Orders about where you cannot go; and
- Orders about weapons.
These may include that the defendant is:
- 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 the 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 person
Rights of the Victim
Apprehended violence orders constitute the primary means in NSW for asserting the fundamental right to freedom from fear (John Fairfax Publication Pty Ltd v Ryder Local Court (2005)), and this right is recognised through appropriate AVO conditions.
Long-Term Impact on the Offender
An AVO is a civil order of the court, not a criminal charge. As such, it will not be listed on a defendant’s criminal record, although it will appear upon their criminal history (your criminal history includes everything that is listed on your criminal record together with findings of not guilty, dismissed charges, and pending charges/court appearances). It may also impact other aspects of your life, depending upon your circumstances.
Possessing Firearms and Weapons
Having an AVO against you will impact upon your ability to possess and use firearms and weapons. Sections 23 and 24 of the Firearms Act 1996 (NSW) provides that a person’s licence to possess or use a firearm will be automatically suspended upon the making of an interim AVO, and automatically revoked upon the making of a final AVO. This is also true for prohibited weapons under ss17 and 18 of the Weapons Prohibition Act 1998 (NSW).
Section 11(5)(c) of the Firearms Act 1996 (NSW) dictates that a licence must not be issued to a person who is subject to an AVO or Interim AVO or who, at any time within 10 years before the application for the licence was made, has been subject to an AVO.
Working With Children
Having an AVO against you may affect your ability to work with children. The Working With Children Check screening process checks your criminal history and other extrinsic information rather than just your criminal record, on which an AVO will appear.
Usually this will not prevent you from being cleared to work with children, but it is possible in some cases that an AVO will be considered in a Working With Children Check risk assessment. This will be the case if you are subject to a police-initiated Final AVO for the protection of a child.
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An AVO against you may impact prospective parenting orders. Section 60CC(3)(k) of the Family Law Act 1975 (Cth) requires the court, when determining a child’s best interest with respect to parenting orders, to consider if a family violence order (an ADVO in NSW) applies, or has applied, to the child or a member of their family.
To make its decision, the court will take into account a number of matters in order to make this decision, including the nature and circumstances of the order and any evidence admitted and findings made in proceedings for the order.
Penalties for Breaching an AVO in NSW
As the mandatory orders of an AVO are all crimes of themselves, you may be charged with the relevant criminal offence should you breach one of those orders.
In addition to this, however, s14 of the Crimes (Domestic and Personal Violence) Act 2007 states that a person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
This carries a maximum penalty of imprisonment for 2 years or 50 penalty units (currently $5,500), or both. A person convicted under this section, unless the court orders otherwise, must serve a term of imprisonment if the act constituting the offence was of violence against a person.
AVO Procedures in NSW
If an individual files for an AVO, an initial court date will be set, which will be the ‘first mention’. On this occasion, the defendant has the following options:
- Offer undertakings;
- Seek an adjournment for legal advice;
- Consent to the AVO (which can be done ‘without admissions’); or
- Contest the AVO
Undertakings act as a formal promise to the court and can take the place of consenting to an AVO. Undertakings are usually in the same terms as the AVO, but are not a court order nor enforceable. It is not an offence to breach an undertaking. A defendant can only give an undertaking if the applicant agrees to it, at which point your case will be finalised.
If an adjournment is sought, the police or the applicant may ask the court to make an Interim AVO to protect the victim until the new court date.
The defendant can consent to the AVO, which can usually be done without making any admissions as to the truth of the application. A Final AVO can be made on the first mention if the defendant consents.
Finally, if the defendant chooses to contest the AVO, a date will be set for a hearing. Directions will be made for the exchange of written statements, and the police or applicant can ask the court to make an Interim AVO to protect the victim until the next court date. Under s40 of the Crimes (Domestic and Personal) Violence Act 2007, the court must make such an order when a person has been charged with a serious offence.
If your case concerns an application for an APVO, the Court must refer it for mediation unless there is a good reason not to.
How to File an AVO
An application for an AVO may be made by:
- A person for whose protection the order would be made;
- The guardian of the person for whose protection the order would be made; or
- A police officer
The defendant of an AVO application can also make an application against the protected person, which is called a cross application.
S52 of the Crimes (Domestic and Personal) Violence Act 2007 provides that a person may commence the proceedings by issuing an application notice, signed by a registrar, and filing the notice with the Court Registry. Once filed, the application must be served upon, or given to, the defendant. The applicant may ask the Court whether they will arrange for it to be served.
Alternatively, a PINOP can contact the police and request that they apply for an AVO on your behalf.
Responding to an AVO
As above, if you are served with an application for an AVO, upon the first mention in court you may ask for an adjournment to obtain legal advice, give the Court an undertaking, consent to the AVO with or without admissions, make a cross application, or oppose the application. You may also ask for a “Property Recovery Order” at this stage.
If you are in fear of the protected person, you may wish to make a “cross application” against them. The Court will then treat your application as any normal application for an AVO. You will have to prove that you fear the other party and that it is reasonable to have that fear.
If you wish to contest the AVO made against you, the matter will proceed to a hearing.
At the Hearing, the court will consider the evidence from the witnesses and any documents and submissions made by both sides. Anyone who has made a written statement may be cross examined about its contents.
To finalise an AVO, the applicant must satisfy, on the balance of probabilities, the test set out in s16 (for an ADVO) or s17 (for an APVO). That is, the PINOP must prove that they have reasonable grounds to fear, and in fact fears, that the defendant will commit domestic or personal violence against them, or stalk, or intimidate them. S16(2) provides the circumstances in which it is not necessary for the court to be satisfied that the PINOP ‘in fact fears’ which include, but are not limited to, that the person is a child or suffering from an appreciably below average general intelligence.
As the defendant, you may lead evidence for the hearing that demonstrates that the applicant does not in fact fear you, does not have any reasonable grounds to fear you, or that the feared conduct is not serious enough to justify an AVO. If these arguments are successful and the applicant is unable to prove the criteria established by the legislation, the court will not grant an AVO and the application will be dismissed.
AVO Resources and Support in NSW
While it is not a criminal offence of itself, having an AVO against you may have negative implications upon your life depending on your circumstances. For this reason, if you believe that reasonable grounds do not exist to warrant the creation of an AVO or if you would like any advice as to how to proceed, it is essential to contact a trusted criminal lawyer.
A criminal lawyer will also be able to assist if you are charged with breaching an AVO condition by potentially employing one of the available defences to ensure the best outcome.
In Need of a Criminal Lawyer?
If you are being charged with a criminal offence or served with an AVO in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.