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APPREHENDED VIOLENCE ORDER (AVO)

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Don't let an AVO restrict you from getting on with your life. Our AVO experts will advise you on your rights.

Do you have an AVO against you?

AVOs are a complex area of law governed by the Crimes (Domestic and Personal Violence) Act 2007. An AVO on its own is not a criminal matter and falls under the civil jurisdiction of the courts. It has a lower burden of proof that needs to be met (on the balance of probabilities). In the opinion of the court, the events alleged are likely to have occurred. 

If an AVO has charges attached to it, e.g. malicious damage, then the charges fall under the criminal jurisdiction of the court. Criminal charges have a separate burden of proof (beyond reasonable doubt) and increase the seriousness of the matter.

The complexities of AVOs mean that it is essential you have appropriate and reliable legal representation. Jameson Law know how to navigate the complexities of the legal system and can take the stress out of applying for or defending an AVO.

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    What is an AVO?

    In New South Wales, a restraining order is known as an AVO. It is an enforceable court order for the safety and protection of an individual or group of people. There are two (2) types of apprehended violence orders:

    1. Apprehended Domestic Violence Order (ADVO)

    2. Apprehended Personal Violence Order (APVO)

    Apprehended Domestic Violence Orders (ADVOs)

    ADVOs apply where incidents of alleged domestic or family violence offences have occurred. Domestic violence offences are an offence committed by one person against another person with whom the person who commits the offence has (or had) a domestic relationship. This means anyone you have or had an intimate relationship with such as a partner, child, roommate, etc.

    Domestic violence offences are not just acts of physical violence such as assaulting someone. They can include actions or behaviour such as stalking, harassing or intimidating, causing a fear of mental or physical harm. For example, unwanted phone/social media contact.

    Apprehended Personal Violence Orders (APVOs)

    Apprehended Personal Violence Orders apply where incidents of alleged personal violence offences have occurred. The court only needs to be satisfied that the PINOP (person in need of protection) has reasonable grounds to fear and in fact fears:

    • an act of violence; OR
    • intimidation; OR
    • stalking

    What happens if I/m served with an AVO?

    If you are served with an AVO, you should contact a legal practitioner as soon as possible, especially if criminal charges are included. If you have any evidence to contradict the AVO, you should make copies of it and give it to your lawyer.

    Do NOT contact the protected person as this may result in you breaching the order.

    If you have family law proceedings in process and you need to communicate with the other party, it is best to do so through your lawyer.

    Should I agree to an AVO?

    You should NOT agree to an AVO without consulting a legal practitioner first. Agreeing to an AVO can have serious consequences. For example, if you work in the security industry, it may impact on your ability to maintain a firearms licence. If you require a Working with Children Check as part of your employment, an AVO can impact on your clearance if children are included in the order. While an AVO is not a criminal matter, an order and any charges attached to it can impact on your ability to obtain a visa for countries such as the United States of America. AVOs can also impact on family law and immigration matters.

    Do you have to go to court for an AVO? 

    Yes. Once you or the police make an application for an AVO, the matter will go before the court so both parties can present their evidence.

    If the police make the application on your behalf, they will present your matter to the court, however, you may be required to give evidence. If you decide you no longer want the police to continue with your matter, you should speak to the officer in charge of your matter. However, the police may continue with the application if they fear for your safety based on available evidence or there are children involved.

    If you make an application to the court, you will be required to present your case to the court. You will need to present any evidence you have to the court. For example, witness statements, text messages, photos, social media messages, etc. If you have witness statements, your witnesses must come to court to provide oral evidence.

    If you are concerned about your safety at court, contact the court to enquire about their DV safe room.

    How long does an AVO last for?

    An APVO lasts for as long as the court specifies. In the absence of a specified date, the order lasts for 12 months after the date the order is made.

    An ADVO lasts for as long as the court specifies. In the absence of a specified date, the order lasts for two (2) years after the date the order is made. However, if the defendant is under the age of 18 at the time the order is made and no time limit has been given, the order lasts for one (1) year.

    AVO Process in NSW:

    The AVO process is slightly different depending on who makes the application for an order:

    STEP 1

    Complaint Made to Police

    Where investigating police hold concerns for the safety of the PINOP (person/s in need of protection), they will issue a Provisional Order. This order is enforceable until the matter goes to court. The order will include the mandatory conditions 1 (a), (b) and (c) as well as any additional orders required.w

    STEP 1

    STEP 2

    Provisional Order Issued by Police

    The Court Attendance Notice will indicate the date, time and Court that you need to attend. This can be found at the top of the first page of your Court Attendance Notice. Your matter will be listed for mention before a Magistrate at which time, you can elect to either:

    1. Adjourn the matter to obtain legal advice if you have not already done so in which case your matter will be listed on another day for mention; or

    2. Enter a plea of guilty or not guilty. Note: entering a plea of guilty means that you admit that you are guilty of the charge although you may not agree with everything written in the police facts. Entering a plea of not guilty means you do not admit to the charge. The matter will be adjourned to another day for hearing if you plead not guilty or sentencing may be done on the spot for summary offences if you enter a plea of guilty.

    If your matter is considered an indictable offence, it may be necessary to move the matter to the District Court or the Supreme Court depending on the severity of the offence. In saying that section 475A of the Crimes Act 1900 provides that the Supreme Court can also hear summary offences of conspiracy to cheat and defraud:

    …proceedings for any offence mentioned in Schedule 10 may, pursuant to Part 5 of Chapter 4 of the Criminal Procedure Act 1986 by the Attorney-General or the Director of Public Prosecutions, be taken before the Supreme Court in its summary jurisdiction.

    STEP 2

    STEP 3

    Court Mention

    A mention date will be set by the court for the matter to be heard. At the mention, the defendant (person fighting the ADVO) can consent to the order or defend it. If they consent to it, that means they agree to the terms of the order and agree to follow it. The matter is finished and a final AVO is made. Some jurisdictions provide a third option that allows defendants to make an undertaking, a promise to the court not to do certain things.

    If they decide to defend it, a new date for a brief mention will be set by the court and dates each party (the police and the defendant) must supply copies of their evidence. The court will review the provisional ADVO issued by police and will make any necessary changes. This is known as an Interim AVO.

    STEP 3

    STEP 4

    Brief Mention to Defend AVO

    A brief mention is similar to a meeting between parties that takes place in court. It allows both parties to inform the court of any evidence that may be missing or any amendments that need to be made. The court then sets a date for a hearing. The Interim AVO remains in place until the hearing date and must be complied with.

    STEP 4

    STEP 5

    Hearing

    The hearing is the final step in the process. Both parties present their evidence and the court makes a final order. If you have charges attached to your AVO and are found guilty of the charges, the court will automatically enforce an AVO. Once a final order is made, breaches of that order are dealt with under criminal law.

    STEP 5

    STEP 1

    Contact Jameson Law

    Contact a legal practitioner or your local court to ask about how you can make an AVO application. An application has very specific requirements that must be met.

    STEP 1

    STEP 2

    Apply

    Lodge your application.

    STEP 2

    STEP 3

    Court Mention

    A mention date will be set by the court for the matter to be heard. At the mention, the defendant (person fighting the ADVO) can consent to the order or defend it. If they consent to it, that means they agree to the terms of the order and agree to follow it. The matter is finished and a final AVO is made. Some jurisdictions provide a third option that allows defendants to make an undertaking, a promise to the court not to do certain things.

    If they decide to defend it, a new date for a brief mention will be set by the court and dates each party (the applicant and the defendant) must supply copies of their evidence. The court will review the orders sought on the application and may issue an Interim Order.

    STEP 3

    STEP 4

    Brief Mention to Defend AVO

    A brief mention is similar to a meeting between parties that takes place in court. It allows both parties to inform the court of any evidence that may be missing or any amendments that need to be made. The court then sets a date for a hearing. The Interim AVO remains in place until the hearing date and must be complied with.

    STEP 4

    STEP 5

    Hearing

    The hearing is the final step in the process. Both parties present their evidence and the court makes a final order.

    STEP 5

    Disclaimer

    The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

    Our Recent AVO Matters

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    Legislation: Crimes (Domestic and Personal Violence) Act 2007 No 80

    (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
    : Maximum penalty–Imprisonment for 5 years or 50 penalty units, or both.
    (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
    (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
    (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
    (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

    (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
    : Maximum penalty–Imprisonment for 2 years or 50 penalty units, or both.
    (2) A person is not guilty of an offence against subsection (1) unless–
    (a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or
    (b) in any other case, the person was served with a copy of the apprehended violence order.
    (3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned–
    (a) was necessary in order to attend mediation under section 21, or
    (b) was done in compliance with the terms of a property recovery order.
    (4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
    (5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.
    (6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.
    (7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned.
    (8) A police officer is to make a written record of the reasons for–
    (a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or
    (b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9),
    if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.
    (9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
    Note : The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence.

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    Frequently Asked Questions.

    It depends on the court diary as to how quick the process is. COVID-19 has impacted on NSW courts and may result in delays, especially in Sydney courts.

    No. You must be able to prove you have reasonable grounds to fear or in fact fear

    • The commission of personal or domestic violence offence; OR
    • Intimidation; OR 
    • Stalking

    It is an offence to make false statements and can result in 12 months imprisonment, a fine of $1100.00 or both.

    Breaching an AVO is a serious criminal offence and can result in a criminal conviction. The maximum penalty for breaching an AVO is 2 years imprisonment or a fine of $5,500.00 or both.

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