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AVO_lawyer

What happens if I breach my AVO?

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Have you breached your AVO?

In Australia, an apprehended violence order (AVO) is a legal mechanism that looks to protect a person (protected person) from another person who is a risk to their safety. Often otherwise referred to as an Intervention Order, Restraining Order, Protection Order, Domestic Violence Order or a Family Violence Order, an AVO is a serious matter and a breach of an AVO is considered a serious offence.

A breach of an AVO in NSW is governed by section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (The Act), and is a criminal offence that carries a maximum penalty of 2 years imprisonment and/or a fine up to $5,500. This is a significant penalty that recognises the need to protect victims who fear for their safety.

AVO’s are often a feature in sensitive family law or domestic violence offence matters where emotions are high and there is a complex history of abuse, violence. This means that it is critical, as with any criminal law matter, to speak to an expert who understands the law to represent your interests impartially and with full respect for your rights as a defendant.

What is an apprehended violence order?

In New South Wales, the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is a piece of legislation that aims to ensure the safety and protection of all persons who experience violence, whether in a domestic violence situation or outside of a domestic relationship. The Act does so by providing for two main forms of Court order which are designed to ensure the safety of those who are vulnerable and in need of protection, namely:

  1. Apprehended domestic violence orders (ADVO’s, or DVOs), to protect those at risk of becoming the victim of a domestic violence offence; and
  2. Apprehended personal violence orders (APVO’s), for potential victims of non-domestic violence offences.

An apprehended violence order (AVO), whether an ADVO or APVO, is an order made by a Court on application by a person, which is designed to prohibit or restrict the activities of another person in order to reduce the risk of violence or unwanted harassment. As a Court order, an AVO is enforceable by a Court (usually, the Local Court), a breach of which is a criminal offence.

While an AVO itself does not go on a person’s criminal record, any act contravening an AVO that is in place, will, as a breach of an AVO is a criminal offence. It is therefore critical to ensure you obtain sound legal advice in any AVO matter in order to protect your rights whether as a defendant or applicant in criminal proceedings relating to an AVO.

In NSW, the Act also provides for what is called an “interim AVO”. An application for an interim AVO can be heard by a Court on an urgent basis (including via telephone or videolink), and can be made as an interim measure subject to a further Court hearing to determine whether a final AVO application should be granted. If an interim AVO is successfully sought, that Court order will have the same effect as a final AVO.

What can an AVO do?

An AVO is able to prohibit or restrict the behaviour of a defendant to the extent that those prohibitions and/or restrictions are “necessary or desirable” to the Court, and to ensure the safety and protection of the person in need of protection and any children, from any act of violence (domestic or personal). Section 35 of the Act allows an AVO to impose any or all of the following conditions:

  1. prohibiting or restricting approaches by the defendant to the protected person;
  2. prohibiting or restricting access by the defendant to any or all of the following:
    • to any premises occupied by the protected person;
    • to any place where the protected person works;
    • to any place frequented by the protected person.
  3. prohibiting or restricting the defendant from approaching the protected person, or any premises/place, within 12 hours of consuming alcohol or drugs;
  4. prohibiting or restricting the defendant from locating or attempting to locate the protected person;
  5. prohibiting or restricting the defendant from interfering with the protected person’s property; or
  6. prohibiting or restricting specified behaviour by the defendant that might affect the protected person.

In addition, section 36 of the Act means that all AVO’s prohibit the following:

  1. assaulting or threatening the protected person (or a person with whom the protected person has a domestic relationship);
  2. stalking, harassing or intimidating the protected person (or a person with whom the protected person has a domestic relationship; and
  3. intentionally or recklessly destroying any property, including animals, that belong to the protected person (or a person with whom the protected person has a domestic relationship).

As a result, the effect of an AVO can be far-reaching, prohibiting a person from a range of activities and impinging on your personal freedoms. 

In addition, from November 2017 all Domestic Violence Order’s are all automatically enforceable and recognised in all Australian States and Territories. This means that any State or Territory is able to enforce an ADVO which is granted in NSW, and NSW police are able to enforce a DVO which is granted in another State or Territory (as long as either one or both of the parties was located in NSW at the time of the contravening activity).

Who can apply for an AVO?

In NSW, court proceedings applying for an AVO can be brought either by a police officer or by a “person in need of protection” (“PINOP”, or protected person). In both cases, the applicant will file an “application notice” in the Local Court (or the Children’s Court, if the defendant is less than 18 years of age). A defendant must also be given a copy of the application notice, as well as a “Court Attendance Notice” which provides the defendant with notice of a court date at which they are required to appear.

As above, generally an AVO application will be heard by the Local Court, or by the Children’s Court if the defendant is under 18. Note however that the District Court and Supreme Court both also have jurisdiction to hear criminal law matters.

Can I appeal an AVO?

A defendant has the right of appeal in respect of AVO applications. Under section 84 of the Act, a defendant may apply for an AVO to be annulled as with any criminal conviction arising from a court attendance notice. 

In order to successfully appeal an AVO and have the original Court order annulled, a defendant must show that having regards to the circumstances of the case, there is just cause for the annulment. 

Alternatively, a defendant can appeal an AVO to the District Court.

What is considered a breach of an AVO?

Generally, what might be a breach of an AVO depends on what is prohibited or restricted by the particular AVO in question. As noted above, an AVO may specify a range of prohibited and/or restricted activities. If a defendant fails to comply with those prohibitions and/or restrictions, they may be in breach of the AVO.

Regardless of the circumstances of the case, section 36 of the Act means that if a defendant is found to have done any of the following:

  1. assaulting or threatening the protected person (or a person with whom the protected person has a domestic relationship);
  2. stalking, harassing or intimidating the protected person (or a person with whom the protected person has a domestic relationship); or
  3. intentionally or recklessly destroying any property, including animals, that belong to the protected person (or a person with whom the protected person has a domestic relationship),

then a criminal charge may be laid for contravening the AVO, regardless of whether or not that action is specifically prohibited on the AVO itself. Some of these prohibitions (such as threatening, stalking or harassing) do not require a physical presence and can be carried out via electronic means such as text messages or social media.

Otherwise, whether an act is considered a breach of the AVO will depend on what that AVO restricts. For example, if an AVO prohibits a person from entering the home address or place of employment of a protected person, then unless there is a reasonable excuse (such as having to comply with a property recovery order), any situation in which the defendant subsequently enters that home address or place of employment will constitute a breach of the AVO and leave the person liable to a criminal conviction for contravening that AVO.

If criminal charges are laid for a breach of an AVO, a Court will need to prove beyond reasonable doubt that the defendant did in fact carry out an act that was prohibited by the AVO. It is, therefore, crucial to ensure that you are intimately aware of what you can or cannot do while an AVO is in place. In addition, if the activity which constituted the breach of the AVO was itself a criminal offence (such as an assault), then a defendant can face separate criminal charges for the breach, as well as that criminal offence. This will almost always exacerbate the chances that a defendant will face a term of imprisonment following the breach.

What is not considered a breach of an AVO?

There may be circumstances in which it will be necessary for a person to engage in some act that would otherwise be considered a breach of an AVO. Under section 14 of the NSW Act, a person cannot be found guilty of an offence of contravening an apprehended violence order if:

  • the person was not served with a copy of the order, or was not present in Court when the order was made, or
  • the contravening act was necessary to attend a mediation, or
  • the contravening act was done in compliance with the terms of a property recovery order.

In addition, the requirement that a defendant can only be found guilty of an offence of contravening an AVO if they knowingly did an act that is prohibited and/or restricted by the AVO, means that an accidental breach is unlikely to mean a defendant is guilty of the criminal offence. A qualified solicitor will be able to provide you with expert legal advice on whether you may or may not have breached an AVO. 

What are the consequences of breaching an AVO?

The consequences for contravening an apprehended violence order will depend on a few factors, including the nature of the act which was a breach of the AVO, whether the contravention was an act of violence against a person, and the criminal record of the defendant.

Under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person, is guilty of an offence. The maximum penalty for this offence is 2 years imprisonment, 50 penalty units (which amounts to a fine of $5,500), or both. 

Alternatively, a Court may make one of a number of Court orders in lieu of a term of imprisonment or fine. A Court may impose some form of Community Correction Order (CCO) or Conditional Release Order (CRO) which allows the defendant to avoid a term of imprisonment on the proviso that they comply with the terms of the alternative Court order. This will generally mean that any subsequent breach will be treated more seriously than the first breach – in these circumstances, it will be more difficult to avoid a term of imprisonment.

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