In New South Wales, apprehended violence orders (or AVOs as they are commonly known) are designed to stop domestic, family or general personal violence. In other Australian States and Territories they are known as protection orders. Although these orders were initially created to combat violence against women, they are available to:
- Anyone in an existing or past relationship (a domestic AVO) who has experienced or fears violence from another (the defendant); or
- Somebody not in a relationship with the defendant (a personal AVO) who suffers the same actual or feared violence.
What are AVOs?
Essentially AVOs are court restraining orders issued by a Magistrate which aim to prevent violence (whether actual or feared), harassment, stalking or other intimidation actions perpetrated by the defendant. These court orders achieve this by preventing the defendant from doing defined things, under penalty of a fine of $5,500 and/or imprisonment for up to two years. The defendant will have a criminal record if they are convicted or breaching the AVO.
Domestic AVOs are available to spouses, de-factos, relatives and people who have maintained an intimate relationship or lived together (although not to tenants or boarders). A "relationship" is not restricted to one between a man and a woman and AVOs apply equally to same-sex relationships. Most other forms of apprehended violence would be covered by personal AVOs.
Apart from actual violence, AVOs are available to people who have experienced verbal threats, telephone calls or communications (for example, letters, emails or social networking messages) that have created a fear of violence from the defendant.
Professional Experience
Collins & Thompson can assist you in not only urgently securing an AVO against somebody, but also in dealing with a number of other matters that flow from granting such an order:
- Ensuring the AVO is as wide as is necessary to protect you and your family, extending to prohibiting the defendant from accessing certain places and surrendering any firearms;
- Advising you on how an AVO will affect other family law matters, such as child custody and living arrangements;
- Enabling existing AVOs to be recognised in other parts of Australia outside New South Wales (especially useful if you are planning to move and fear that the defendant might try to follow you);
- Varying any AVO as required; and
- Ensuring that the court is made aware of any breach of the order.
There are two types of Apprehended Violence Orders:
- Apprehended Domestic Violence Order (ADVO)
An AVO made where the people involved are related, living together or in an intimate relationship, or have been in this situation earlier.
- Apprehended Personal Violence Order (APVO)
An AVO made where the people involved are not related and do not have a domestic or personal relationship, e.g. they are neighbours.
It is helpful to understand some of the other legal terms which are used in court.
Person In Need of Protection (PINOP)/Protected Person
The person for whose protection an Order is sought and/or made.
Complaint
The person who has applied for the AVO. Sometimes this is a police officer on behalf of the protected person. Otherwise, the protected person can make a private complaint through the Chamber Registrar at a Local Court.
A Complaint is an application for an AVO.
Defendant
The person against whom an AVO is sought or made.
How do you make a complaint?
If you are making a private complaint, you go to a local court and explain why you want an AVO to a Chamber Registrar. You will be required to swear an oath or make an affirmation about the truth of those reasons. The Chamber Registrar will then issue a summons requiring the defendant to go to court. The summons can be served on the defendant by police.
A Chamber Registrar may refuse to issue a summons for an APVO if they believe the case is frivolous, vexatious or has no reasonable chance of success. In refusing to issue a summons, the Chamber Registrar may take into account whether the matter is suitable for mediation.
Do you need a lawyer?
If the police have applied for an AVO on your behalf (ie. a police officer is the complainant) you do not need a lawyer as the police prosecutor will represent you in court. If you made a private complaint, you should get your own lawyer, although you can represent yourself in court.
Personal Support
At Collins & Thompson, we are offer our clients a voice and caring support. Our solicitors are professional and take their privacy and professional obligations very seriously. When you or your family are threatened and in danger, Collins & Thompson are there to ensure your safety.
Contact us now for confidential advice on (02) 9476 2788 or meet with one of our solicitors at our Hornsby offices located at 8 Coronation Street, Hornsby.
Can you get legal aid?
You can get legal aid if you are or have been married or in a de facto relationship with the defendant. If exceptional circumstances exist, you may also get legal aid if you have another type of domestic relationship with the defendant, eg you are relatives or live in the same household.
To get legal aid you have to pass the Commission's means test.
Legal aid is not available for an APVO but you can get advice by speaking to the duty solicitor.
You can apply for legal aid through a duty solicitor at any local court or through a private lawyer.
What happens when you go to court?
Sometimes the police are not able to serve the defendant with the complaint and summons by the time you first go to court. If this is so, your case will be adjourned (postponed) to give the police more time to serve the defendant.
If the defendant has been served with the papers but does not come to court on the set day, and does not have a good reason for not attending, you can probably get an AVO even though the defendant is not there
If the defendant does come to court, s/he can consent (agree) to the AVO being made, without admitting that he has done anything wrong. In this case, your AVO will be made that day.
If the defendant does not consent to the AVO, your case will be adjourned until another day so that the court can hear evidence from both sides. In this case, you can ask the court for an interim (temporary) AVO to protect you until the hearing.
If the case is put off, you can also ask the court to impose bail conditions until a hearing is arranged.
What happens at a hearing?
At the hearing, you and any witnesses you have will give evidence and can be questioned by the defendant or the defendant's solicitor, if s/he has one. Then the defendant and his witnesses, if any, give evidence and you or your lawyer (or the police prosecutor, if it is a police complaint) can question them.
The magistrate then decides whether or not to make the AVO. To get an AVO, you need to convince the magistrate that you fear either physical violence, harassment, intimidation or stalking. You also need to show that it is reasonable for you to be fearful under the circumstances.
If the court makes an AVO, the magistrate may tell the defendant to pay your costs in bringing the case to court. However, if the AVO is not made, the magistrate may tell you to pay the defendant's costs, but only if the defendant can convince the magistrate that your complaint was frivolous or vexatious.
On what basis does the Court make an AVO?
When the matter is at court, the Court can make an AVO if either:
- a defendant consents to an AVO being made or
- evidence is heard and it is proved that the person in need of protection in fact fears violence or harassment or some other behaviour by the defendant that justifies an AVO being made. The Magistrate also has to be satisfied that there are reasonable grounds for those fears.
What happens when an AVO is made?
When an AVO is made, the defendant does not get a criminal conviction or a criminal record. The AVO is kept on a database and the police will seize any firearms s/he may have, even if the firearm is used for the purposes of employment. If the defendant has a firearms licence, this is automatically revoked for a period of 10 years.
The defendant can get their firearms licence back if the order is revoked.
What happens if the defendant breaches the AVO?
The defendant breaches the AVO if s/he does anything that the AVO says s/he is not to do. You should keep a copy of the AVO and call the police if the defendant breaches any of the orders listed on your AVO. The police can then charge the defendant with breaching the AVO.
If the defendant pleads not guilty to the charge, you may have to go back to court to give evidence. You don't need your lawyer for this as you are a witness for the police prosecutor.
It will be difficult for the defendant to get bail if the AVO is breached, especially if the breach involves violence and the defendant has a history of violence.
If the defendant is convicted of a breach of the AVO, s/he will have a criminal record. The maximum penalties for breaching an AVO are a fine of $5,500 and/or two years in prison.
Even if you actually invite the defendant to act in a way that breaches a condition, there will still be a breach of the AVO. E.g. You ask him into your house when the AVO says he is not allowed to enter the building.
How long does the AVO last?
Your AVO will last for a particular period of time. E.g. two or three years. Before that period ends, you can apply for an extension of the AVO, as long as you still have a reasonable fear of the defendant.
If circumstances change between you and the defendant when the AVO is still in force, and you no longer want the defendant's behaviour to be restricted, you can go back to the court to change or cancel the AVO. You can do this by going to the Chamber Registrar.
You may also be able to get a legal aid for variation or revocation proceedings.
*current penalties as of November 2005.
