Defending an AVO can involve a complicated process of writing statements, gathering witnesses and appearing in court. AVO matters are a very common theme in our local courts, with the increase in AVO proceedings arising from extended powers of Police to issue ‘on the spot’ AVOs.
It is important that you seek legal advice from a lawyer who has plenty of experience in defending AVO matters.
What is an AVO?
An AVO, or Apprehended Violence Order, is a legally binding court order designed to protect victims of domestic violence from further harassment, intimidation or violence. Also referred to as a restraining or protection order, AVOs restrict or prohibit the person (known as the ‘defendant’) causing the other to fear for their safety, from contacting or approaching the victim (‘protected person’). A breach of the order may result in the defendant being charged with a criminal offence.
There are two main types of AVOs:
- Apprehended Domestic Violence Order (ADVO) – issued to protect a complainant who is a partner, ex-partner or family member of the defendant
- Apprehended Personal Violence Order (APVO) – issued when the parties are not related or in a relationship with one another, such as neighbours or work colleagues
What is an Interim AVO?
An interim AVO is a temporary AVO enforced by the Court while the case is in progress or during the period of adjournment. In order for an interim AVO to be served, the party seeking it may need to provide evidence (in the form of oral evidence, an affidavit, or a written statement from a police officer) to the magistrate and have the Court agree that temporary protection is necessary or appropriate.
Should you be charged with a serious offence – such as attempted murder, a domestic violence offence, wounding or grievous bodily harm, or sexual assault – an interim AVO must be made against you by the Court regardless of whether an application for one has been presented.
Grounds for an AVO
The test for granting an AVO is as follows:
The court may make an AVO where the complainant, or person in need of protection (PINOP) has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct amounting to harassment or molestation of the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order, or
(c) the engagement of the other person in conduct in which the other person intimidates the person (or a person with whom the person has a domestic relationship), or stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
How Do You Respond to an AVO?
If you are served with with an application for an AVO, you can respond by:
- asking for an adjournment to receive legal advice
- consenting (agreeing) to the AVO, with or without admissions (admitting to any of the allegations)
- giving the Court an undertaking, or formal promise, to stop the behaviour that is causing the protected person to fear for their safety
- making a cross application
- opposing the application
- asking for a Property Recovery Order
- doing nothing.
Factors Needed to Have an AVO Lifted
In order to beat an AVO, the defendant is required to prove that the below factors (outlined in Section 16 of the Act) are not present:
- a) The alleged victim has reasonable grounds to fear a domestic violence offence from you, or
- b) The alleged victim has reasonable grounds to fear intimidation or stalking
- The alleged victim has reasonable grounds to fear such an offence from you, unless:
- a) the alleged victim is a child, or
- b) the alleged victim is “suffering from an appreciably below average general intelligence function”, or
- c) the Court finds that the alleged victim has been subjected to a personal violence offence from you on more than one occasion in the past, and believes there is a reasonable likelihood of it happening again.
As well as considering the safety of the alleged victim and any child who may be affected by the defendant’s conduct, the Court can also consider (through Section 17(2) of the Act):
“(a) in the case of an order that would prohibit or restrict access to the defendant’s residence–the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and
(b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and
(c) the accommodation needs of all relevant parties, in particular the protected person and any children, and
(d) any other relevant matter.”
An AVO will, however, be made by default in the event that you are found guilty of an associated criminal charge, including common assault. As such, it is crucial that you receive legal advice and are strongly defended against any such charges by specialist AVO lawyers.
What is the Process of Defending an AVO?
Given the highly damaging potential repercussions of being served with an AVO, defending yourself against any proceedings that are commenced against you is vital. That said, defending against an AVO in court can be an expensive and lengthy process, and, as well as considering your financial capacity for adequate legal representation, it’s also worth considering whether the person applying for an AVO against you has sufficient grounds to prove to the Court that an AVO is indeed necessary.
If the case does however go to court, it will most likely take place over several court dates.
First Court Date
Once the AVO is received, you will be required to attend court for the first court appearance, also known as a ‘mention’. The case will be heard before a Local Court in NSW. At court, you will need to speak to the Domestic Violence Liaison Officer (DVLO), who will discuss the case with you. The DVLO will also speak to the Person in Need of Protection (PINOP) and seek their opinion whilst discussing the matter with you. If you deny that you have done anything wrong, you can still agree to the AVO, however “without admissions”. This is usually the most expedient way to dispose of the proceedings. You should always seek legal advice before agreeing to an AVO. Whilst an AVO is not a criminal conviction, it can be a serious inconvenience to you!
If you do not agree to the allegations that are raised against you, you should inform the court that you do not wish to agree to the AVO being put in place. The court will then set a “timetable” for all of the evidence both yourself and PINOP to be filed in court and served on the other party. You will usually have a few weeks to prepare and file your evidence in support of your defence.
Second Court Date
On the second Court date, if all parties have presented their statements and evidence, the case will be taken to what is known as a ‘show cause hearing’, during which the protected person must prove that they have reasonable grounds to fear the occurrence of future domestic violence offences.
In the event of the parties not having filed their statements and evidence, the case may be adjourned to give the parties an opportunity to do so. If evidence has been submitted by one party and not the other, the party that has presented theirs may make an application to have the case settled in their favour.
Final Court Date
At the third and final hearing, evidence may be presented by witnesses, while the protected person may be cross-examined by the defence.
The defendant’s version of events will also be heard by the Court, after which they may be cross-examined by the police prosecutor or the protected person’s solicitor (depending on the type of AVO application) as well.
The magistrate will take into account all of the evidence, including the initial AVO application, witness accounts and any other documents, before making their final decision.
Preparing Your Evidence
It is important that you speak to a lawyer before preparing and filing your evidence!
The law in relation to AVOs can be tricky. For example, the PINOP must prove on the ‘balance of probabilities’ that they fear for their safety, AND, there were reasonable grounds to fear for his or her safety. It can be a complicated task to disprove ‘reasonableness’.
Your statement should also comply with the rules of evidence. It is also important that you do not include information that will hurt your defence!
You should also obtain statements from witnesses that may provide relevant information to your defence.
Responding to the PINOP’s Evidence
It is important that, when preparing your evidence, you respond to the PINOP’s evidence accordingly. You must address each allegation that is made against you. You do not need to provide arguments as to reasons why the AVO should not be granted – those arguments are presented in court.
Should I Be Represented When I Defend an AVO?
Yes. You should always be represented by an expert Criminal Defence Lawyer when defending an AVO. They will know the law, the Magistrates and are also able to conduct investigations into the case on your behalf. They can also track down witnesses that may be relevant to your case.
How Do I Beat a Charge of Contravening an AVO?
You cannot be found guilty of contravening (breaching) an AVO as long as the police are unable to prove beyond reasonable doubt that:
- You breached any conditions of the AVO, and
- You breached those conditions knowingly
What Happens if I Breach an AVO?
A maximum penalty of $5,500 and/or a 2-year prison sentence can be issued for breaching an AVO.
If you are found by the police to have contravened an AVO (with provable evidence), and you agree that you had done so, it is most advisable that you plead guilty. Doing so demonstrates a degree of remorse, and will in most cases result in a reduced sentence.
Your lawyer may also negotiate a lesser guilty plea with the prosecution, to either less serious facts or a lesser charge.
For more information about the consequences of contravening an AVO visit the LY lawyer’s Contravene AVO page.
Withdrawing an Application for an AVO
Permission to withdraw an AVO can only be granted to the person who made the application for it.
Similarly, if an AVO was applied for by the police, only the police can then request for it to be withdrawn.
Appealing an AVO
If a final AVO is made against you, an appeal may be made to the District Court within 28 days. You can also appeal to the Court in that same time period over:
- a varying of the AVO
- a refusal to vary the AVO
- a refusal to revoke the AVO
In order to make an appeal, you will have to fill out a ‘Notice of Appeal to the District Court’ and pay the corresponding fee.
It’s also important to note that appealing an AVO does not automatically put a stay (stop) to the ongoing process, and any Court order for a stay will only take place if the safety of the protected person (or any related parties) is ensured.
Frequently Asked Questions About Beating an AVO
Can an AVO be removed if my partner and I get back together?
An AVO – and specifically, an ADVO (apprehended domestic violence order) – is often filed after a domestic dispute between two parties and the police are contacted. ADVOs are often brought against a person involved in the dispute even if the protected person doesn’t specifically request it, as the police have a duty of protection for suspected victims.
For an ADVO to be revoked, both parties must make an application requesting as such to the Court as well as notify the police, who will either agree to its removal – in which case the matter will be straightforward with the Magistrate – or will refuse the request – and the Magistrate will have to consider the various conditions and circumstances before making a decision.
Can I collect my belongings?
If you are issued with an AVO and are prohibited from approaching or entering the home where your belongings are, you’ll have to apply to the Court for a Property Recovery Order.
The order can be approved by either a senior police officer or the Court (when serving an interim or final AVO), and will allow you to collect your belongings without contravening your AVO. When going to collect your belongings, you may be ordered to have an official – usually a police officer – accompany you to the property.
Will I be able to see my children?
The contact you have with your children will depend on the conditions of your AVO and whether your children are registered as protected persons under the order.
If you are restricted from seeing your children under the conditions of the order, a request can be made to either a senior police officer or the Court to have the order adjusted or make an additional order, through which the level of contact you are allowed (agreed upon with the other parent) may be modified.
Does an AVO stay on my criminal record?
Having an AVO taken out against you is not considered a criminal offence, and as such, will not appear on your criminal record. It is, however, a serious criminal offence to breach or contravene an AVO, and doing so will likely lead to a criminal conviction on your record in addition to a prison sentence of up to two years and/or a $5500 fine.
How long does an AVO last?
According to Section 79 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a final AVO lasts for the length of time stated in the order, with the period of time set out by the Court being “as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person.”
Final AVOs are most often ordered to last between 6 months and 2 years, however, in the event of the Court not specifying a time frame, the final AVO will remain effective for one year from the day it was decreed in Court.
An interim AVO can remain in force for the entirety of the court case, up to the point that it is either dropped or converted into a final AVO in Court.
What are the consequences of having an AVO against me?
In terms of child custody disputes, having an AVO against you (if the allegations against you are proven or admitted to by you in Court), will likely lead to stricter restrictions being placed on you by the Family Court in regards to the access you have to your children. This will particularly be the case if there is evidence demonstrating that the child was either present during the allegations or was themselves a victim.
A final AVO that is set against you without the allegations being proven will in all likelihood mean lesser child-access restrictions
Another potential consequence of an AVO includes not being able to get a job working with children, as you may be prevented from acquiring a Working with Children Check (WWCC), or an existing WWCC may be voided if the Children’s Guardian deems you to be a risk to children’s safety following a risk assessment.
If you are a defendant in an AVO case and an interim AVO is made against you, your firearms licence or permit will automatically be suspended, and will immediately be revoked should a final AVO be made. In either of these cases, you will have to surrender your firearm to the police.
Call LY Lawyers, specialist AVO Lawyers on 1300 595 299.