By Perry Katsanos,

Solicitor, LY Lawyers.

Last week, we looked at the nature of domestic violence and the ways in which police and the courts can deal with domestic violence offenders by way of Apprehended Violence Orders (AVOs). This week, I will delve into the very test that the courts apply in enforcing an AVO.

 

When will the court make an apprehended domestic violence order?

 

A court may make an Apprehended Domestic Violence Order (ADVO) or an Apprehended Personal Violence Order (APVO) if it is satisfied on the balance of probabilities that the protected person has reasonable grounds to fear (based on an objective test) and in fact fears (based on a subjective test) that the following exist:

• The defendant will commit a personal violence offence against them; or
• The defendant will intimidate (them or those in a domestic relationship with them) or stalk them;
• And it is the courts’ opinion that the conduct is sufficient to warrant an AVO.

 

The balance of probabilities is a legal standard applied in many jurisdictions for deciding the outcome of civil disputes which requires that a dispute be decided in favour of the party whose claims are more likely to be true.

 

There are however, certain circumstances when the protected persons’ fears are not required for an AVO to be put in place. These instances are when:

(a)    The person is under 16 years of age (ADVO and APVO); or

(b)   Is in the opinion of the court, appreciably below average general intelligence (ADVO and APVO) ; or

(c)    In the opinion of the court : (ADVO only)

(i)                 The protected person has been subjected at any time to personal violence by the defendant; AND

(ii)               There is a reasonable likelihood that the alleged defendant may commit a personal violence offence against the protected person; AND

(iii)             The making of an order is necessary in the circumstances to protect the protected person from further violence.

What is an interim apprehended domestic violence order?

The term interim order refers to an order passed by a court during the pendency of the litigation. It is generally passed by the Court to ensure status quo.

As I discussed last week, it is police who usually apply for an interim order, when investigating matters of offences relating to domestic violence.

An order must be made on charge of certain offences. When a person is before the court charged with a serious offence the court must make an Interim AVO against the defendant for the protection of the protected person whether or not an application for an order has been made. Serious offences include such things as, attempted murder, a domestic violence offence, grievous bodily harm, wounding and various acts of indecency to name a few. For a clearer view of such charges being on the high end of seriousness, it is always best to consult a lawyer for legal advice.

A court may make interim orders if it appears to the court that it is necessary or appropriate to do so. Interim orders can be granted if the defendant is present or not (in court) or even if the defendant has been given notice of the proceedings or not. Once an interim order has been made the court will adjourn it so that the defendant can be summoned to answer the complaints

 

Are Interim Orders enforceable?

Interim orders are not enforceable until they have been served upon a defendant. However, once they have been served upon a defendant the interim order has the same effect as a final order. They remain in force until they are either revoked or a final order has been made and the defendant has to be present in court or it is served upon the defendant, otherwise any application that does not meet these requirements has to be withdrawn or dismissed.

 

What is a property recovery orders?

As I mentioned in last week’s edition, I will look at what can happen, in the unfortunate event you may find yourself in a domestic violence incident.

When making a provisional, interim or final order, the authorized officer or court may make a property recovery order if:

(1)   The protected person has left personal property at the premises in which the defendant occupies; or

(2)   The defendant has left personal property at the premises which the protected person occupies.

 

Property recovery orders may do one of the following:

• Provide the access is to be at a time arranged between the occupier and a police officer;
• Direct the occupier to allow access to the person who has left the personal property (and police officer/specified person) to enable removal of the property;
• Require that the person who left the property be accompanied by a police officer or other specified person;
• Specify the type of property to which the order relates.

 

Things you may need to know about property orders:

A property order does not authorize entry by means of force nor does it allow a person to take property that the person does not own or have a legal right to possess (even if it is specified in the property recovery order)

How do I vary an apprehended domestic violence order?:

An application may at any time be made to vary or revoke a final or interim AVO by the protected person, police or the defendant. In cases where a child is on the order, only the police can apply to vary the AVO (except for expired AVO). The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final AVO or interim order.

A court can also, vary by extending/deleting term, or by amending, deleting or adding conditions to an AVO. Court may decline to hear applications if there is no charge in circumstances or application is in nature of an appeal.

Notice must be served personally on each party or as court directs. If an application is made before the expiry date, the order is taken to continue until dealt with. Variation may be made to a final or interim order on guilty plea or finding in court.

Varying expired AVOs:

You can apply to revoke an expired AVO. The test is that the court must be satisfied that if the final order were still in force, it should be revoked. To do this, the court must take into account, the effect on protected person having regard to grounds upon which made, and courts may order further application, may not be made without leave.

 

Family Law and AVOs:

The applicant for an AVO must advise the court of any current or pending family court orders or proceedings. A Magistrate may suspend a Family Law Order to allow state bail and an AVO to take effect.

 

What are the costs of an AVO proceeding?

A court may, in AVO proceedings award costs to either applicant or defendant. A court is not to award costs against an applicant for an ADVO unless satisfied the application was frivolous or vexatious. A court is also not to award costs against a police applicant unless satisfied police made the application knowing it contained matter that was false or misleading in a material particular.

 

I hope that this information may be useful for those unfortunate to find themselves in a situation of domestic violence, or for anyone they may know. If you find yourself in such an awful predicament, it is always comforting to go and speak to your solicitor to get some more detailed advice.

Call LY Lawyers on 1300 595 299 for a free consultation.