How to defend an AVO
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 nowadays, 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.
The test for granting an AVO is as follows:
The court may make an AVO where the complainant (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.
What is the process of defending an AVO?
Once the AVO is received, you will be required to attend court for the first court appearance. 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.
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 no 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, that 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 represent 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.
Call LY Lawyers, specialist AVO Lawyers on 1300 595 299.