Australia: Your guide to Apprehended Violence Orders (AVO) in NSW

What is an Apprehended Violence Order (AVO)?

An AVO is an Order made by a court against a person for the following reasons:

  • That person has made you fear for your safety;
  • To protect you from further violence, intimidation or harassment;
  • To prohibit the person from assaulting, harassing, threatening, stalking, or intimidating, amongst other conditions.

The person that is feared is known as the defendant, and the defendant must obey the Order made by the court.

There are two types of Apprehended Violence Orders:

  1. Apprehended Domestic Violence Order (ADVO) is made where the people involved are related, living together or in an intimate relationship, or have previously been in a similar situation. They can also be available to people who are or have been in a dependent care arrangement with another person, including paid carers, and to people living in the same residential facility.
  2. Apprehended Personal Violence Order (APVO) is made where the people involved are not related and do not have a domestic relationship, for example, if they work together or live in the same neighbourhood.

In both circumstances, the police can make a Provisional AVO when they are waiting for the matter to be listed in court. When it is listed in court, the police can then apply for an interim AVO to protect a person, whilst the matter is pending.

A provisional order will remain in place for 28 days at the most. An interim AVO will remain in place until the matters has finalised, and either been dismissed or a final AVO has been granted.

If a final AVO is made, they are generally made for 12 months to 2 years. An alleged victim has the opportunity to extend the AVO prior to the end date, if they are still fearful of the Defendant, and have proof of same.

When can the court make an Order?

The Court can make an AVO if:

  • The Defendant has been served with the Application but does not come to court without a good reason;
  • The Defendant consents to an AVO being made; or
  • After hearing evidence, the Magistrate is satisfied that there are fears for a person's safety and those fears are reasonable.

Proceeding to Hearing

If the Defendant does not agree to the AVO being made, the matter will be delayed for Hearing. The Magistrate will then direct both the Defendant and the Police to file written statements to the court by a specific date. If the Applicant (person in need of protection) fails to comply with these directions, the court may dismiss the Application, or the court may delay the matter for the filing of these statements. Similarly, if the Defendant does not comply with the direction, they may not be able to give any evidence at Hearing.

Once both parties have complied with the direction of the Courts, the Magistrate will set the matter down for a Hearing.

At the Hearing, the evidence is usually based on what is contained in the statements; however the parties may be required to give further evidence verbally. The police may also submit a video or audio recording.

The Applicant or the Police Prosecutor on behalf of the Applicant, presents their case first. The Defendant or their lawyer will then have the opportunity to ask the Applicant and witnesses questions about the evidence. The Defendant will then present their case. The Police Prosecutor on behalf of the Applicant will have the opportunity to ask the Defendant questions about their evidence.

What conditions can be imposed?

The court can impose both Mandatory Conditions and Additional Conditions, if they deem it necessary.

Mandatory Conditions

  1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  2. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  3. The defendant must not stalk the protect person(s) or a person with whom the protected person(s) has/have a domestic relationship.

Additional Conditions

  1. The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises.
  2. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.
  3. The defendant must not go within a certain distance from where the protected person(s) may from time to time reside or work.
  4. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant's legal representative, or as agreed in writing, or as directed from Family Law Court Orders.
  5. The defendant must surrender all firearms and licences/permits.
  6. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care.
  7. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) may from time to time reside or work within a specified time of the defendant consuming drugs or alcohol.
  8. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).

Can the AVO be dismissed if the alleged Victim does not appear at Court?

A number of scenarios can occur if the alleged victim does not appear at Court. These include:

  • Dismissing the AVO;
  • Issuing a warrant for the arrest of the alleged victim (more likely if the alleged victim has been served with a subpoena);
  • Adjourning the matter to see if the police can get the alleged victim to attend court on another date; or
  • The matter is stood in the list until later on in the day to see if the police can contact the alleged victim to attend court.

Can I be charged along with the AVO?

Police can charge a Defendant, as well as take out an AVO on the Defendant. There is a chance that the charge or AVO can be dropped, however this is uncommon as Police are determined to have these matters dealt with in Court, according to law.

What effect will an AVO have on my future?

An AVO is not a criminal charge, so if an AVO is made, you won't get a criminal record. However, there are some issues that arrive in the event that an AVO is made against you. These include:

  • The police will record the AVO in their database.
  • If you have registered firearms, you will have to give them to the police, and your firearms licence or permit is automatically suspended by a provisional or interim order, and revoked by a final order.
  • You cannot obtain a new firearms licence for 10 years after the order has finished.
  • An order may affect your ability to work as a security officer, police officer or corrections officer, or if it involves children, it may also affect your ability to work with children.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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