False AVO Claims
In recent years there has been a noticeable rise in false AVO claims being made to Police as well as taken out privately.
It will come as no surprise that having an apprehended violence order taken out against will cause significant stress to you and your loved ones.
The conditions associated with an AVO can impose restrictions on your behaviour. This can be particularly difficult to deal with, especially if it is unjustified.
There are a number of ways to beat an AVO. You can read about some recent cases where false AVO claims have been dismissed or withdrawn here.
What is an AVO?
An AVO is an apprehended violence order. It is a Court order imposed on a person for the protection of another person (or persons).
There are some mandatory conditions that come with an AVO, and then there are other optional conditions. These conditions restrict the behaviour of the person on whom the AVO is imposed.
Taking out an AVO against someone can have a serious impact on their life, and can restrict where they live, the places they visit and even their ability to carry out their employment.
AVOs are most commonly taken out in the context of domestic violence. However, they can also be taken out against friends, neighbours, work colleagues and family members.
Is Making False AVO Claims Illegal?
Making a false AVO claim is not a criminal offence. This is because an AVO is not considered a criminal charge.
The legislation that deals with making false accusations has strict requirements that must be proved.
Section 314 of the Crimes Act 1900 makes it a criminal offence to make a false accusation in NSW.
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Made an accusation against another person,
- By doing so, intended the other person to be subjected to an investigation,
- Knew accusation was false, and
- Knew the accused person was innocent.
The maximum penalty for making a false accusation is seven years imprisonment.
The seriousness of this offence is reflected in the sentencing statistics for making a false accusation. Judicial Commission of NSW data reveals that approximately half of these offenders were sentenced to full time imprisonment.
The remainder received intensive correction orders, community correction orders and good behaviour bonds.
How to Beat False AVO Claims
Beating false AVO claims can be difficult due to the nature of the orders and procedure involved in fighting them.
Once an application has been made, it can be difficult to withdraw an AVO. This is particularly so if Police take out the Application in the context of domestic violence.
The overwhelming majority of domestic violence allegations occur without any independent witnesses.
If Police are called and receive a complaint, they will generally apply for an AVO even if the person in need of protection (PINOP), does not want it.
If the PINOP later states that they have made a false accusation, Police often still refuse to revoke an AVO.
This is because they may believe the initial complaint and think that the retraction has only been made to protect the defendant. It can be very difficult to get an AVO dropped due to this.
With this is mind, AVO cases usually will proceed to a defended Hearing where witnesses are required to give evidence in Court. At the Hearing, a Magistrate will decide whether the AVO should be made or not.
What the Law Says
In order for an AVO to be made, Section 16 of the Crimes (Domestic and Personal Violence) Act sets out the factors that must be proved on the balance of probabilities:
The alleged victim has reasonable grounds to fear a personal violence offence from you; and
The alleged victim, fears a personal violence offence from you unless:
It is appropriate to make an AVO in the terms sought.
a) The alleged victim is under 16 years of age
b) The alleged victim has a mental impairment
c) the alleged victim has, in the past, been subject to a personal violence offence from you and the court believes there is a reasonable likelihood of it occurring again.
In determining whether to make an AVO, Section 17(2) of the Act allows the Court to consider:
“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
any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and
the accommodation needs of all relevant parties, in particular the protected person and any children, and
any other relevant matter.”
However, if you have been found guilty of associated criminal charges, such as common assault, then the AVO will be made automatically.
Having an experienced AVO lawyer who can systematically cross-examine witnesses and persuade the Court that the allegations are false will go a long way towards having false AVO claims dismissed.
Why Do People Make False AVO Claims?
There are a number of reasons by a person would fabricate evidence to take out an AVO against another person.
A very common example is in the context of a separation for divorce.
It is not uncommon for people to make false domestic violence claims in family court proceedings to gain an advantage.
Indeed, a disturbing trend that has emerged in recent years is false accusations of child abuse.
These accusations have become so common that a retiring Family Court justice suggested measures against parents who use false claims of child abuse as a “weapon” to stop spouses from seeing their children.
There have even been Australian government studies conducted that suggest approximately 20% of child sexual abuse allegations are malicious.
A defendant who is subject to false AVO claims can have their behaviour significantly restricted. This can include preventing contact with children as well as preventing attendance at the child's school.
Because of this, many people search for the best criminal lawyers when fighting an AVO.
Are False AVO Claims Common?
While it is difficult to ‘broad stroke' how common false AVO claims are, there are statistics which can provide some guidance.
A recent study conducted by BOSCAR shows that despite there being more applications for AVOs being made, the number of AVOs that were granted remained largely steady.
In one year, the number of AVOs that were granted decreased. This seems to support the trend of more false AVO claims being made.
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.