The question of how to beat an AVO is one that lawyers answer almost daily. This is unsurprising given an Apprehended Violence Order (AVO) can have a devastating effect on yourself, your partner and your family.
It is important to understand that there are stringent processes involved with these orders. Defending an AVO can be a costly and lengthy process. That is why it is important to obtain legal advice early.
First Court Date
If after receiving legal advice you decide to oppose an AVO, you will need to advise the Magistrate of this on the first court date.
The case will then be adjourned for a second court date (the 'compliance check' date) to allow the parties time to file statements and evidence.
However, if there are also criminal charges associated with the AVO, then these will need to be determined before the AVO can be addressed. Often there will be domestic violence charges that accompany an AVO.
It is crucial that an experienced AVO lawyer assists you in the drafting of your statement(s). This is because once your statements and evidence are filed and served, they cannot be changed.
This is particularly so when fighting false AVO claims.
There is usually a provisional AVO or interim AVO that Police impose when they make an application for an AVO. On the first court date you can choose whether to oppose the provisional or interim AVO.
What is an Interim AVO?
An interim AVO is a temporary AVO which is enforceable while the Court case is ongoing.
On the first Court date, you must indicate whether you agree to the AVO being in effect for the duration of the court case on an 'interim basis'. If you oppose this, the Court will hear evidence from witnesses. This will involve the giving of evidence in chief and cross-examination.
The party seeking the interim AVO will have to show that an interim AVO is both "necessary and appropriate in the circumstances", pursuant to Section 22 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
It is important that you have a specialist AVO lawyers with you who can expertly cross-examine any witnesses and persuasively argue why an interim AVO order should not be made.
Second Court Date
The second Court date is to confirm that all parties have filed and served statements and evidence on the court and on each other. If this has been done, the Court will adjourn your case to a defended hearing known as a "show cause hearing".
If this has not been done, the Court may adjourn the case to allow parties to file evidence. If one party has filed and served evidence and the other has not, an application can be made by the party who has filed for the case to be finalised in their favour.
Final Court Date
At the final hearing, witnesses will be called to give evidence and be cross-examined. You will need a criminal lawyer who has years of experience in running defended Hearings to effectively cross examine the other party's witnesses.
This is often very complex and difficult. Statistics from BOSCAR confirm that there are over 20,000 apprehended violence orders granted each year. There are also rules of evidence as to what questions can be asked and what evidence is admissible. This goes some way to explaining why the question of how to beat an AVO does not have a simple answer.
Once all witnesses have given evidence, each party can make submissions as to why an AVO should or should not be made. The Magistrate will then deliver judgement.
What You Need to Beat an AVO
In order for an AVO to be made, Section 16 of the Act sets out the factors that must be proved on the balance of probabilities. When determining how to beat an AVO, you must prove that the below factors are not present:
- 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:
- The alleged victim is under 16 years of age
- The alleged victim has a mental impairment
- 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.
- It is appropriate to make an AVO in the terms sought.
In determining whether to make an AVO, Section 17(2) of the Act allows the Court to consider:
"(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."
However, if you have been found guilty of associated criminal charges, such as common assault, then the AVO will be made automatically. That is why it is important to strongly defend any criminal charges and have experienced assault lawyers in your corner.
How to Defend an AVO?
There a number of ways to defend an AVO including:
- Identification: The other side cannot prove that you were responsible for the behavior complained of.
- The alleged victim would not have reasonable grounds to fear a personal violence offence from you.
- The alleged victim does not actually fear you.
An AVO can affect a defendant's rights in family law proceedings and having a firearms licence.
In today's context, domestic violence charges are very common. Despite this, there have been a number of recent examples of AVOs being withdrawn and/or dismissed after retaining experienced criminal defence lawyers.
You can view some recent examples of AVOs being withdrawn, revoked and dismissed here. Having the best criminal lawyers for apprehended violence orders will go a long way towards this.
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.