AVO Lawyers Parramatta

If you are facing an apprehended violence order, you should immediately consult an experienced AVO lawyer. This is because the making of an AVO can have consequences for your career, employment and ability to contact your family members.

The information below relates to situations where an AVO is sought and there are no criminal charges. Where there is an application for an AVO and there are also criminal charges arising out of the same incident, the case will generally be set for a defended hearing if you are pleading ‘not guilty’.

What is an Apprehended Violence Order (AVO)?

An apprehended violence order (AVO) is an order that restricts the behaviour of a person for the protection of another person.

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.

The purpose of an AVO is to restrict a person from intimidating, harassing, stalking, assaulting, to even communicating with or being within a certain distance (eg. 100 metres) of any person named as a ‘person in need of protection’ (PINOP).

What is an Apprehended Domestic Violence Order (ADVO)?

Apprehended Domestic Violence Orders (ADVOs) are made when there is or has been a domestic relationship between two people. The definition of domestic relationship is very broad. If police are contacted in relation to a domestic incident there are circumstances where they must apply for an apprehended violence order.

This occurs even if the alleged victim in the matter expressly indicates that they do not want an AVO to be applied for. Police are legally required to make an application for an apprehended violence order if they believe that a domestic violence offence:

• Has been committed
• Is being committed
• Is imminent or likely to be committed

What is an Apprehended Personal Violence Order (APVO)?

Apprehended Personal Violence Orders (APVOs) are made when there is no domestic relationship between the parties. These are common where the dispute is between neighbours. Except in the case of serious assaults, police do not generally apply for a personal AVO on someone’s behalf. In most instances a personal AVO is initiated by the applicant attending court and making an application through the registrar.

Types of AVOs

There are two types of apprehended violence orders – apprehended domestic violence orders (ADVOs) and apprehended personal violence orders (APVOs). However, there are four stages to an AVO. These depend on how they were applied for and what stage of the court process they are up to:

1. Application: This is when the application is first made. The order is not enforceable at this time. AVO’s that are non-enforceable applications are usually either personal AVO’s from the court, or domestic AVO’s that the police have not deemed serious enough to warrant a provisional order.
2. Provisional: A provisional AVO is enforceable. These are usually issued by a senior police officer in connection with an allegation of domestic violence. A provisional AVO remains enforceable until it is either revoked, made an interim order or final order, or it is withdrawn or dismissed.
3. Interim: An interim AVO is enforceable and is made by a court where it is deemed necessary and appropriate. Provisional orders are normally made into interim orders after the first court appearance. They remain enforceable until they are either revoked, made a final order, or it is withdrawn or dismissed.
4. Final: A final AVO is enforceable and is usually made at the end of court proceedings. They are usually enforceable for one to two years although can be longer.

How to Defend an AVO

If you want to know how to defend an AVO because you do not agree with, there is a process that must be followed. This process is set out in the Local Court Practice Note and involves the court setting a timetable. On the first appearance you or your lawyer indicate that the AVO is opposed and request a timetable to be set. The court then sets the following dates:

1. Applicant to serve: This is the date on which the applicant for the AVO (quite often the police) are required to serve all of the evidence they rely upon. They usually serve this on the defendant and also file a copy at the court.
2. Defence to serve: This is the date on which the defendant is required to serve all of the evidence they rely upon in response to the application.  They usually serve this on the defendant and also file a copy at the court.
3. Compliance mention: All parties return to court and the court ensures that parties have complied with the orders to serve their evidence. If so, the matter is allocated a hearing date. If not, the matter is usually adjourned.
4. Hearing: At a hearing for an apprehended violence order the court reads the evidence from each party. Witnesses may also be called to give evidence and also be cross examined by the other party. The court then determines if a final apprehended violence order will be made or the matter will be dismissed.

To make a final apprehended violence order after hearing all the evidence, a court needs to be satisfied that the protected person has reasonable grounds to fear, and does in fact fear, that the defendant will commit an offence against them. The standard of proof for these matters is on the balance of probabilities which means the court needs to find that it is more probable than not.

How to Fight an AVO

In order to fight an AVO, Section 16 of the Crimes (Domestic and Personal Violence) Act must be referred to. This sets out the factors that must be proved by the applicant on the balance of probabilities. When determining how to beat an AVO, you must prove that the below factors are not present:

1. The alleged victim has reasonable grounds to fear a personal violence offence from you; and
2. The alleged victim, fears a personal violence offence from you unless they are under 16 years of age or have a mental impairment or 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.
3. It is appropriate to make an AVO in the terms sought.

In determining whether to make an AVO, Section 17(2) of the Crimes (Domestic and Personal Violence) 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.”

 

How to Vary an AVO

You can vary an AVO by applying to the court to vary the conditions of the apprehended violence order. Generally, the applicant, protected person, defendant, or the police can apply. Applications need to be lodged at court and allocated a date on which they will be heard.

You should obtain legal advice from a specialist AVO lawyer if you are seeking to vary the conditions of an AVO or have the AVO revoked. This is because there are strict requirements and technical legal issues that may prevent a person from varying the AVO if it is not done correctly.

Is an AVO a criminal record?

An AVO will not give you a criminal record. If, however you are found guilty of breaching an AVO, you may receive a criminal conviction.

Does an AVO appear on a Police check?

No. As an AVO is not a criminal conviction, it will not appear on any Police check.

AVO Conditions NSW

An AVO may place restrictions on what you can and cannot do. Some common examples of conditions are:

• You cannot approach or contact a particular person or persons;
• You cannot enter a particular premises;
• You cannot go within a certain distance of a particular location;
• You cannot be in the company of a particular person within 12 hours of consuming alcohol.

Can I appeal an AVO?

Yes. There are different types of appeals that can be made, depending on how the case was dealt with in the Local Court.

Can an AVO be made if I am not at Court?

If you did not appear in Court when the AVO was made against you, you may be able to ‘annul’ the making of the AVO. This is known as an annulment application. You should speak to one of our lawyers about whether you satisfy the criteria for an annulment application.

If the annulment application is successful, the final AVO will be revoked and the AVO court process will start again.

How to Revoke an AVO

Yes. Even if a final AVO has been made, you can apply to the Local Court to later change the AVO conditions, or eliminate the AVO completely. In order to revoke an AVO you must do the following:

1. place all parties on notice (ie. Defendant, person in need of protection – and Police if required);
2. establish that there has been a change in circumstances which justifies revoking the AVO or amended the conditions.

If the “person in need of protection”, or one of the protected persons under the order, is a child under 16 years of age then only Police can apply to change or revoke the AVO.

Costs in AVO cases?

You can seek the other side pay your legal costs pursuant to Section 99 of the Crimes (Domestic and Personal Violence) Act 1999 (NSW).

In private AVO matters, costs can be awarded If they are just and reasonable if the other side’s application for the AVO was frivolous or vexatious.

However, under Under Section 99A of the Act, costs can only be ordered against a Police application for an AVO if Police knew the application contained matters that were false or misleading.

Have you breached an AVO?

Breaching an AVO is a very serious charge. If a domestic violence AVO is breached by an act of violence, the Court must start the sentencing exercise by considering a jail sentence. For further information see our page on contravene AVO.

Astor Legal are led by Avinash Singh, who is one of Australia’s most respected and highly sought-after lawyers, having represented some of Australia’s elite sportspeople including Olympians & National Rugby League (NRL) players. His client list has included names such as rugby league great, Andrew Johns.

Mr Singh has worked on some of the country’s most prolific cases for over ten years. He has been recognised by the Law Society as an Accredited Specialist in Criminal Law, placing him in the top 6% of Australian lawyers. He has successfully fought hundreds of AVO applications and had them withdrawn, dismissed and revoked.

You can view some recent cases where AVOs have been withdrawn, revoked and dismissed here. Alternatively, you can call us on (02) 7804 2823 to speak to a senior lawyer today.