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    A common question we receive from defendants in AVO matters is, “what happens if the protected person breaches an AVO?”. This is particularly common where a condition of an AVO prohibits the defendant contacting the protected person. Can anything be done when the protected person in an AVO continues to contact the defendant?

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      Apprehended Violence Order

      What if the protected person breaches an AVO?

      An Apprehended Violence Order (AVO) is an order that restricts the behaviour of a person, known as a defendant, for the protection of someone else, known as the protected person or PINOP. There are 11 possible conditions which can imposed to facilitate this protection. Apprehended Violence Orders can be divided into two categories; domestic or personal. An Apprehended Domestic Violence Order (ADVO) covers situations where there is, or has been, a domestic relationship between the parties. An Apprehended Personal Violence Order (APVO) covers all non-domestic situations such as neighbour disputes.

      Can a protected person be charged with breaching an AVO?

      Apprehended violence orders only restrict the behaviour of the defendant. It is a criminal offence if the defendant breaches an AVO.  A protected person cannot breach an apprehended violence order because the order is merely there for their protection. A defendant may consent to an AVO being made, however a protected person cannot consent to an AVO being breached. Once an AVO is enforceable it is always the responsibility of the defendant to comply with the order. NSW Police Force policy is very clear on this;

      A protected person named on an ADVO cannot be charged with aiding and abetting the breach of an ADVO. Police are encouraged to charge offenders who breach an ADVO”.

      Code of Practice for the NSW Police Force response to domestic and family violence

      What if the protected person doesn’t want the AVO?

      The parties involved in an AVO usually include an applicant, defendant and a protected person (also called a ‘person in need of protection’ or PINOP). In domestic situations police generally apply for an AVO on behalf of the protected person. Police do not require the consent of a protected person to apply for an AVO.  They can, and regularly do, make an application against the wishes of the protected person. This is because they are legally compelled to apply for an AVO. If police believe a domestic violence offence has been, is being, or is likely to be committed, then they must apply for an apprehended violence order.

      If the protected person doesn’t want an AVO, or wants to vary the conditions of an AVO, they need to apply to the court. If the AVO has been applied for by police, the views of the protected person will be considered, but is not the only factor a court takes into account. A protected person can lodge an application to vary or revoke an apprehended violence order however the mere lodgement of an application doesn’t mean it will be successful. Where the police are applicants they will still be able to convey their concerns to the court hearing the application and they can oppose the application.

      What if the protected person keeps breaching an AVO?

      A protected person cannot be charged with breaching an AVO. However, they can still be prosecuted for any criminal offences. If a protected person is repeatedly contacting a defendant or turning up to their work or home, then they may be charged. A defendant in an AVO can still call the police if they feel that they are being harassed by the protected person. In these situations, police may charge the protected person with offences such as; stalking or intimidation, or use carriage service to menace, harass or offend.

      Always contact a criminal lawyer as soon as possible

      If you are the defendant in an AVO you should always contact a criminal lawyer as soon as possible. There are also circumstances where a criminal lawyer can help a protected person to make an application or request to have an AVO withdrawn or varied. PINOPs can contact the police directly too. However, it is important to be mindful that your request, and any letters or emails you send, may later be produced in court proceedings. In these circumstances it is always best to contact a lawyer first before doing anything.

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