If you are served with an AVO you are required to appear in Court.
An AVO is an abbreviation for Apprehended Violence Order and can either be an Apprehended Personal Violence Order or an Apprehended Domestic Violence Order.
AVO proceedings are considered civil proceedings in Court, not criminal proceedings. It can only become a criminal proceeding if an AVO is breached as the breach of the AVO is a criminal offence.
However, despite AVOs being civil proceedings, they do have consequences. It affects Family Court proceedings and child custody disputes, working with children clearance checks, firearms licences/permits and tenancy agreements.
AVO applications are made by taking out an AVO to protect a person(s) from another person.
An AVO order restricts or prohibits a defendant from contacting or from doing certain things to the person(s) who is need of protection, referred to commonly as the protected person in the AVO. For example, a defendant named in an AVO can be restricted from contacting or approaching a protected person named in the AVO. This restriction can also include children of the protected person (even if that child is also the defendant’s child) and anyone with whom the protected person has a domestic relationship.
As indicated in the attached flowchart, there are several ways to deal with an AVO.
To negotiate such that the AVO is able to be withdrawn, either on the basis of both parties entering into undertakings which are not enforceable at law but which ware kept on the Court file, or negotiating withdrawal of the AVO.
Consent to the AVO without admissions and a final AVO order will be made by the Court.
Oppose the AVO and the Court will issue a timetable for the filing of documents by both the defendant and the person in need of protection, then a date for compliance check and subsequently what is called a “show cause” hearing. The Court will dismiss an AVO following a hearing if the following occurred:-
1. The protected person or police are unable to prove the allegations in the AVO (on the balance of probabilities); or
2. The Court is not convinced, on the balance of probabilities, that the protected person actually fears the defendant and has reasonable grounds to fear the defendant committing a personal violence offence.
AVO conditions contain mandatory and additional conditions. The mandatory conditions prohibit the defendant from doing the following three things:-
· Threaten or assault the protected person or someone with whom the protected person has a domestic relationship;
· Intimidate, harass or stalk the protected person or someone with whom the protected person has a domestic relationship;
· Recklessly or intentionally damage or destroy any of the protected person’s property or any property that is in the protected person’s possession. This includes the property of anyone with whom the protected person has a domestic relationship.
Additional AVO conditions can include prohibition of the defendant:-
· From approaching the protected person;
· From accessing the premises of the protected person;
· From approaching the protected person within 12 hours of drinking alcohol or taking illicit drugs;
· From having firearms or prohibited weapons.
The above are not the limit of the conditions that can be imposed.
Breach of AVO
Breaching an AVO is a crime which result in a criminal charge.
The Courts in New South Wales take the breach or contravention of an AVO extremely seriously.
A Court is required to consider a sentence of imprisonment if the AVO breach involved violence towards the protected person named in the AVO (Section 14(4)).
The police must be able to prove that you have breached any condition of the AVO and that at the time of the breach you knew that you were breaching that condition. The maximum sentence for an AVO breach is a $500.00 fine or two years imprisonment.
Consequences of an AVO on you
· Family Court proceedings
The Family Law Act 1975 (Cth) requires a party to a parenting or child dispute in Court to advise the Court of any AVO involving a child or family member of the child. The Court is then allowed to take this into account.
· Employment and Working with Children Clearances
An AVO can prevent you from getting a job involving working with children because it can prevent you from getting a working with children clearance (WWCC).
· Firearms Licence or Permits
As a defendant to an AVO, your firearms licence or permit will be suspended automatically upon an Interim AVO being made.
The firearm licence/permit gets automatically revoked if a Final AVO is made.
If either of these two things occur, you must surrender your firearm or weapon to the police.
See Section 23 and 24 of the Firearms Act 1996 (NSW) and Section 17 and 19 of the Weapons Prohibition Act 1998 (NSW).
· Termination of Tenancy Agreements
A residential tenancy agreement will be terminated if a Final AVO is made in Court against you, if the AVO condition stops you as a tenant from accessing or attending the premises (Section 79 of the Residential Tenancies Act 2010 (NSW)).
Property Recovery Orders and AVOs
Some AVOs may have conditions that prevent you from contacting the protected person or attending or entering the house where the protected person lives (even though you also live in that house).
This will prohibit you from attending that home despite you needing to go back there to retrieve some of your property, that is, clothes, car, jewellery, etc.
Alternatively, the protected person named in the AVO may want to retrieve belongings still located in your home.
To be able to safely go to that house to retrieve your belongings, without breaching the AVO conditions, you must apply to the Court for a property recovery order.
A property recovery order has the following effect:-
· It can allow for a nominated person to accompany you to retrieve the items from the house;
· It can require you to be accompanied by a police officer when attending to retrieve your belongings from the house;
· It can specify the time to attend prearranged by agreement between the person who occupies the house and the police officer;
· The person who resides in the home that your belongings are left in can be directed to allow you access to retrieve those belongings;
· It can specify the actual items you seek to retrieve back.
What happens at an AVO hearing
A contested AVO hearing is called a “show cause” hearing in the Local Court.
Written statements as evidence in Court
All evidence is given by written statements by each party in Court, namely the “protected person” and the defendant give their evidence through witness statements. This includes the evidence of any witnesses.
Those statements are required to be served prior to the hearing.
The Presiding Magistrate will read that statement.
After this occurs, the protected person (while in the witness box) will then be subjected to questioning by the defendant or defendant’s lawyer. This questioning is called “cross-examination”.
During the cross-examination the defence will test the protected person’s evidence and outline any inconsistencies.
After the protected person’s cross-examination is complete, the same process will occur for any other witness for the “protected person’s” side.
The same process will then occur in the defendant’s case.
Can I appeal an AVO?
There are two main types of AVO appeals in New South Wales. The first is an appeal to the District Court and the second is a review by way of an annulment of the Local Court decision to make or dismiss the AVO application.
AVO appeal to the District Court
A defendant has a right to appeal a Local Court’s AVO decision if the Local Court has done any of the following:-
· Made an AVO;
· Dismissed an AVO;
· Varied or revoked an AVO;
· Refused to vary or make an AVO; or
· Costs order.
Annulment: AVO review in the Local Court
A defendant can apply to the Local Court to annul an AVO order that was made in the absence of the defendant in court, if:0
· The defendant was not aware of the original court date at the time the AVO order was made;
· The defendant was hindered by illness, accident or misadventure or other reason from taking action when the original Court made the AVO decision; or
· It is in the interest of justice given the circumstances.