APPREHENDED VIOLENCE ORDERS (AVOs)
An apprehended Violence Order (AVO) is an order made by a Court against a person who makes you fear for your safety, to protect you from further violence, intimidation or harassment. Such Orders can be obtained during a visit at the Police station.
AVOS are divided up into two categories:
- Apprehended Domestic Violence Orders (ADVO) are made where the people involved are related, living together or in an intimate relationship or have previously been in this situation. They are also available to people who are or have been in a dependent care arrangement with another person, including paid carers and to people living in the same residential facility.
- Personal Violence Orders (APVO) are for all other categories of victims where the parties involved are not related and do not have a domestic relationship (e.g. neighbours, colleagues etc.)
- There is a range of orders commonly made by the Court in relation to Apprehended Violence Order proceedings. Those common orders are as follows:
A. STATUTORY ORDERS
When the Court is granting an AVO to an applicant, the following orders must be made:
- The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s);
- The defendant must not reside at the premises at which the protected person(s) may from time to time reside or work, or other premises.
B. DISCRETIONARY ORDERS
The orders below are discretionary orders.
- The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises, (home/work);
- The defendant must not go within of the premises at which the protected person(s) may from time to time reside or work, or other specified premises, (home/work);
- The defendant must not approach, contact or telephone the protected person(s) except as agreed in writing or for the purpose permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.
- The defendant must not approach, contact or telephone the protected person(s) except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorized by an order, or a registered parenting plan under the Family Law Act 1975;
- The defendant must not contact the protected person(s) by any means (including through a third person) except through the defendant’s legal representative;
- The defendant must surrender all firearms and related licenses to police;
- The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises:(school/child care/other);
- The defendant must not approach the protected person(s) within twelve (12) hours of consuming intoxicating liquor or drugs;
- The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s);
C. ORDERS BY CONSENT AND WITHOUT ADMISSION
Apprehended Violence Orders (AVOs) can be made by consent and without any admission of wrongdoing by the defendant.
Generally, consenting to an AVO without admission guarantees a quick resolution of the matter, an important reduction in legal costs and the avoidance of a formal hearing.
At GMH Legal our team has received appropriate and targeted training in dealing with family and domestic violence concerns. We are aware of the nature, features and dynamics of such issues and have the expertise needed to identify our clients’ concerns and respond appropriately.
GETTING AN AVO
You may need an AVO to protect you were:
- Someone has hurt you
- You are scared that someone will hurt you
- Someone is intimidating you, harassing or stalking you
A- HOW DO I APPLY FOR AN AVO?
To apply for an AVO, you need to show that:
- You fear the defendant; and
- There are reasonable grounds for you to have this fear
An application for an AVO can be made by a police offer on your behalf (called a police application) or by you personally through the Local Court (called a private application).
Once an application is filed, a date will be set for when the parties will need to go to Court.
Please note that if you are under the age of 16, the police must apply for the AVO on your behalf. See the NSW Government’s ‘AVO to protect children’ section.
B- ARE MY CHILDREN ALSO PROTECTED BY AN AVO?
If an AVO application is made to protect a person and they have children who are under the age of 16, the children must also be listed on the AVO as protected persons.
The children’s names may be removed from the AVO is the Magistrate finds that there are good reasons for doing so.
Children may give evidence in AVO cases, however Courts try to avoid this unless it is in the interests of justice. When a child gives evidence the Court may be closed and everyone not involved in the case will be asked to leave the courtroom. A child may also be able to give evidence from a recording or using a close-circuit television.
For more information, please refer to the NSW Government’s ‘AVO to protect children’ section.
C- CAN I GET AN AVO IF I AM NOT AUSTRALIA?
If you are in Australia on a temporary visa and you are a victim of domestic or family violence, you may be concerned about the effect that leaving your partner and getting an AVO will have on you.
In certain situations, if you are a victim of domestic or family violence, you may be able to end your relationship with your partner and be granted a permanent visa.
These situations include where:
- You are waiting for a decision on your permanent partner visa
- You came to Australia on a prospective marriage spouse visa and have married your sponsoring spouse
- You are a secondary applicant for some permanent economic stream visas such as employer-nominated scheme visas or business skills visas and your relationship has ended sine the application was lodged.
Please note that the Department of Immigration an Citizenship has to be satisfied that there was a genuine spousal relationship before the relationship broke down prior to considering the evidence of domestic or family violence and whether to grant a permanent visa.
DEFENDING AN AVO
Once an AVO application has been filed by the Police or by the protected person through the Local Court, you will be served a copy of the application and be requested to go to Court to respond to the application.
Before responding to an application for an AVO you should consider:
- Whether the applicant can prove there is a need for an AVO to be made
- Who is listed as a protected person.
A child of the protected person will often automatically be included as a protected person. This may affect contact with you children.
Going to Court
The first Court date is called a ‘mention’. The Magistrate will want to know:
- If the applicant still wants to go ahead with the application
- How you want to respond to the application
Depending on what you and the applicant want to do, the matter may be finalised on the day or it may be adjourned (postponed) to another day. You may:
- Ask for more time to get legal advice and the case may be adjourned
- Agree with the AVO being made, without admitting any of the allegations and a final AVO will be made
- Give a formal promise (undertaking) to the Court to stop the behaviour causing the protected person to fear you
- Not attend, and if there is evidence the application was served, an order may be made against you in your absence
- Not attend, and if there is no evidence, the application was served, the matter may be adjourned to allow the application to be served on you.
If you don’t agree with the AVO being made, the Magistrate may:
- Make orders for statements to be filed, then list the case for a further mention, before listing it for a hearing
- Refer the case to a Community Justice Centre (CJC) for mediation, if the application is for an Apprehended Personal Violence Order.
If the Police applied for the VAO on behalf of the protected person, they will represent the protected person. Sometimes a police offer or a Domestic Violence Liaison Officer (DVLO) may want to talk to you before the case.
At GMH Legal we recommend that you do not discuss what happened with the police officer of the DVLO as it might be used against you at a hearing. Only tell the police officer whether or not you agree to the AVO being made.
For more information, please refer to the NSW Government’s ‘Defending an AVO’ section.
CONSENTING OR NOT CONSENTING TO AN AVO
Consent to an AVO
- If you agree to the AVO, the Order will start immediately.
- You will not have to come back to Court unless you are charged with breaching the Order.
- By consenting to the Order, you do not have to agree with what the applicant say happened.
This is called consenting without admission. We advise our client to carefully consider the consequences of an Order being made, especially if you disagree with any of the allegations in the application. If an Order is made and it is alleged later that you have breached it, then you may be charged with a criminal offence.
Not consent to an AVO
- If you do not agree that an AVO order should be made, the Court will adjourn the case to decide whether or not to make an Order based on the available evidence.
- Prior to a matter being listed for hearing, the Court may order that each party is to serve on the other party a written statement of the oral evidence that they wish to rely upon at the hearing.
- The Court will set a timetable which will specify the date by when each party is to serve their written statements on the other party.
For more information, please refer to Legal Aid’s ‘AVO’ section.
WHAT HAPPENS AFTER YOUR COURT DATE?
If a final AVO is not granted, you may be able to appeal the decision to the District Court within 28 days.
If a final AVO is granted, then you will be protected by that AVO.
The defendant will only be given a criminal record if he/she breaches the AVO. The maximum penalty for breaching an AVO is a fine of $5,500 and/or two years imprisonment.
An AVO may place some restrictions on a defendant, such as stopping them from having firearm licenses, working in the security industry or working with children. The defendant may apply to have the AVO varied or revoked.
You may also apply to have the AVO varied, revoked or extended.
Please note that if circumstances changes between you and the protected person, it is very important for you to go back to Court to apply to change or cancel the Order. The AVO cannot be changed or cancelled without the knowledge of the protected person.
Call the experienced team at GMH Legal to assist you in your matter.
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