Apprehended Violence Orders, usually referred to as AVO's, are Orders made under Part 15A of the Crimes Act 1900.

An AVO offers protection from domestic violence in NSW. An AVO offers protection against acts of violence such as the following: physical assault, non-physical abuse such as harassment or intimidation, damage or threatened damage to property. The purpose of an AVO is to protect the victim. The Order itself, although registered on a Police computer, is not a criminal record like a conviction for, say, assault.

AVO's are divided into two (2) categories: (a) Domestic and (b) Personal. 

Domestic AVO's:

A domestic relationship needs to have existed between Complainant and Defendant for this type of AVO to be made. A domestic relationship includes the following:

• a current or former spouse,
• a current or former de facto partner,
• a person who lives or formerly lived in the same house of (excluding tenant or boarder),
• a person who is or was in an intimate personal relationship with the Offender.

It is important to note that AVO's will also provide protection for people in same sex relationships. 

Personal AVO's:

This category of AVO's protects a person from a Defendant when there is no domestic relationship between the Defendant and Complainant.

Orders can also protect persons with whom persons seeking the AVO has a domestic relationship. This includes the victim's children, parents or partner. 

GETTING AN APPREHENDED VIOLENCE ORDER 

PROCEDURES:

Go to the Local Court most convenient to you and express that you would like to see the Chamber Magistrate to make a complaint. It is a good idea to ring first as an appointment may be necessary.

A complaint may only be made by the person for whose protection the Order will be made or by a Police Officer. A complaint may be made orally or in writing. Many Courts require appointments to be made but they will accommodate urgent appointments. Every complaint is to be testified on oath before a Magistrate. Complaints for the protection of people under sixteen (16) years must be referred to the Police.

Explain to the Chamber Magistrate that you wish for an AVO and the reasons as to why you want it. A Hearing date will then be arranged and Summons will be sent out to the Defendant to appear on that date. 

URGENT APPLICATIONS: 

If you cannot wait until the Hearing and you are particularly fearful you may ask the Chamber Magistrate for an Interim Order whereas your matter will be heard, before a Magistrate in Court, as soon as possible, normally that day, and Orders will take effect until the Hearing date. N.B. The Orders are not enforceable until the Defendant is served.

If due to the circumstances you are unable to attend Court or your immediate situation is fearful you may attend a Police Station where a Police Officer may apply for an Interim AVO by telephone.

If the Police Officer suspects or believes that a domestic violence offence or a child abuse offence is about to be committed or has recently been committed or is likely to be committed he or she must apply for the Telephone Orders. Telephone Orders embrace standard terms which prevent the Defendant from harassing, molesting, stalking or intimidating or causing any personal injury to the protected person. 

Terms may also, if the Police Officer so requests, restrict the Defendant from approaching the protected person, or from having access to specified premises occupied by that person. You will then and there be issued with an Interim AVO which lasts for fourteen (14) days or until a further Order made by the Court and the Defendant is present in Court ie. the Hearing date.

The first Hearing will usually take place a few weeks after the Application for the AVO. This first Court date is known as a first Return date or a Mention. The full case will not be heard but the Magistrate will decide how you and the Defendant are intending to proceed. 

If the Defendant attends Court:

The Defendant can consent or agree to the Orders being made without admitting to the facts contained in the complaint. The consented Orders (see below, Example of Orders sought against a Defendant) will then be made by the Court and the Defendant must abide by them. The majority of AVO's are made by consent. On the Defendant's first appearance in Court you should ascertain from the Defendant or his/her legal representative whether or not the Defendant is willing to consent to the Order. The Defendant then will usually attend the Court counter for service of the Order after it has been typed. 

If the Defendant does not attend Court:

If there is proof of service then an Order can be made ex-parte, that is an Order can be made in his/her absence. You will still be required to give evidence. If the Defendant has not been served then the complaint will be adjourned to enable him/her to be served. In that case an Interim Order should be sought or continued at this time if protection is required until the next day at Court. 

If the Defendant does not consent to the Order being made:

In this case the matter will be set down for Hearing. It may be necessary to seek an Interim Order to have it continued to provide protection until that time. The victim should obtain a copy of the Interim Order before leaving the Court and keep it in a safe place, as he/she will need to show it to the Police in the event that the Defendant breaches the Order. 

SHOULD YOU AGREE TO AN AVO AGAINST YOU 

Legal advice should be obtained before a decision is made. It is NOT enough to say - if you are not going to assault the Applicant or harass them - there is no harm in entering the Order.

There are far reaching consequences if an Order is made on many people, including Security Licence holders and firearm licence holders. 

Hearing:

At the Court Hearing the victim must establish he or she fears that the Defendant will commit a personal violence offence against him or her, or that he or she will suffer harassment or molestation by the Defendant, or that the Defendant will intimidate or stalk the person seeking protection. He or she then must establish that the fear is based on reasonable grounds.

This is done by having the victim give evidence. Both the victim and the Defendant will be cross examined. It is at the hearing that you will be required to bring witnesses to support your case. Care should be given when deciding who you should call. The Magistrate will not give you legal advice on how the case should be run.

The Court will then decide, on the balance of probabilities, whether the victim has reasonable grounds to fear the Defendant, in order to grant an AVO. 

Evidence:

The victim must establish to the Court that the fear is based on reasonable grounds. The victim does this by leading evidence into the Court. The evidence will usually be in the form of the victim's testimony where the victim will establish a clear account of the history of the violence or harassment including any threats made against the victim. The victim may also use as evidence any Doctor's certificates, photographs etc. 

Keeping a diary:

With respect to the evidence issue, keeping a personal diary and recording details of incidents which occur with respect to the offensive behaviour, may be of much assistance, especially, if the offensive acts have occurred over a period of time.

Relying solely on memory is in many cases a problem because people tend to remember things differently and in most cases forget important details. Having a diary from which to refresh your memory will usually have a greater evidentiary impact from say evidence which is based solely on memory, which in some cases can tend to be hazy and ambiguous.

Once you have given your testimony you may be cross examined by the Defendant or his/her legal representative. The aim of the cross examination will be mainly to point out any inconsistencies in your story or behaviour or past behaviour. 

If an Application for an AVO is successful:

You should keep a copy with you at all times or in a safe place. If the Defendant then proceeds to breach the Order, you should contact the Police and show them the Order. They will then proceed to arrest the Defendant without a Warrant. 

If an Application for an AVO is unsuccessful:

You may lodge an Appeal with the District Court within twenty eight (28) days of the Local Court decision. The District Court will usually only hear the evidence which was put before the Local Court. If you wish further evidence or additional evidence to be put to the District Court you must get leave to do so from the District Court. 

AFTER THE AVO IS MADE 

The fact that the AVO has been made does not mean that the Defendant will have a criminal record. Proceedings for an AVO are not criminal proceedings. It is only when the Defendant breaches an Order that he or she commits a criminal offence.

A Defendant will have any firearms or prohibited weapons Licence or Permits suspended or revoked, and no Licence or Permit will be issued within the ten (10) years of making of the AVO.

If the Defendant does breach the AVO the onus is on the victim to give effect to the Order by calling the Police when a breach occurs. A breach of an AVO is a criminal offence and the Defendant is liable to be arrested. Any breach of any term of an AVO is an offence.

When an offender is arrested he/she will be charged and, depending on the seriousness of the breach, is unlikely to be granted bail. A person convicted of an offence of knowingly breaching an Order must be sentenced to a term of imprisonment if the breach involved an act of violence, unless the Magistrate finds reasons why they should not be imprisoned. 

VARIATION AND REVOCATION: 

If you find that your circumstances have changed and you need to vary the AVO, that is you need to change a term of the AVO to ensure that you are still protected or you, as a Defendant, do not believe there are grounds to continue the Order.

You must make an Application to Vary or Revoke an Order. Notice must be given to the other party before the Order will be varied or revoked. The Court can refuse to hear an Application to Vary or Revoke an AVO if the Court is satisfied that there has been no change in the circumstances on which the AVO was granted in the first place and that the Application to Vary or Revoke is in effect an Appeal against the making of the Order. 

FAMILY COURT CONTACT AND AVOS 

If a Family Court Contact Order and an AVO are inconsistent the Family Court Contact Order will prevail to the extent of the inconsistency with the AVO.

Notwithstanding, Contact Orders may be varied by the Local Court, that is in the AVO proceedings the Magistrate may make, revive, vary, discharge or suspend a Contact Order if an AVO is made. In these circumstances the Court must have regard to the best interests of the child.

The Court in making its decision must have recourse to the following:

• a person has been exposed or is likely to be exposed to family violence as a result of the Contact Order, and
• it is in the best interests of the child. 

FURTHER INFORMATION 

This Information Outline is available courtesy of AussieLegal’s online legal information and law firm referral service.

If you want further information, we recommend contacting the law firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.