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APPREHENDED VIOLENECE ORDERS (NSW)

31 December 2019

What are Apprehended Violence Orders?

Apprehended Violence Orders ('AVO') are designed to deter people from committing future acts of violence and to protect people who might be the victims of that violence. In New South Wales there are two types of AVOs. One is called an Apprehended Domestic Violence Order ('AVDO') and the other is Apprehended Personal Violence Order ('APVO'). An AVO is sometimes called an Intervention Order, Restraining Order, Protection Order, Domestic Violence Order or Family Violence Order.

The ADVO is aimed at protecting everyone including children who might experience or witness domestic violence and to reduce and prevent violence that might occur between people who are in a domestic relationship. This includes a spouse, de facto partner, ex-partner, family member, carer of person living in the same household.

The APVO is designed to protect people from personal violence including intimidation, harassment and stalking from others they are not in a domestic or family relationship with (and never have been). A neighbour who needs protection from another neighbour would seek an APVO.

Who Can Apply?

A person over the age of 16 or a Police Officer can apply for an AVO.  A person can speak to the Court Register at their local court.  If the behaviour amounts to a criminal offence, you should report the matter to police, whether or not you have a relationship with the perpetrator.  Police will assess your situation, obtain a statement if required and if they belief and suspect that an ADVO is necessary to ensure your safety and protection, they have an obligation to make the application on your behalf.

If you are experiencing violence you can apply for an AVO. You can also apply for an AVO if:

  • you are in fear of being assaulted
  • you are being intimidated, harassed or molested (either in person or by telephone calls, text messages, emails, or in other ways, including through Facebook or other social media), and fear for your safety
  • you are being stalked by someone where you live, where you work, or at places that you go.

Conditions:

Condition 1 is a mandatory condition and appears on all AVOs:

  1. The defendant must not do any of the following to <protected people>, or anyone <she/he/they> <has/have> a domestic relationship with:
  2. A) assault or threaten <her/him/them>,
  3. B) stalk, harass or intimidate <her/him/them>, and
  4. C) deliberately or recklessly destroy or damage anything that belongs to <protected people>.

Additional orders can be sought depending on the circumstances, for example:

Restrictions put in place against the Defendant:

  • No longer allowed to reside at the family home
  • Not allowed to contact the protected person except through the use of a lawyer,
  • Not allowed within a certain distance from the protected person/s residence, work or school.
  • Not allowed to be in the company of protected person for at least 12 hours after taking alcohol or drugs.
  • Not allowed to possess any firearms or prohibited weapons.
  • Not allowed to try and locate the Protected Person.

The order only becomes enforceable once served on the Defendant.

From 25 November 2017 all Domestic Violence Orders (DVOs) are now automatically recognised and enforceable. This means that NSW Police can enforce DVOs made on or after this date in other Australian states and territories. Other states and territories can also enforce an ADVO made in NSW from this date. Other states and territories can also vary or revoke orders made in NSW, and make new orders for the same parties.

Apprehended Personal Violence Orders (APVOs) are not nationally recognised and enforceable. You must register an APVO interstate to have it recognised. 

Retrieving Property:

If an AVO has been made, and you need to get your personal property, say from the house where the defendant is living, the court can make a Property Recovery Order at the same time as they make the AVO. This should be done on the first date you go to court. A Property Recovery Order allows either you or the defendant to get personal property from a home or other place. The Court can order the police to accompany the person recovering property for everyone’s safety.

When an AVO is made, the defendant does not get a criminal conviction or a criminal record. The details of the AVO are kept on a police database.

If the defendant has any firearms (guns), the police will seize (take) them. If the defendant has a firearms licence, the licence is automatically cancelled for 10 years. If the AVO is revoked (cancelled), the defendant can get their firearms licence back only if they are considered to be a fit and proper person to have a firearms licence.

 Changing or Revoking:

If there is a change of circumstances, you can apply to the Local Court or the police to have the AVO changed or cancelled. This is called a variation. However, if the only Protected Person on the AVO is a child under 16 years old, only the police can apply to change or cancel the AVO.

How long an AVO lasts for is up to the magistrate and depends on the situation.

 Consequences:

There can also be consequences of an AVO for the defendant if they want to have a security licence or work with children.

An AVO is a court order. If the defendant does something that the AVO says they must not do, they may be charged with a criminal offence. This is called a breach of the AVO.

You should always keep a copy of your AVO with you. If you have children, think about also giving a copy of the AVO to their school. You should make a report to police if the defendant breaches any of the conditions listed on the AVO. For example, if your AVO says that the defendant must not contact you, but they call your mobile phone. This is a breach and you should report this to the police.

 Defendant Does Not Consent:

If the defendant does not consent to the AVO, your case will be adjourned (postponed) for a hearing. The Court may decide to make an Interim (temporary) AVO to protect you until the hearing.

A hearing is when the magistrate listens to the evidence and decides if an AVO should be made.

If your matter is adjourned for hearing, you may be told by the magistrate to give written statements to the Court by a certain date. Your matter will usually be listed for mention (another court date) to see if both you and the defendant have done the statements. If the police applied for the AVO for you, they will be preparing the statements.

When both you and the defendant have given the Court your written statements the matter should be listed for a hearing. It is important that you attend court for the hearing. If you do not attend, the AVO application may be dismissed. If the defendant does not attend court, the AVO may be made in their absence.

 Which court has the power to make an Apprehended Violence Order (AVO)?

The Local Court and the Children's Court can make orders for an AVO and decide whether an AVO is necessary.

 What does the court consider when choosing to grant an application for an Apprehended Domestic Violence Order or Apprehended Personal Violence Order?

For an ADVO to be made, the court needs to be sure ('on the balance of probabilities') that the person for whom the order is being made ('the protected person') is fearful that the person whom the order is being made against ('the defendant') will commit an act of personal violence, intimidate, or stalk the person seeking protection.

If however the person needing protection is a child, the court doesn't need to be convinced that the child is actually fearful. It will order an AVO in circumstances where an act of personal violence has been committed against the child in the past or it's likely that an act of violence will be committed in the future.

 Matters that the court will consider when making an Apprehended Domestic Violence Order

The court's primary concern is the safety and protection of the protected person and any child that is affected by the actions of the defendant. In deciding whether to make an order the court will consider the living arrangements of the protected person and the defendant (and any children involved); the difficulties that the order will make in the lives of the protected person; and the accommodation needs of everyone involved. The court looks at these matters from the perspective of what is the likely impact in the making of an order.

Domestic Violence Liaison Officer (DVLO)

 What is their Role?

The DVLO is a specialist police officer, trained in the dynamics of domestic and family violence, child protection procedures, victim support and court AVO processes required for the protection of victims of family violence.

The role of the DVLO is:

  • To provide advice to police and victims.
  • Assist in referral to appropriate support agencies.
  • Maintain close working relationships with all support agencies.
  • Review and oversight all domestic and family violence reports and cases.
  • Assist victims through the court process for Apprehended Violence Orders (AVOs).
  • Monitor repeat victims and perpetrators.

Where are they located?

Each of the 80 Local Area Commands in NSW has one or more DVLO’s and they are located at the major Police Stations.

 Special terms

 What does 'balance of probabilities' mean?

Generally speaking, it means 'more likely than not' and is what is known as the civil burden of proof. It is unlike the criminal burden of proof which is 'beyond a reasonable doubt'.

 Who is the 'defendant'?

This is the person against whom the AVO is being made.

 What is a 'protected person'?

This is the person being protected by the AVO.

 What is the difference between 'interim', 'provisional' and 'final' AVO?

An 'interim' AVO may be made by the Court or Registrar. It has the same effect as a 'final' AVO. A Court has the power to make an interim AVO without the defendant being there or even knowing the order is being made. A Registrar can only make an interim AVO if the defendant and the protected person consent to the AVO.

A police officer may make a request to a Magistrate or Registrar of a court for an 'interim' AVO by way of a telephone call or fax. If the interim AVO is granted it is referred to as a 'provisional AVO'.

A 'final' AVO is the ADVO or APDO made by the Court and remains in force until it expires or is revoked.

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