What is an Apprehended Violence Order (AVO)?

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An Apprehended Violence Order(AVO) is an order made by the court to protect a person who fears (and has reasonable grounds to fear), personal violence, intimidation or stalking.

There are two types of AVOs. The first and perhaps most common is the Apprehended Domestic Violence Order (ADVO), dealt with under Part 4 of the Crimes (Domestic and Personal Violence) Act. Apprehended Domestic Violence Orders are specific to instances where there is (or was) a domestic relationship between the defendant and the applicant (known as the Person In Need Of Protection - or 'PINOP'). A domestic relationship is defined in the act as a person:

'who is or has been married, a de facto partner, had an intimate relationship (whether sexual or not), is living with or has lived with the person. The definition also extends to relatives, those with kinship ties (brothers and sisters for example) and also persons living in a residential facility (but not a correction centre or Juvenile detention centre)'

The second category of AVOs is Apprehended Personal Violence Orders (APVO), dealt with under part 5 of the act. APVOs are for cases where there is no domestic relationship between the PINOP and the defendant, for example - a neighbour or a work colleague.

Applications for Apprehended Violence Orders

AVO applications and provisional orders

An AVO application is dealt with by section 48 of the act. An application can be made by the PINOP directly or the police may make the application on the PINOP's behalf. Where the police make the application, they may seek a provisional order, authorised by part 7 of the Act. A provisional order application can be made by a police officer over the telephone, through facsimile or other communication devices to an authorised officer of the court. Provisional orders last for 28 days unless revoked by the court earlier. If the court makes an interim or final order on the first court date, the provisional order ceases to have effect.

New South Wales law regarding AVOs states that where a police officer suspects or believes that:

A domestic violence offence or an offence against section 13 of the act (stalking or intimidation with intent to cause fear of physical or mental harm) has recently been committed, is being committed, or is imminent against the person for whose protection an order would be made, then the officer must make an application for a provisional apprehended violence order. There are circumstances in which the police can use discretion and decline to make an application for an order, such as where the police officer investigating the incident believes that there is a good reason not to make the application.

Defending an application for an apprehended violence order

Having an apprehended violence order made against you can be a daunting thing, however it is important to remember that the actual order itself does not constitute a criminal conviction and, therefore, an AVO of itself will not constitute what most people regard as 'a criminal record'.

Standard of proof

AVO applications are determined by reference to the civil standard or proof - ie. on the 'balance of probabilities'. Any charges accompanying the AVO application, or charges for breach of the AVO, will be determined on the higher criminal standard of proof - 'beyond reasonable doubt'.

Interim Orders

Where the court considers it "necessary or appropriate", it will make an 'interim order' in accordance with Part 6 of the Act. Interim orders are made to ensure protection of the victim in the time between when the matter first comes to court and at the final determination of the matter. They stay in effect until final orders are made, unless the order is revoked or the complaint is withdrawn or dismissed.

Interim orders are often put in place as a matter of caution, they are not to be taken as any admission of fact or guilt in the later proceedings. Similar to provisional orders a court where there is a serious offence (which includes a domestic violence offence as well as attempted murder, stalking and many others under the Crimes Act 1900) the court must make an interim order against the defendant for the protection of the victim regardless of whether there has been an application made for one, this is prescribed for in section 40 of the act.

Final orders and conditions

A final AVO consists of mandatory and optional orders/conditions. The mandatory orders are essentially a base line for all AVOs. They prescribe the basic protection that the legislation prescribes, which is that 'the defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person'.

In addition to the mandatory orders, there are additional optional conditions the court may consider imposing. AVOs commonly contain optional orders preventing the defendant from approaching the PINOP's place of residence, work, school, etc. The court can also make property recovery orders, which allow the defendant or victim to recover their personal property from the home (usually accompanied) of the police.

In addition to the specific orders and conditions within the AVO, the police will seize any firearms found in possession of the defendant, and any firearms license will be revoked. The defendant will be prevented from obtaining a firearms licence for a period of 10 years.

Costs

Section 99 of the Crimes (Domestic and Personal Violence) Act provides that costs may be awarded to either the applicant or the defendant. This means that your legal fees incurred in defending an AVO application may be recoverable in certain circumstances. In private applications, costs cannot be awarded against the applicant unless the claim is considered to be frivolous or vexatious. The question of costs against police was considered in the case of Redman v Willcocks [2010] NSWSC 1268. In that case, the PINOP for the AVO had informed the police officer that she no longer held fears (to the effect that the court would not have made an order against the defendant). The police agreed to withdraw the matter but failed to actually do so, which meant that the defendant had to engage legal representation for the matter. The court ordered the police to pay the defendant's legal costs.

Termination of residential tenancy leases

Where a defendant has been a joint tenant with the PINOP, section 79 of the Residential Tenancies Act 2010 provides that the defendant's lease is terminated if the final AVO prohibits the defendant accessing or residing in the residential premises. This can mean that if a final AVO order is made against a person they will have to relocate and change their living arrangements.

Going to court for your AVO

The first court date

The first court date is a "mention". This means that the case will be mentioned before the Local Court magistrate to determine how the application should proceed. A defendant has two primary options on the first court date: consent to the application or defend it. If the defendant consents to the order, the magistrate will make the final orders on the spot, and there will be no need to return to the court again in relation to the AVO application. If the defendant wishes to defend the AVO application, then the court will set down a timetable for the exchange of evidence before (usually) bringing the parties back for a second mention.

The second mention

On the second court date, assuming each party has complied with the procedural directions given by the magistrate, then a hearing day will be set. The final hearing date is normally several weeks after the second mention, which is itself several weeks after the first mention. In total, a defended AVO application typically takes 12 - 15 weeks from start to finish, although this can vary considerably between different court registries (for example, busy registries may not be able to allocate a hearing date for several months). If the parties have not complied with the procedural directions, the court may strike out the application or make final orders (depending on which party has failed to comply), adjourn the matter for another mention, or set the matter down for hearing regardless.

The final hearing

At the hearing, each party is required to present its case. The applicant (PINOP) presents his or her case first before the defendant is able to present the case in reply. Evidence is given via written witness statements. In other words, when a witness is called they do not give evidence verbally, although they can be verbally cross-examined on that evidence. After the evidence has been presented to the court, each party is entitled to make submissions on the case. This is where the party can ask the court to apply certain weight to particular evidence (or not apply weight at all), and summarise their case. Parties will generally make submissions on whether the threshold test specified in the legislation has been satisfied.

The legal test

In order to succeed in a defended AVO application, the court must be satisfied of three things:

  • that the PINOP honestly holds a fear;
  • that the PINOP's fear is objectively reasonable; and
  • that the behaviour in the circumstances warrants the making of the order.

  • Contravention of Apprehended Violence Orders

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    Defendant must be aware of the order

    Breaching an AVO is a criminal offence and is dealt with under section 14 of the Crimes (Domestic and Personal Violence) Act. It must be shown that the defendant was aware of the AVO. If the defendant was not in court when the order was made, this is proved through evidence of police personally serving the order on them.

    Standard of proof

    The standard of proof for a breach of an AVO is the criminal standard of 'beyond a reasonable doubt'. This standard is higher that the civil standard of proof of 'the balance of probabilities', which applied to the original AVO application.

    Sentencing for AVO breach

    If a person either pleads guilty or is found guilty of a breach of an AVO, they are liable for up to 2 years imprisonment, however there are many other sentencing options available to the court. The final sentence will be determined by having regard to the objective seriousness of the breach and the personal history of the defendant, including their past criminal history.

    Other sentencing options that may be considered include good behaviour bonds, which releases the defendant into the community on the condition they are of good behaviour for a specific period of time, and community service orders, which requires the defendant fulfil a certain amount of hours community service.