apprehended violence orders, usually referred to as avo's
The primary function of an apprehended violence order or AVO is to protect a person against acts of violence such as but not limited to physical assault, harassment, stalking, intimidation, damage or threatened damage to property. AVOs are orders made under Part 15 A of the Crimes Act 1900 NSW. There are two types of AVOs:
- Domestic AVO – requires the existence of a domestic relationship between a complainant and defendant. A domestic relationship (includes same-sex relationship) covers:
- A current or former spouse;
- A current or former de facto partner;
- A person who was in an intimate relationship with the offender;
- A person who lives or formerly lived in the same house (excluding tenant or border).
Personal AVO – for the protection of any person where there is no domestic relationship.
Applying for an AVO
An AVO may be applied for by going to the local court and seeking an appointment with the Chamber Magistrate. The complaint against the offender must be subscribed and sworn to before a Magistrate. If there are children involved who are below 16 years old, the matter must be referred to the police. The local court will schedule a hearing date and will summon the defendant to court.
If there is an urgent application for AVO the magistrate court may issue an interim order on the same day. In the case of persons who fear for their lives or safety or that of their children, the police may apply for the Interim AVO in their behalf through telephone. The terms of the Interim AVO may include prevention of stalking, intimidating, going near the premises of the complainant, molesting, causing injury, or approaching the protected person. The Interim AVO lasts for 14 days or until another order is issued and it is effective upon service to the defendant.
The first court date is called First Return Date or a Mention. At this point the Magistrate will decide on how to proceed. There are three things that can happen:
- If the defendant appears and consents to the Order being made without admitting the allegations in the complaint, the court will then finalize the Consented Orders and the defendant is required to obey.
- If the defendant appears but does not consent then a hearing will be scheduled. An interim order must be sought if this happens for the protection of the complainant in the meantime.
- If the defendant does not appear and there is proof of service, an ex-parte Order can be made. The complainant will still be required to submit evidence. If there is no proof of service, the hearing will be adjourned until the defendant has been served. An interim order must still be sought or continued.
The complainant must provide evidence in support of her fears such as medical reports, witnesses who can testify to the violent acts or a diary which provides details of the incidents. The violent history of the defendant may also be raised. What is important is that the complainant will be able to establish that the fear is based on reasonable grounds. The complainant and the defendant will also be cross examined to determine the consistency of their allegations.
If the applicant is successful, a copy of the Order must be kept in case the defendant commits a breach. The order will be shown to the police who can arrest the defendant even without a warrant.
If the AVO application is unsuccessful, an appeal may be filed with the District Court within 28 days from the local court decision. Leave of court must be sought in order to be able to present new or additional evidence.
The issuance of an AVO is not a conviction and will not result to a criminal record. It is only when the defendant violates the AVO that he becomes criminally liable. However, permits or license for firearms will be suspended or revoked and no license or permit will be issued to the defendant within 10 years from the issuance of the AVO.
If the circumstances of either the complainant or the defendant have changed, an application to Vary or Revoke the Order can be filed. Notice must be served to the other party. The Court can refuse to entertain the application if is satisfied from the evidence that there has been no significant change in the circumstances.
Whenever a Family Court Contact Order is inconsistent with an AVO, the Family Contact Order will prevail to the extent of the inconsistency with the AVO. Contact orders may be varied, revoked, changed or suspended by the local court in AVO proceedings in consideration of the best interests of the child and to prevent exposure or possible exposure to family violence.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.