interim apprehended violence order
an apprehended violence order (a.v.o.) can be made in a local court if the magistrate is satisfied that the applicant has reasonable grounds to fear, and in fact fears, any of the following:
- an act of personal violence against them by another person ('the Defendant');
- harassment or molestation of them by the Defendant;
- stalking of them by the Defendant;
- intimidation of them by the Defendant (where the Defendant has a domestic relationship with the Applicant).
The victim does not have to be physically assaulted or to suffer physical abuse to have an Order granted by the Court; intimidation or harassment by the Defendant is sufficient. Actual or threatened damage by the Defendant to the property of the Applicant are also grounds for an AVO application.
The Magistrate may make Orders that:
- restrict the Defendant approaching the Applicant;
- restrict the Defendant going to the residence, workplace, place of education or other place frequented by the Applicant;
- restrict specified behaviour of the Defendant which might affect the Applicant;
- restrict the possession of firearms by the Defendant;
- extend the Order to protect other persons with whom the Applicant has a domestic relationship, including children.
A.V.O.'s can be made for a maximum of two years. A Respondent may appeal to the District Court against the making of an A.V.O. The Applicant and the Respondent (or Police if they sought the A.V.O.) can apply to the Local Court for variation or revocation of an A.V.O.
How do you apply for an A.V.O?
You may apply for an A.V.O. yourself, or the Police may apply on your behalf. The Police are obliged to apply for an AVO. where they suspect or believe a domestic violence offence has been, or is likely to be, committed.
When the Police bring an Application for an A.V.O on your behalf then the Police Prosecutor must represent you in Court. You are not entitled to have your own private lawyer appear for you.
You can apply for an A.V.O. yourself by lodging a complaint with a Clerk of a Local Court. The clerk will prepare a summons containing details of the Orders you seek and the incident causing you to have fears for your safety. The Application will be listed in Court and a copy served on the Defendant. You may represent yourself or have a private lawyer appear for you. The Police Prosecutor will generally not appear unless Police have been involved.
Orders can be made by consent at the first Court date. If the Defendant does not consent to the AVO, the matter will be set down for hearing at a later date. At the hearing, evidence will be given by each party and any supporting witnesses.
Defending an A.V.O.
Defending A.V.O.'s can be stressful, costly and time consuming. You may choose to consent to the Orders sought (or different Orders agreed to by negotiation) without admitting the allegations made by the Applicant.
An A.V.O. however has serious consequences (see below) and you should only consent after careful consideration. If you do not consent to the Orders sought, the matter will proceed to a hearing. At a hearing, you are entitled to give evidence and cross-examine the Applicant. You are entitled to be represented at Court by a lawyer.
Consequences of an A.V.O.
The making of an A.V.O. does not constitute a criminal offence. A breach of an A.V.O. - if proved - however is a criminal offence (regardless of whether the particular incident that gave rise to the breach is itself a criminal offence). A report of an alleged breach of an A.V.O. will result in arrest and criminal charges being laid. Unless the Defendant pleads guilty, a Court will need to determine whether the A.V.O. was breached or not.
Depending on the terms of the A.V.O., an A.V.O. may restrict the Defendant spending time with their children. A Court Order allowing time spent between a parent and child will prevail over an A.V.O. but only to the extent that the Court Order is inconsistent with the terms of the A.V.O. Therefore terms of the A.V.O. that are not inconsistent continue to be in force.
An A.V.O. sought by a Police Officer for the protection of children could restrict the Defendant from obtaining or remaining in employment in any child related fields.
An A.V.O. may also restrict the ability of the Defendant to attend counselling and mediation with the Applicant.
- Domestic Violence may result in an A.V.O. as discussed above.
- Domestic Violence may be the basis of criminal charges being laid irrespective of whether an A.V.O. is sought.
- Domestic violence may allow the victim to seek compensation from the Victims Compensation Tribunal. If an award of compensation is made, the Tribunal may seek contribution from the violent spouse.
- A spouse (or other member of the family who is a victim of domestic violence or abuse) may sue the violent spouse for damages arising from an incident of domestic violence.
- In some Family Court property settlement cases, the Court has held that a spouse may be entitled to a greater share of the property due to domestic violence from the other violent spouse during the relationship. This is because contributions to the property of the marriage where domestic violence has occurred may be considered greater than when no domestic violence took place. The domestic violence may also have reduced the victim's income earning ability and therefore entitle them to a greater share of the existing property.
- Family violence is a factor taken into account by the Family Court when determining Parenting Orders and arrangements for the care of children following separation. This includes violence towards children and violence between parents in the presence of children. It also includes violence which has not taken place in the presence of children and of which they might not be aware.
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.