Although being served with an AVO or Protection Order is not the same as being charged with a criminal offence, breaching an AVO can result in criminal charges being laid and, if you plead guilty or are found guilty of a breach, a conviction is likely to be recorded.
Our lawyers have decades of experience in responding to AVOs and Protection Orders.
Being the subject of an AVO may also result in serious hurdles or complications in obtaining or renewing certain licences including firearms licences or working with children checks. Orders can also sometimes be unduly restrictive in prohibiting contact between partners and/or children. When this occurs alongside family law proceedings, the results can be devastating. It is therefore important to take a strategic and considered approach as soon as an Order is served on you.
These matters can cause heightened emotions which means they require a nuanced and balanced approach and sensitivity to the situation. We will work to ensure the restrictions in the AVO or Protection Order impact your daily life as little as possible. In some cases a more aggressive approach and complete defence of a matter is called for. Either way, it is essential to have an experienced team of criminal defence lawyers in your corner.
To make a final apprehended personal violence order (APVO), the court must be satisfied on the balance of probabilities that:
To make a final apprehended domestic violence order (ADVO), the court must be satisfied on the balance of probabilities that:
AVO stands for Apprehended Violence Order. It is an umbrella term used to refer to both APVOs and ADVOs. An AVO is an order for someone’s future protection. It imposes restrictions on your behaviour.
APVO stands for Apprehended Personal Violence Order. This type of AVO will be sought if you are not or have not been in a domestic relationship with the PINOP.
Common examples include:
ADVO stands for Apprehended Domestic Violence Order. This type of AVO will be sought if you are or were in a domestic relationship with the PINOP.
What does balance of probabilities mean?
In simple terms, if the court is satisfied of something on the ‘balance of probabilities’, it means ‘more likely than not’. This is different to (and lower than) the standard of proof required in criminal cases, which is ‘beyond reasonable doubt’.
What is a personal violence offence?
A personal violence offence is an offence of violence. Common examples include:
What does intimidation mean?
Intimidation includes:
What does stalking mean?
Stalking includes:
What is a domestic relationship?
You have a domestic relationship with someone if:
What is a domestic violence offence?
A domestic violence offence is a personal violence offence committed against someone you are, or were, in a domestic relationship with.
This will depend on a number of factors. While an AVO is not a criminal charge, if you breach the conditions of an AVO you could be charged with contravening an AVO, which is a criminal offence. If you have concerns about the PINOP making a false allegation, you should carefully consider whether to consent to a final AVO.
You may be willing to agree to a final AVO on a with, or without, admissions basis. Agreeing without admissions is usually an approach taken if you do not accept some or all the allegations made in the grounds of the AVO, but do not wish to go to a hearing.
You may also agree to a final AVO, but not to all of the conditions being sought. In these circumstances, your lawyer may be able to negotiate with the prosecutor to delete or vary some of the conditions.
If I do not consent to a final AVO, does it remain in force until the final AVO hearing?
Normally, yes. If you do not consent to a final AVO and do not want to consent to an interim AVO, your matter will be listed for an interim hearing. At an interim hearing the court will hear evidence and determine whether it is necessary or appropriate in the circumstances to make an interim AVO. If an interim AVO is made, it remains in force until the final AVO hearing.
If I plead guilty or am found guilty of a domestic violence offence, do I have to agree to an AVO?
If you plead guilty or are found guilty of a domestic violence offence, the court must make a final AVO, unless it is satisfied that an AVO is not required (if, for example, a final AVO has already been made).
If I successfully defend an AVO, could I be awarded costs?
It is generally very difficult to have costs awarded in AVO proceedings, especially if the applicant was a police officer. You should ask your lawyer whether you can apply for costs before court, because any costs application must be made at the end of the AVO hearing.
Applicant
The applicant is the person who applied for the AVO. This will usually be a police officer (in the case of a police AVO) or the PINOP (in the case of a personal AVO).
AVO
AVO stands for Apprehended Violence Order. This is an umbrella term used to refer to both APVOs and ADVOs.
An AVO is an order for someone’s future protection. It imposes restrictions on your behaviour.
ADVO
ADVO stands for Apprehended Domestic Violence Order. This type of AVO will be sought if you are or were in a domestic relationship with the PINOP.
APVO
APVO stands for Apprehended Personal Violence Order. This type of AVO will be sought if you are not or have not been in a domestic relationship with the PINOP.
Complainant
The person who made a complaint to police. Often also referred to as the alleged victim.
Defendant
The person against whom an AVO is sought. If a criminal charge(s) has also been laid, the defendant is often referred to as the accused.
Domestic violence offence
A domestic violence offence is an offence committed against someone you are, or were, in a domestic relationship with. Common examples include:
DVEC
DVEC stands for Domestic Violence Evidence in Chief.
This is the recorded statement taken from complainants of domestic violence. The recording becomes their evidence in chief (their version) during a court hearing.
DVLO
DVLO stands for Domestic Violence Liaison Officer. This is a specialised police officer who provides advice to police in domestic violence cases and assists PINOPs through the court process.
ERISP
ERISP stands for Electronically Recorded Interview of a Suspected Person. This is the disc which contains the recording of your interview with police.
Final AVO
A final AVO is an AVO made by the court. It remains in force for as long as the court orders. Normally, this is 12 months or 2 years. A final AVO will be made if:
Interim AVO
An interim AVO is also an AVO made by the court. An interim AVO remains in force until:
Mini brief
When a person is charged with a domestic violence offence, the prosecution is required to serve a ‘mini brief’ of evidence on them on the first mention date. The mini brief will usually contain the police facts, the complainant’s statement (or DVEC) and any photographs on which the prosecution intends to rely.
OIC
OIC stands for Officer In Charge. This refers to the police officer who is in charge of your case.
PINOP
PINOP stands for Person In Need Of Protection – the person for whose protection the AVO is sought.
Personal violence offence
A personal violence offence is an offence of violence. Common examples include:
Provisional AVO
A provisional AVO is an AVO granted by the police or court in response to an urgent application by police. A provisional AVO remains in force until:
An AVO is not a criminal charge. It is an order for the PINOP’s future protection which imposes restrictions on your behaviour.
If you breach the conditions of an AVO you could be charged with contravening an AVO, which is a criminal offence. The maximum penalty is 2 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500).
The AVO must include the following condition:
Orders about behaviour
You must not do any of the following to the protected person(s), or anyone they have a domestic relationship with:
What additional conditions might also be attached to an AVO?
The AVO may also include some or all of the following conditions:
Orders about contact
Orders about family law and parenting
You must not approach or contact the protected person(s) in any way, unless contact is:
Orders about where you cannot go
You must not live at:
You must not go into:
You must not go within a certain distance of:
Order about weapons
Other orders
This will depend on a number of factors. While an AVO is not a criminal charge, if you breach the conditions of an AVO you could be charged with contravening an AVO, which is a criminal offence. If you have concerns about the PINOP making a false allegation, you should carefully consider whether to consent to a final AVO.
You may be willing to agree to a final AVO on a with, or without, admissions basis. Agreeing without admissions is usually an approach taken if you do not accept some or all the allegations made in the grounds of the AVO, but do not wish to go to a hearing.
You may also agree to a final AVO, but not to all of the conditions being sought. In these circumstances, your lawyer may be able to negotiate with the prosecutor to delete or vary some of the conditions.
If I do not consent to a final AVO, does an interim or provisional AVO remain in force until the final AVO hearing?
Normally, yes. If you do not consent to a final AVO and do not want to consent to an interim AVO, your matter will be listed for an interim hearing. At an interim hearing the court will hear evidence and determine whether it is necessary or appropriate in the circumstances to make an interim AVO. If an interim AVO is made, it remains in force until the final AVO hearing.
What is a provisional AVO?
A provisional AVO is an AVO granted by the police or court in response to an urgent application by police. A provisional AVO remains in force until:
What is an interim AVO?
An interim AVO is an AVO made by the court. An interim AVO remains in force until:
Who can make an application to vary provisional or interim AVO conditions?
The following persons can apply to vary provisional or interim AVO conditions:
How do I vary provisional or interim AVO conditions?
If you would like to vary the conditions attached to either a provisional or interim AVO, you or your lawyer should first check whether the police and/or the PINOP consent (agree) to the proposed variation. If the variation is by consent, it will normally be made by the magistrate when your matter is next listed at court.
If the police and/or PINOP do not agree to the proposed variation, you should file a form called Application to Vary or Revoke Apprehended Violence Order, which can be found of the NSW Local Court website. A copy of this application must be sent to the police and/or the PINOP (if the AVO was not initiated by police).
Your matter will then be set down for an interim AVO hearing, where the court hears evidence from the parties in relation to the nature of the variation sought, the reasons for the application and the views of the police and/or PINOP.
If the court is satisfied that it is appropriate to vary the AVO, the condition(s) will be varied. If the court is not satisfied that the AVO should be varied, the application will be refused and the conditions will remain the same.
What is a final AVO?
A final AVO is an AVO made by the court. It remains in force for as long as the court orders. Normally, this is 12 months or 2 years. A final AVO will be made if:
Who can make an application to vary a final AVO?
A police officer, or an interested party, can apply to the court for the variation of a final AVO.
If the variation concerns a child, then an interested party must seek leave to make the application.
Interested parties may include:
How do I vary conditions attached to a final AVO?
You should file a form called Application to Vary or Revoke Apprehended Violence Order, which can be found of the NSW Local Court website. A copy of this application must be sent to the police and/or the protected person (if the AVO was not initiated by police).
Assuming the application is opposed, the matter will then be set down for a hearing, where the court hears evidence from the parties in relation to the nature of the variation sought, the reasons for the application and the views of the police and/or protected person.
If the court is satisfied that it is appropriate to vary the AVO, the condition(s) will be varied. If the court is not satisfied that the AVO should be varied, the application will be refused and the conditions will remain the same.
What other variations can be made?
As well as seeking to delete or vary some of the conditions, the protected person, a police officer, or the parents of the protected person (if the protected person is a child) can also ask the court to:
What is a final AVO?
A final AVO is an AVO made by the court. It remains in force for as long as the court orders. Normally, this is 12 months or 2 years. A final AVO will be made if:
Who can apply to revoke a final AVO?
A police officer, or an interested party, can apply to the court for the revocation of a final AVO.
If the order concerns a child, then an interested party must seek leave to make the application. Interested parties may include:
How do I make an application to revoke a final AVO?
You should file a form called Application to Vary or Revoke Apprehended Violence Order, which can be found of the NSW Local Court website. A copy of this application must be sent to the police and/or the protected person (if the AVO was not initiated by police).
Assuming the application is opposed, the matter will then be set down for a hearing, where the court hears evidence from both parties in relation to the reason(s) revocation is being sought and the views of the police and/or protected person.
If the court is satisfied that it is appropriate to do so, the AVO will be revoked. If the court is not satisfied that the AVO should be revoked, the application will be refused and the AVO will remain in place.
If I pleaded guilty or was found guilty of a domestic violence offence, can I still ask the court to change the AVO conditions?
Yes. Even though on a plea of guilty or a founding of guilt for a domestic violence offence the court must generally make a final AVO, you can still apply to have the conditions changed and/or have the AVO revoked.
If you have been charged with a domestic violence offence (such as common assault or intimidation), it is likely that police will also apply for an AVO. This AVO will run alongside the criminal charge(s). If you plead not guilty to the criminal charge(s), your matter will be listed for hearing. The court will decide whether to make a final AVO at the end of that hearing.
Even if you have not been charged with a criminal offence, police can apply for a stand-alone AVO. If this is the case, and you do not agree to a final AVO being made, you can defend the AVO.
These pages outlines what the court will consider when deciding whether to make a final AVO (whether or not you have also been charged with a criminal offence). It also outlines the process involved in defending a stand-alone AVO.
There are two types of AVOs:
Stand-alone AVOs are dealt with in accordance with Local Court Practice Note No 2 of 2012, which can be found on the NSW Local Court website. It is important that you understand the process, as there are strict rules to follow.
If you breach the conditions of an AVO you could be charged with contravening an AVO, which is a criminal offence. The maximum penalty is 2 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500).
To make a final apprehended personal violence order (APVO), the court must be satisfied on the balance of probabilities that:
To make a final apprehended domestic violence order (ADVO), the court must be satisfied on the balance of probabilities that:
Stand-alone AVO hearings – the process
If you tell the court that you do not agree to a final AVO being made, the court will firstly set a timetable, directing both parties to exchange the evidence on which they intend to rely on at the AVO hearing.
After the evidence has been exchanged, there will be a compliance mention to make sure that both parties have exchanged their evidence.
At this compliance mention, the matter will be listed for an AVO hearing.
The timetable
Ordinarily, the applicant will have 2 weeks to file and serve:
Once you have received this evidence, you then have 2 weeks to file your evidence. Again, this will include:
It is very important that you file and serve all the evidence on which you intend to rely at the AVO hearing in accordance with the timetable because:
Compliance mention
Approximately 1 week later there will be a compliance mention to make sure that both parties have exchanged their evidence.
If you have not served your evidence and/or you do not attend the compliance mention, a final AVO might be made in your absence.
If both parties have exchanged their evidence, and you still do not agree to a final AVO being made, the matter will be listed for an AVO hearing.
AVO hearing
At the AVO hearing, the magistrate will:
At the end of the AVO hearing, the court will decide whether to make a final AVO.
To make a final Apprehended Personal Violence Order (APVO), the court must be satisfied on the balance of probabilities that:
To make a final Apprehended Domestic Violence Order (ADVO), the court must be satisfied on the balance of probabilities that:
What does balance of probabilities mean?
In simple terms, if the court is satisfied of something on the ‘balance of probabilities’, it means ‘more likely than not’. This is different to (and lower than) the standard of proof required in criminal cases, which is ‘beyond reasonable doubt’.
What is a personal violence offence?
A personal violence offence is an offence of violence. Common examples include:
What does intimidation mean?
Intimidation includes:
What does stalking mean?
Stalking includes:
What is a domestic relationship?
You have a domestic relationship with someone if:
What is a domestic violence offence?
A domestic violence offence is a personal violence offence committed against someone you are, or were, in a domestic relationship with.
What happens if I do not serve my evidence?
If you have not filed and served your evidence in accordance with the timetable set by the magistrate, you should attend the compliance mention and explain to the magistrate why you have not done so. You should ask for a further adjournment to obtain your evidence. It is possible that the magistrate may not grant this adjournment and may make a final AVO. You should speak to a lawyer without delay.
What if I want to give further oral evidence at the hearing?
You will only be permitted to give additional evidence-in-chief with the court’s permission, and only if it is about something that occurred or became known to you after your written evidence was filed and served.
If I successfully defend an AVO, could I be awarded costs?
It is generally very difficult to have costs awarded in AVO proceedings, especially if the applicant was a police officer. You should ask your lawyer whether you can apply for costs before court, because any costs application must be made at the end of the AVO hearing.
If police allege that you contravened an AVO, they must prove that:
What is an AVO?
AVO stands for Apprehended Violence Order. It is an umbrella term used to refer to both APVOs and ADVOs. An AVO is an order for someone’s future protection. It imposes restrictions on your behaviour.
What is an APVO?
APVO stands for Apprehended Personal Violence Order. This type of AVO will be sought if you are not or have not been in a domestic relationship with the PINOP. Common examples include:
What is an ADVO?
ADVO stands for Apprehended Domestic Violence Order. This type of AVO will be sought if you are or were in a domestic relationship with the PINOP.
What is a domestic relationship?
You have a domestic relationship with someone if:
What can amount to breaching a condition of an AVO?
An AVO imposes restrictions on your behaviour. If you knowingly do something which you are prohibited from doing, you will have breached the AVO. Common examples include:
Whether the above actions will amount to breaching an AVO will depend on the conditions of the AVO you are subject to.
How does the court determine whether I knew a particular condition was in place?
If you were served with a copy of the AVO, or were in court when the AVO was made, you are assumed to be aware of the conditions. This is the case even if you did not read the paperwork.
What are the possible defences?
Should I plead guilty or not guilty?
This will depend on a number of factors, including whether you knew that the AVO was in place.
You may accept that you breached the AVO but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
If I plead guilty or am found guilty, will a conviction be recorded?
It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded, or to advise you if a conviction is recorded.
Will I go to jail for contravening an AVO?
The maximum penalty for contravening an AVO is 2 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
The courts treat contravening an AVO very seriously. Especially if you breach the AVO with an act of violence, it is possible that you will go to jail.
If the court sentences you to an intensive correction order, community correction order or conditional release order, it is likely that the order will include a supervision condition.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail.
What will the court take into account when sentencing?
The court will take into account the nature and seriousness of the breach and the surrounding circumstances. For example, if you breach an AVO with an act of violence, this will be seen as more serious than a non-violent breach. The court will also take into account many other factors including your personal circumstances and criminal history.
I have been charged with breaching an AVO because I was talking to the PINOP, but I was only speaking to her because she called me. Am I still guilty?
Yes. An AVO only imposes restrictions on your behaviour, not the behaviour of the PINOP. This means that even if the PINOP contacts you, if you engage in communication with them, you are breaching the AVO and could be charged with a criminal offence.
If police allege that you stalked or intimidated someone, they must prove that you:
What does stalking mean?
Stalking includes:
What does intimidation mean?
Intimidation includes:
How does the court determine whether I intended to make the complainant fear physical or mental harm?
This is a question for the magistrate or jury, who would consider all of the surrounding circumstances including what you did and said.
What are the possible defences?
Should I plead guilty or not guilty?
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you stalked or intimidated the complainant.
If you accept that you acted in the way alleged, your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as common assault.
Alternatively, you may accept that you stalked or intimidated the complainant but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
If I plead guilty or am found guilty, will a conviction be recorded?
It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded, or to advise you if a conviction is recorded.
Will I go to jail for stalking or intimidation?
It is possible that you will go to jail. The maximum penalty for stalking or intimidation is 5 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail.
What will the court take into account when sentencing?
The court will take into account the nature and seriousness of the offending behaviour and the surrounding circumstances. For example, intimidatory behaviour which occurs over a long period of time will usually be seen as more serious than one-off offending. The court will also take into account many other factors including your personal circumstances and criminal history.
If police allege that you made a false or misleading application for an APVO, they must prove that:
What is a statement?
A statement is an assertion. A statement can be made orally, in a document, or in any other way.
What is an APVO?
APVO stands for Apprehended Personal Violence Order. This type of AVO will be sought if you are not, or have not, been in a domestic relationship with the PINOP. Common examples include:
What are the possible defences?
Should I plead guilty or not guilty?
This will depend on a number of factors, including whether you agree that you knowingly made a false or misleading statement.
You may accept that you committed the offence but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
If I plead guilty or am found guilty, will a conviction be recorded?
It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
What does it mean to have a conviction recorded?
A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.
It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded, or to advise you if a conviction is recorded.
Will I go to jail for making a false or misleading application for an APVO?
It is possible that you will go to jail. The maximum penalty for making a false or misleading application for an APVO is 12 months imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
What will the court take into account when sentencing?
The court will take into account the nature and seriousness of the false or misleading statement and the surrounding circumstances of you making the statement. The court will also take into account many other factors including your personal circumstances and criminal history.
If you have been charged with use carriage service to menace, harass or offend, police must prove that:
What does ‘using a carriage service’ mean?
Generally, you use a carriage service when you engage in communication through the use of technology. For example phone calls, text messages, post messages on social media and emails are forms of communication which require the use of a carriage service.
What does ‘menace’ mean?
Menace is defined under the Act to include a direct or general threat, expressed or implied of detrimental or unpleasant conduct to the victim which would cause a reasonable person to act unwillingly.
What does ‘harass’ mean?
Harass includes spamming or contacting the victim during inappropriate hours of the day or night in order to intimidate them.
What does ‘offend’ mean?
Offend includes conduct that is generally defined as cyberbullying. For example, posting a status or photograph on social media that identifies and targets the complainant and is derogatory and insulting in nature.
What are the possible defences?
Should I plead guilty or not guilty?
This will depend on a number of factors, including whether you accept that you used a carriage service to menace, harass or offend.
You may accept the alleged conduct but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.
If I plead guilty or am found guilty, will a conviction be recorded?
It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.
Will I go to jail for using a carriage service to menace, harass or offend?
It is possible that you will go to jail. The maximum penalty for this offence is 3 years imprisonment. However if the matter is dealt with in the Local Court the maximum penalty is 12 months imprisonment. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
A Family Violence Order is a court order that prevents someone from engaging in, or getting others to engage in on their behalf, family violence towards another family member.
The object and purpose of Family Violence Orders are to prevent and reduce family violence, to ensure the safety and protection of people (including children) who fear, experience or witness family violence, and to encourage perpetrators of family violence to be accountable for their conduct. These objects are contained in the Family Violence Act 2016 (ACT) [the “Act”] at section 6.
Family Violence is defined in the Act. It is not just physical violence. It has a broad definition that encapsulates a number of different things including any of the following:
A person can apply for a Family Violence Order if they have been affected by family violence by the person whom they are seeking to take out an order against.
A person can also apply to have their child, or children, added to the order. However, if the children are over the age of 18, they are required to make an application for their own order.
A person can only apply for a Family Violence Order if the person they are seeking to take the order out against is a family member. The Act defines a family member as:
An application for a protection order against someone who is not a family member is called a Personal Protection Order or, if occurring at work, a Workplace Protection Order.
A person will need to complete an application and file it at the ACT Magistrates Court Registry. A person applying for an order will need to fill out the following forms:
These forms can be downloaded from the ACT Magistrates Court website.
Once the relevant forms have been filed with the Registry, a copy of the application will be served on the Respondent (the person whom the order is against) by Police. The application will then be listed for a Registrar’s Conference where the parties will be given an opportunity to discuss their options with a Registrar and ascertain whether there is any way for the matter to resolve by consent.
If you are served with an application for a Family Violence Order you should seek legal advice immediately.
It is very important to understand whether you have also been served with an Interim Order. That is, an Order with a number of conditions which may prevent you from acting, communicating or seeing the Applicant. It is important that you read these conditions carefully as, any breaches can amount to a criminal offence, and will be dealt with in the criminal jurisdiction of the ACT Magistrates Court.
It is also important to understand what upcoming court dates you are required to attend and what will happen on each of those dates.
If you fail to attend a court date, after you have been served with a copy of the Order, a Final Order may be made in your absence and you will not have an opportunity to contest the application.
Once an application is filed in court, the application will go before a Registrar or Magistrate in the ACT Magistrates Court. It is common for a person to engage a legal representative and have a lawyer appear for, and with, them at an Interim hearing. An Interim hearing is carried out ex parte, this means that the Respondent, the person whom someone is seeking to take out an order against, is not present before the court and should not initially be aware of the application at the time it is being made.
When the Applicant is in court, the Registrar or Magistrate will then determine whether it is appropriate for an Interim Order to be made. An interim Order is a temporary order that remains in place for the duration of the proceedings, until a decision is made about whether or not to make a Final Order.
The Registrar will read a copy of the Applicant’s application, and the reasons why a person says they need a family violence order. It is also common for a person to give oral evidence in the witness box about why they are seeking certain conditions or prohibitions on an order.
After reading the application, and hearing any oral evidence, the Registrar will then determine whether it is appropriate for an Interim Order to be made.
If the Registrar has determined that it is appropriate for an Interim Order to be made, the police will then locate the Respondent and personally serve a copy of the application and Interim Order (if made) on them.
If an Interim Order is made, it will be in place until it is determined whether it is appropriate to make a Final Order.
It is very important to note that a breach of an Interim Order is a criminal offence. Any breaches can be reported to police and a Respondent may be charged, just as if it were alleged that they had breached a final Order.
Once a person has lodged their application for an FVO, and appeared at an Interim hearing, the Registrar will adjourn the matter for a Registrar’s Conference.
A Registrar’s Conference is an informal meeting at the ACT Magistrates Court. An applicant will appear in a conference room with a Registrar. A Respondent is also required to attend, and will appear in a different conference room or area at the other end of the courthouse. It is organised with a view to ensuring that Applicants and Respondents do not interact, or see one another.
The purpose of a Registrar’s Conference is to see whether the application can resolve by agreement. At the Conference, a Registrar can only make orders if they are by the consent of both the Applicant and Respondent. There are a number of things that can be considered at a Conference. Including:
IMPORTANT: If a Final Order is entered into by the consent of the Respondent it can only be made for a maximum period of 2 years (section 35 the Act).
IMPORTANT: The duration of a Final Order only starts to commence on the date of the Final Order being made. For example, if a Respondent is served with an Interim Order on 1 January 2000 and the Respondent consents to a Final Order, for a period of 2 years, at a Registrar’s Conference on 1 June 2000 the date of commencement is 1 June 2000, not 1 January 2000.
IMPORTANT: It is important to note that if a Respondent is considering consenting to a Final Order, or entering into Undertakings, this can be on a ‘without admissions’ basis. This means that the Respondent is not agreeing or accepting any of the allegations or contents of the application as being truthful. It simply means that they are willing to consent to a Final Order, or Undertakings.
If there is no agreement by the Applicant and Respondent then the matter will be adjourned by the Registrar for a Pre-Hearing mention. The Pre-Hearing mention will generally be about 8 weeks after the Registrar’s Conference.
Undertakings are an informal document where a Respondent makes a promise to the other party to comply with the conditions included in the Undertakings. A copy of the Undertakings are placed in the court file. Undertakings are not legally enforceable, and any alleged breach of undertakings is not a criminal offence. The police do not have any powers to enforce any alleged breaches of undertakings.
If a person fails to comply with undertakings, after they have been placed on the court file, an applicant will need to begin the process of applying for a Family Violence Order again. However, any new application can rely on evidence of an alleged breach of undertakings to strengthen their application for a new FVO.
A Pre-Hearing mention is when both parties (the Applicant and Respondent) are required to attend the Magistrates Court before the Registrar. Both parties, and their legal representatives (if they are represented), appear in court before the Registrar.
At that time, the Registrar will ask the Applicant and Respondent whether the application is still proceeding, and whether the application remains opposed by the Respondent. If the application is still contested, then the Registrar will list the application for a Final Hearing. This final hearing will be before a Magistrate.
The Registrar will also ask the parties how many witnesses they each intend to call, and provide an estimate of how long the hearing is expected to take (e.g. 2 hours or 1 day).
At the Pre-Hearing mention, the parties will also receive a document that details a number of ‘Directions’. These Directions often include a timetable for the filing and service of various documents that both the Applicant and Respondent intend to rely on as evidence at hearing. Documents include things such as:
If parties have not been able to reach an agreement throughout the course of the proceedings, the matter will proceed to a ‘Final Hearing’ before a Magistrate.
At a final hearing, the parties are required to attend in person, with all evidence they intend to rely on. This includes any witnesses that are expected to give evidence.
The Magistrate will likely have before them a copy of the application, filed by the Applicant, and any evidence filed by both the Applicant and Respondent such as the completed timelines.
Usually, the Applicant will then be required to give oral evidence in the witness box. This evidence is generally focussed on why the Applicant feels the need for a Final Order.
The Respondent will then get an opportunity to cross-examine the Applicant. If the Respondent is self-represented they are not permitted to cross-examine an Applicant personally. A Deputy Registrar is generally appointed and they are provided a list of questions by the Respondent, who the Deputy Registrar, then in turn asks the Applicant.
If the Respondent is legally represented, the Respondent’s lawyer can ask the Applicant questions in cross-examination.
After the Applicant has given their evidence, including calling any other witnesses in support of their Application, the Respondent is then called to give evidence (should they choose).
After the Respondent, and any witnesses for the Respondent, have given their evidence, the parties are then given an opportunity to make submissions in support of why, or why not, a Final Order should be made.
A Magistrate is required to consider a number of things in deciding whether it is appropriate to make a Final Order, they are contained in section 14 of the Act. Those things include:
A Magistrate then may make a Final Order if they are satisfied that either:
A Final Order can be made for a maximum period of 24months/2 years. However, if the court is satisfied that there are special or exceptional circumstances that justify a longer period, the court can make a Final Order for a longer period.
It is, however, important to note that if a Final Order is consented to by a Respondent it can only be made for a maximum period of 24 months/2 years.
What happens if you go to court and the other party does not appear? The Court has the power to adjourn, dismiss, or make Final Orders. It depends on a number of things as to what happens. Some possible outcomes are as follows:
Failure to appear by Applicant (section 53)
If an Applicant in an application for a Final Order is not before the court when the application is listed, the Court must do one (1) of the following:
Failure to appear by Respondent (section 54)
If a Respondent to an application is not before the court, the Court must do one (1) of the following:
It is important to note that this section does not apply if a Respondent has not been served with a copy of an application for an order. From time to time, the police may have difficulty serving a copy of the application before the first return date for the application. In those circumstances, the court will adjourn the return of the application to a future date in the hope that a Respondent will be served in the near future.
Failure to appear by both Applicant and Respondent (s 54A)
If neither the Applicant or Respondent appear when an application is before the court, whether it be a Registrar’s Conference, Pre-Hearing mention, or Final Hearing, the Court may order that the application for an Order be dismissed.
Applications for Family Violence Orders are dealt with in the civil jurisdiction of the Magistrates Court. However, it is very important to note that breaches of both Interim and Final Orders are criminal offences and are dealt with in the criminal jurisdiction.
An offence of breaching a Family Violence Order is contained at section 43 of the Family Violence Act – ‘Contravention of Family Violence Order’ and it carries a maximum penalty of 500 penalty units, 5 years imprisonment, or both.
Final Family Violence Orders are recognised across all states and territories in Australia. This also applies to similar Orders in other jurisdictions. For example, Apprehended Domestic Violence Orders (AVOs) in NSW are legally enforceable in the ACT. This means that breaches, or contraventions, of a Family Violence Order can be criminally prosecuted in any jurisdiction in Australia.
A Protected Person can apply to extend a Final Order when the Order is due to expire. The Protected Person is required to file an application with the ACT Magistrates Court and must provide details of the basis of the extension application. Similar to the initial application process, the Protected Person and Respondent are afforded the opportunity to attempt to resolve the application, by consent, through a Registrar’s Conference. If there is no agreement between the parties, the application proceeds through the same process (as detailed above) to contest the extension of the order.
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