AVO Orders

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.

AVOs – THE BASICS

  1. There are two types of AVOs:
    • Apprehended personal violence order (APVO), and
    • Apprehended domestic violence order (ADVO).
  2. Whether you are subject to an APVO or an ADVO will depend on the nature of the relationship between you and the person in need of protection (PINOP).
  3. If you have been charged with a domestic violence offence (such as common assault or intimidation), it is likely that police will apply for an AVO. Police can also apply for an AVO if you have not been charged with a criminal offence.
  4. An AVO is not a criminal charge. It is an order for the PINOP’s future protection which imposes restrictions on your behaviour.
  5. 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:

  1. the PINOP has reasonable grounds to fear, and does fear, that you will either:
    • commit a personal violence offence against them, or
    • intimidate or stalk them
  2. it is necessary to make the APVO.

To make a final apprehended domestic violence order (ADVO), the court must be satisfied on the balance of probabilities that:

  1. you are or were in a domestic relationship with the PINOP
  2. the PINOP has reasonable grounds to fear, and does fear, that you will either:
    • commit a domestic violence offence against them, or
    • intimidate or stalk them
  3. it is necessary to make an ADVO.

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:

  • neighbours
  • work colleagues
  • friends

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:

  • common assault
  • assault occasioning actual bodily harm (AOABH)
    stalking
  • intimidation
  • indecent assault
  • sexual assault

What does intimidation mean?

Intimidation includes:

  • conduct which amounts to harassment
  • approaching someone and causing them to fear for their safety (the approach can be either physical or by telephone, text message, email etc), or
  • any other conduct which causes a person to fear that they, or someone else, will be injured, or property will be damaged.

What does stalking mean?

Stalking includes:

  • following a person, or
  • watching, approaching or being in the vicinity of a person’s house, business or workplace, or another location the person frequently attends.

What is a domestic relationship?

You have a domestic relationship with someone if:

  • you are or were married to the PINOP
  • you are or were in a de facto relationship with the PINOP
  • you have had an intimate personal relationship with the PINOP (whether sexual or not)
  • you live or have lived in the same house as the PINOP
  • you are or have been a relative of the PINOP
  • you and the PINOP have both been in a domestic relationship with the same person (e.g. your ex-husband’s new partner)

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.

What are some common AVO terms and what do they mean?

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:

  • common assault
  • assault occasioning actual bodily harm (AOABH)
  • stalking
  • intimidation
  • indecent assault
  • sexual assault

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:

  • you plead guilty, or are found guilty, of a domestic violence offence (unless the court is satisfied that an AVO is not required)
  • you consent to a final order being made
  • a provisional or interim AVO is in place and you fail to appear at court
  • an AVO hearing has taken place and the magistrate believes that a final order should be made.

Interim AVO

An interim AVO is also an AVO made by the court. An interim AVO remains in force until:

  • the court makes a final AVO, or
  • the AVO is withdrawn or dismissed.

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:

  • common assault
  • assault occasioning actual bodily harm (AOABH)
  • stalking
  • intimidation
  • indecent assault
  • sexual assault

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:

  • it is revoked
  • the court makes an interim AVO
  • the court makes a final AVO, or
  • the AVO is withdrawn or dismissed.

AVO CONDITIONS

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:

  • assault or threaten them
  • stalk, harass or intimidate them, or
  • intentionally destroy or damage any property that belongs to or is in their possession.

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

  1. You must not approach the protected person(s) or contact them in any way, unless that contact is through a lawyer.
  2. You must not approach:
    • the school or any other place the protected person(s) might go to for study
    • any place they might go to for childcare, or
    • any other place listed on the AVO.
  3. You must not approach or be in the company of the protected person(s) within at least 12 hours of drinking alcohol or taking illicit drugs.
  4. You must not try to find the protected person(s), except as ordered by a court.

Orders about family law and parenting

You must not approach or contact the protected person(s) in any way, unless contact is:

  1. through a lawyer
  2. to attend accredited or court-approved counselling, mediation and/or conciliation
  3. ordered by the court or another court about contact with the child/children
  4. as agreed in writing between you and the parent(s) about contact with the child/children, or
  5. as agreed in writing between you, the parent(s) and the person with parental responsibility for the child/children about contact with the child/children.

Orders about where you cannot go

You must not live at:

  • the same address as the protected person(s), or
  • any other place listed on the AVO.

You must not go into:

  • any place where the protected person(s) lives
  • any place where the protected person(s) works, or
  • any other place listed on the AVO.

You must not go within a certain distance of:

  • any place where the protected person(s) lives
  • any place where the protected person(s) works, or
  • any other place listed on the AVO.

Order about weapons

  • You must not possess any firearms or prohibited weapons.

Other orders

  • Any other order the court thinks necessary or appropriate.

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.

VARYING OR REVOKING AN AVO

  1. 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).
  2. It is important that you are aware of and understand the AVO conditions you are subject to.
  3. You can ask the court to vary the AVO conditions at any time, including after a final AVO has been made. You can also ask the court to revoke a final AVO.

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:

  • it is revoked
  • the court makes an interim AVO
  • the court makes a final AVO, or
  • the AVO is withdrawn or dismissed.

What is an interim AVO?

An interim AVO is an AVO made by the court. An interim AVO remains in force until:

  • the court makes a final AVO, or
  • the AVO is withdrawn or dismissed.

Who can make an application to vary provisional or interim AVO conditions?

The following persons can apply to vary provisional or interim AVO conditions:

  • the defendant
  • the protected person
  • the parents of the protected person, if the protected person is a child, or
  • a police officer.

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:

  • you plead guilty, or are found guilty, of a domestic violence offence (unless the court is satisfied that an AVO is not required)
  • you consent to a final order being made
  • a provisional or interim AVO is in place and you fail to appear at court, or
  • an AVO hearing has taken place and the magistrate believes that a final order should be made.

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:

  • the defendant
  • the protected person
  • the parents of the protected person, if the protected person is a child

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:

  • add additional conditions to the AVO, or
  • extend the length of the order.

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:

  • you plead guilty, or are found guilty, of a domestic violence offence (unless the court is satisfied that an AVO is not required):
  • you consent to the final order being made
  • a provisional or interim AVO is in place and you fail to appear at court, or
  • an AVO hearing has taken place and the magistrate believes that a final order should be made.

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:

  • the defendant
  • the protected person
  • the parents of the protected person, if the protected
  • person is a child

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.

DEFENDING AN AVO

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:

  • Apprehended personal violence order (APVO), and
  • Apprehended domestic violence order (ADVO).

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:

  1. the PINOP has reasonable grounds to fear, and does fear, that you will either:
    • commit a personal violence offence against them, or
    • intimidate or stalk them
  2. it is necessary to make the APVO.

To make a final apprehended domestic violence order (ADVO), the court must be satisfied on the balance of probabilities that:

  1. you are, or were, in a domestic relationship with the PINOP
  2. the PINOP has reasonable grounds to fear, and does fear, that you will either:
    • commit a domestic violence offence against them, or
    • intimidate or stalk them
  3. it is necessary to make an ADVO.

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:

  • their own written statement
  • any written statements of witnesses they intend to call evidence from at the AVO hearing, and
  • any other evidence on which they intend to rely (such as photographs, CCTV footage and medical records).

Once you have received this evidence, you then have 2 weeks to file your evidence. Again, this will include:

  • your own written statement
  • any written statements of witnesses you intend to call evidence from at the AVO hearing, and
  • any other evidence on which you intend to rely.

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:

  • the written evidence will form a witness’ evidence in chief at the AVO hearing
  • the witness 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 them after their written evidence was filed, and
  • the court may limit the amount of time a witness can give oral evidence at the AVO hearing.

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:

  • read and consider the written evidence each party filed in accordance with the timetable
  • allow witnesses to give additional evidence-in-chief, but only if it is about something that occurred or became known to them after their written evidence was filed and the court gives them permission
  • hear each witness be cross-examined by the other party (note that the court may limit the amount of time a witness can be cross-examined), and
  • hear submissions made by both parties.

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:

  1. the PINOP has reasonable grounds to fear, and does fear, that you will either:
    • commit a personal violence offence against them, or
    • intimidate or stalk them
  2. it is necessary to make the APVO.

To make a final Apprehended Domestic Violence Order (ADVO), the court must be satisfied on the balance of probabilities that:

  1. you are, or were in a domestic relationship with the PINOP
  2. the PINOP has reasonable grounds to fear, and does fear, that you will either:
    • commit a domestic violence offence against them, or
    • intimidate or stalk them
  3. it is necessary to make an ADVO.

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:

  • common assault
  • assault occasioning actual bodily harm (AOABH)
  • stalking
  • intimidation
  • indecent assault
  • sexual assault

What does intimidation mean?

Intimidation includes:

  • conduct which amounts to harassment
  • approaching someone and causing them to fear for their safety (the approach can be either physical or by telephone, text message, email etc), or
  • any other conduct which causes a person to fear that they, or someone else, will be injured, or property will be damaged.

What does stalking mean?

Stalking includes:

  • following a person, or
  • watching, approaching or being in the vicinity of a person’s house, business or workplace, or another location the person frequently attends.

What is a domestic relationship?

You have a domestic relationship with someone if:

  • you are, or were, married to the PINOP
  • you are, or were, in a de facto relationship with the PINOP
  • you have had an intimate personal relationship with the PINOP (whether sexual or not)
  • you live, or have lived, in the same house as the PINOP
  • you are, or have been, a relative of the PINOP
  • you and the PINOP have both been in a domestic relationship with the same person (e.g. your ex-husband’s new partner)

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.

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