An Apprehended Domestic Violence Order (ADVO) or Apprehended Personal Violence Order (APVO) (Apprehended Violence Order (AVO)) is a legally binding court order that prohibits certain actions of one person against another. This order can include prohibitions on contacting another person to physical actions such as assault, harassment, stalking and/or damage to property.
Difference Between ADVO and APVO
The primary difference between a Domestic and Personal Violence Order lies in the relationships between the parties involved.
- ADVO: Applies to parties in a domestic relationship, such as family members, partners, or housemates. From 25 November 2017, ADVOs operate on a national level.
- APVO: Applies to parties without a domestic relationship. An APVO needs to be registered in each state where the person in need of protection resides.
Grounds for Issuing an AVO
Under Section 15 for Domestic applications and Section 18 for Personal applications of the Crimes (Domestic and Personal Violence) Act 2007, the test for issuing an AVO is:
- Balance of Probabilities: The court must be satisfied that a person has reasonable grounds to fear, and in fact fears:
- Personal Violence Offence: The commission of a personal violence offence against them.
- Intimidation or Stalking: Intimidation or stalking by the other person, sufficient to warrant the making of the order.
- Sufficient to Warrant: The conduct in the opinion of the court, is sufficient to warrant the making of the order.
In the context of Apprehended Violence Orders (AVOs), the onus of proving the necessity for the order lies with the person or the police who are applying for an AVO. This means that:
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Applicant’s Responsibility: The applicant (either the protected person or the police) must demonstrate to the court that an AVO is necessary. They must provide sufficient evidence to show that there are reasonable grounds to fear violence, intimidation, harassment, or stalking by the defendant.
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Defendant’s Position: The defendant or respondent does not have to prove their innocence. Instead, when defending an AVO they can focus on challenging the evidence presented by the applicant and highlighting inconsistencies or inaccuracies.
Understanding the Standard of Proof
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Balance of Probabilities: The court will consider whether it is more likely than not that the applicant’s fears are reasonable and that the conduct alleged justifies the making of the AVO. This is a lower standard of proof compared to criminal cases, which requires proof beyond a reasonable doubt.
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Types of Evidence:
- Testimonies: Statements from the applicant and any witnesses.
- Documents: Emails, messages, medical reports, or other documents supporting the applicant’s claims.
- Physical Evidence: Photographs, CCTV footage, or other physical evidence demonstrating the alleged conduct.
What Does an AVO Prohibit?
An AVO may impose various restrictions on the defendant, such as:
- Prohibiting any contact or communication with the protected person.
- Restricting the defendant from approaching the protected person’s home or workplace.
- Banning certain behaviours that could be deemed as threatening or harassing.
Stages of an Apprehended Violence Order
Typically, there are four major stages of an AVO application:
1. Application
- Initiation: This is the first step where an application for an AVO is completed. Applications can be made by the police or through a private application via the courts.
- Enforceability: At this stage, the AVO remains an application only and is not legally enforceable once served on the responding party.
2. Provisional Order
- Serious Matters: If the situation is deemed serious enough, the application may immediately become a Provisional AVO.
- Enforceability: Once served on the respondent, the Provisional AVO is legally valid and binding until changed, revoked, or dismissed by the court.
3. Interim Order
- First Court Date: Following the first court date, a Provisional Order is automatically converted into an Interim Order, regardless of explicit court instructions.
- Duration: The Interim Order remains in force until it is revoked, dismissed, withdrawn, or superseded by a final court order.
4. Final Order
- Court Decision: The court issues a Final Order after considering all evidence and arguments.
- Enforceability: The Final Order is legally enforceable for a specified period, typically one to two years, depending on the specifics of the application.
Importance of Proper Legal Advice
Given the complex and serious nature of AVOs, it is crucial to seek expert legal advice:
- Guidance on Legal Procedures: Ensures proper handling of filling and filing forms, service of applications, and court representation.
- Protecting Rights: Helps navigate the legal process while protecting your rights and ensuring compliance with statutory requirements.
- Risk Mitigation: Avoids missteps that could result in the court refusing to hear the application or denying the desired changes. For example we will often encourage parties to take preventive steps before applying for an AVO, in an effort to resolve the matter. These steps make any future application stronger.
- Expert Representation: Lawyers with experience in AVO cases can effectively present the case, whether it involves varied, extending, or revoking of the order.
Applying for an AVO is not a trivial matter and can have legal consequences if the order is unwarranted in the eyes of the court. Whether you are seeking protection or contesting an order, enlisting the help of a
specialist AVO lawyer is essential to navigate the complexities and ensure the best possible outcome. Legal advice will help understand the full implications of AVOs and guide you through the process, from application to court hearings, mitigating potential negative impacts on your personal and professional life.
What does it mean to have an AVO?
Although an AVO is not a criminal conviction, it is an order of the court and has the potential to significantly impact your personal and professional life.
Consequences of Breaching an AVO
A breach or contravention of an AVO is a criminal charge and could have significant legal consequences. For more information on this, refer to the section on “Contravene AVO“.
Potential Consequences of an AVO
An AVO can lead to several serious consequences, including:
- Firearms Restrictions:
- Removal of firearms and the immediate suspension of any firearms licence.
- Inability to hold a firearms licence until 10 years past the expiry of the order.
- Permanent Record: The AVO will remain on the police database for life, whether it is granted or not.
- Employment Issues: Potential employment issues, especially in the security, policing, and child-related industries.
What needs to be proven in a Private initiated AVO?
Private initiated Apprehended Violence Orders are between two private parties.
The test for the making of such an order is that the court is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears:
- the commission by the other person of a personal violence offence against the person, or
- the engagement of the other person in conduct in which the other person:
- intimidates the person, or
- stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
Do I have to attend Mediation with the other party?
No Mediation Requirement for Domestic and Police-Initiated Applications
For applications involving Apprehended Domestic Violence Orders (ADVOs) or when the police have taken out the AVO on behalf of another party, there is generally no requirement for the parties to attend mediation. These orders are typically handled directly through the court system without a mediation step.
Mediation Requirement for Apprehended Personal Violence Orders (APVOs)
For Apprehended Personal Violence Order (APVO) applications, the court usually sends the parties to mediation unless there is a good reason not to do so. Mediation is intended to allow both parties to resolve their issues amicably without the need for a formal court hearing.
Considerations of the Court in APVOs
According to the Crimes (Domestic and Personal Violence) Act 2007, the court must carefully consider several factors when deciding whether to make an Apprehended Personal Violence Order (APVO). These factors ensure that the safety and protection of the person seeking the order and any children affected by the defendant’s conduct are prioritized.
Section 1: Safety and Protection
- Primary Consideration: The court must consider the safety and protection of the person seeking the order and any child directly or indirectly affected by the defendant’s conduct alleged in the application.
Section 2: Additional Considerations
Without limiting the primary consideration, the court must also consider the following:
(a) Residence Access:
- The effects and consequences on the safety and protection of the protected person and any children living at the residence if an order prohibiting or restricting access to the residence is not made.
(b) Hardship:
- Any hardship that may be caused by making or not making the order, particularly to the protected person and any children.
(c) Accommodation Needs:
- The accommodation needs of all relevant parties, especially the protected person and any children.
(d) Other Relevant Matters:
- Any other relevant matter that may impact the decision to make the APVO.
Section 3: Necessary Prohibitions and Restrictions
When making an APVO, the court must ensure the order imposes only those prohibitions and restrictions that are necessary for the safety and protection of:
- The protected person.
- Any child directly or indirectly affected by the defendant’s conduct.
- The protected person’s property.
Section 4: Reasons for Decisions
If the court decides not to include a prohibition or restriction on access to premises or places as sought in the application, it must provide reasons for that decision.
When deciding whether to issue an APVO, the court must prioritize the safety and protection of the applicant and any children affected. Additional considerations include the potential effects on residence access, possible hardships, accommodation needs, and other relevant factors. The court is also required to justify any decisions not to include specific prohibitions or restrictions.
What Orders form a part of an AVO?
Standard Orders
Not to assault, molest, harass, threaten or otherwise intimidate with the victim
Must not intimidate the victim
Must not stalk the Victim
Other Common Orders
Not to contact, approach or attempt to contact the victim
Not to attend or enter within a certain distance of a particular location including a school or child care that the child may attend or residence
Not to reside at a location
Not to approach the victim after drinking alcohol
Not to damage property
Restrictions or removal of access to firearms.
Can Children be included on Apprehended Violence Orders?
Children can be included in an AVO in two distinct ways:
- Named Protected Person: Children can be directly named as protected persons in the AVO.
- Resident at Same Location: Children can be included by virtue of residing at the same location as the person named in the AVO.
Impact on Family and Federal Court Proceedings
Consideration of Family Violence Allegations
If there are subsequent proceedings in the Family Court or the Federal Circuit and Family Court regarding divorce or custody arrangements for children, the court must take into account any allegations of family violence and be informed of any existing AVOs.
AVO Hearings with no associated charges
AVO hearings are fundamentally different from ‘normal’ criminal applications or charges. The primary distinction is that AVO proceedings follow civil litigation rules. This means:
- Affidavit Requirement: Both parties must serve all relevant materials in the form of affidavits on each other and the court before the hearing. This is to ensure that both sides are fully informed of the evidence and arguments that will be presented.
Importance of Early Legal Engagement
Given the procedural differences and the civil nature of AVO hearings, it is critical to engage a solicitor early in the process for several reasons:
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Proper Documentation: A solicitor can assist in the preparation and filing of all necessary affidavits and supporting documents. This ensures that your case is presented comprehensively and professionally.
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Strategic Planning: A lawyer can help develop a strategic plan for presenting or defending your case, including identifying key evidence and potential witnesses.
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Compliance with Rules: Legal representation ensures that you comply with all procedural rules and deadlines, which is crucial for the admissibility of your evidence and the overall success of your case.
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Effective Advocacy: A solicitor can provide effective advocacy during the hearing, ensuring that your interests are clearly and appropriately represented in court.
Engaging a solicitor early in the AVO process is essential to navigate the civil litigation aspects of the hearing and to ensure your case is robustly presented or defended. Legal professionals can help you prepare the necessary affidavit materials, comply with procedural requirements, and provide effective representation to support your interests.
Catron Simmons Lawyers can assist in this process, offering the expertise and support needed to effectively handle AVO hearings. This ensures that your rights are protected and your case is presented in the best possible light.
How long is an AVO for?
There is no specific time limit for an AVO; its duration depends on the period requested by the applicant and what the court deems necessary. The standard period for an AVO is two years from the date of the final order being made. This means an AVO can be set for a period of days, months, but more likely, years.
It is also important to remember that any AVO can be extended on application. The court will consider the circumstances and may extend the order if it finds it necessary to continue providing protection.
Consequences of an Apprehended Violence Order
While an AVO itself is not a criminal conviction, it carries significant ramifications, especially if breached:
- Firearms Restrictions: Immediate suspension and removal of any firearms licence, with a 10-year ban on obtaining a new licence post-expiry of the AVO.
- Employment Impacts: Restrictions on employment, particularly in roles involving:
- Security: A security licence may be cancelled, or an application for a security licence rejected, if an AVO is made against the defendant. The Commissioner of Police has the authority to deem whether the defendant is a “fit and proper person.”
- Policing
- Working with children
- Police Database: The AVO will remain on the police database for life, whether granted or not.
- Immigration and Visa Applications: Potential negative implications for visas or immigration applications.
- Disqualification from Jury Service
What are the different names for an Apprehended Violence Order?
AVO’s are often called different things in different states
- Australian Capital Territory – Family Violence Order (FVO) or a Personal Protection Order (PPO). A FVO may be granted for a period of up to two years and a PPO, for a period up to 12 months.
- Queensland – Apprehended Violence Order (AVO), Domestic Violence Order, Intervention Order, Restraining Order and Protection Orders.
- Victoria – Family Violence Intervention Order (FVIO)
- South Australia – Intervention Orders
- Western Australia – Violence Restraining Order (VRO)
- Tasmania – Police Family Violence Orders – (PFVO) AND Family Violence Orders (FVO)
- Northern Territory – Domestic Violence Order (DVO) and Apprehended Violence Orders (AVO)