Apprehended violence orders in NSW
Applying for an AVO
You can ask the court for an order yourself, or police can apply for you. Which route you are on changes almost everything that follows: who runs the case, who pays for it, whether it can be withdrawn, and how much protection you get before the first court date.
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If you are in immediate danger, call 000. Police can put an order in place the same night.
The two routes
Police application or private application
Police apply on your behalf
The police prosecutor runs the case. You do not pay legal costs, you do not have to file anything, and police can put a provisional order in place immediately. You also lose control of it: you cannot withdraw a police application, and police will often press on even where you no longer want the order.
You apply yourself
You control the application, the conditions sought and whether it continues. You also carry the running of it. For personal violence matters the registry can decline to issue the application at all, and the court will usually send you to mediation before it lists a hearing.
What police are and are not obliged to do
Police must make an application where the investigating officer suspects or believes that a domestic violence offence, stalking or intimidation with intent to cause fear, or an offence involving abuse of a child has recently been or is being committed, is imminent, or is likely to be committed. That obligation is real, but it is heavily qualified.
No application is required where the person to be protected is 16 or over and the officer believes either that there is good reason not to make one, or that the person intends to make the application themselves. The second of those is why being told to take out a private order is so common. If the officer relies on good reason, the reason has to be recorded in writing, and reluctance on the part of the person to be protected is not on its own a good reason where the officer reasonably believes there has been violence or a significant threat of it.
So the practical position is that police may apply, often do, and sometimes should but will not. If you have reported an incident and nothing has been filed, ask why, ask in writing, and be ready to apply yourself.
An application can be made by the person seeking protection, by their guardian, or by a police officer. Where every person to be protected is a child, only police can apply.
Immediate protection
Getting protection before the first court date
- Provisional orders. Police can obtain one over the phone, at any hour. It binds the defendant as soon as it is served and is enforceable straight away, and a breach carries the same penalty as a breach of a final order.
- Urgent interim orders on a private application. Where the registrar is satisfied the circumstances are urgent, a private application can be listed before the court before it has been served, and the court can make an interim order in the defendant’s absence.
- Interim orders on the first return date. An interim order can be made whether or not the defendant is there, and whether or not they have been given notice.
- Where charges are laid. If the defendant is charged with a serious offence, the court must make an interim order protecting the alleged victim unless satisfied one is not required.
An interim order runs until it is revoked, until a final order is made and served, or until the application is withdrawn or dismissed. It gives you the same protection in the meantime as a final order would.
The test
What you have to satisfy the court of
The onus is on you, or on police, on the balance of probabilities. The court must be satisfied that you have reasonable grounds to fear, and in fact fear, either the commission of a personal violence offence against you, or intimidation or stalking, and that the conduct is sufficient to warrant an order being made.
- There are two limbs to the fear question. You must actually hold the fear, and the fear must be reasonable. An application can fail on either.
- Sufficient to warrant is a separate hurdle again. Even genuine, reasonable fear does not automatically produce an order. The court must think the conduct justifies one.
- Actual violence is not required. Intimidation is defined broadly and extends to conduct involving no violence at all, including threatened damage to property and conduct causing a reasonable apprehension of harm to an animal belonging to you or to someone you have a domestic relationship with.
- Fear need not be proved in some cases. Where the protected person is a child, or has an appreciably below average general intelligence function, the court does not need to be satisfied that they in fact fear the defendant.
For personal violence matters the court weighs additional considerations, including hardship to either party, the accommodation needs of everyone involved, and the effect on any children, before deciding whether to make the order and what conditions it should contain.
Process
Making a private application
Go to a Local Court registry
You complete an application notice setting out who you want protected, who the order is against, the conduct you rely on and the conditions you are asking for. Registry staff can help you complete the form but cannot advise you on your case.
The registrar decides whether to issue it
For personal violence applications, the registrar can refuse to issue process where the application is frivolous, vexatious, without substance, has no reasonable prospect of success, or would be better dealt with by mediation. Reasons must be recorded in writing. That filter does not apply to domestic violence applications or to police applications.
Service
The application has to be served personally, and only a police officer or a person nominated by the court can serve it. Where the defendant is avoiding service, the court can order that it be served another way.
First mention
The defendant can consent without admitting anything, in which case the order is made that day, or oppose it, in which case the court sets a timetable and lists the matter. If the defendant has been served and does not appear, a final order can be made in their absence.
Mediation, for personal violence matters
Personal violence applications are referred to a Community Justice Centre unless the court is satisfied there is good reason not to. Reasons include a history of physical violence, conduct amounting to a personal violence offence, harassment on certain grounds, or a previous failed attempt at mediation. Domestic violence and police applications are not referred.
Statements, then hearing
Where the order is opposed, both sides serve written statements of their witnesses to a timetable, and the matter comes back for a compliance mention before a hearing date is allocated. At the hearing those statements stand as the evidence in chief and witnesses are cross-examined on them.
Where an interim order is in place, it protects you throughout this process.
Evidence
What to gather before you file
Applications are decided on evidence, not on the strength of feeling behind them. The material that carries weight is contemporaneous and specific.
- Messages and call records. Screenshots with dates and numbers visible, kept in full rather than edited to the worst lines.
- A written chronology. Dates, places, what was said or done, who else was there. Written close to the events if possible.
- Photographs. Of injuries, damaged property, or the location, with the date they were taken.
- Medical and counselling records. Even a brief attendance note establishes that you reported something at the time.
- Police event numbers. Every report you have made, whether or not anything came of it.
- Witnesses. Anyone who saw or heard an incident, or saw the state you were in afterwards.
Statements, not affidavits
Evidence at an AVO hearing is given by written statement to a court timetable, not by affidavit, and unless the court gives leave no further evidence in chief can be added at the hearing. What is in the statement is the case. That is the single most common reason a well-founded application struggles: the statement was written in a hurry and left out the detail the magistrate needed.
Conditions
Asking for the right conditions
Every order carries three conditions automatically: not to assault, threaten, stalk, harass or intimidate you; not to intentionally or recklessly destroy or damage your property; and not to intentionally or recklessly harm an animal belonging to or in the possession of you or someone you have a domestic relationship with. Anything beyond that has to be asked for.
- Contact. No contact at all, or no contact except through a lawyer or as permitted by parenting orders. Decide which before you file, because a blanket condition you then breach yourself is worse than a narrower one.
- Places. Home, workplace, school, childcare, or within a set distance of them. If you want a defendant excluded from a residence, ask for it. The court has to give reasons if it refuses.
- Alcohol and drugs. No approach within a stated number of hours of drinking or using.
- Firearms. An order carries automatic firearms consequences, and a surrender condition can also be sought. See AVOs and firearms licences.
- Property. The court can make a property recovery order allowing belongings to be collected, usually in the company of police.
The court will only impose what is necessary for your safety and protection. Conditions that go further than that get pared back, and asking for everything can cost you credit on the things you actually need.
Your residential address is not to be stated in the order unless the defendant already knows it, you consent, or it is necessary for compliance and your safety would not be threatened.
Children
Children and parenting arrangements
A child can be protected by an order either by being named, or by being covered as a person who lives with you. Where every person to be protected is a child, the application has to be made by police.
If there are parenting orders, or there are likely to be, the conditions need to work alongside them. A Local Court making an AVO can vary, suspend or discharge a parenting order to the extent it would require contact the order prohibits, and family law proceedings must be told about any AVO and any allegation of family violence. Sorting the interaction out at the time the order is made is far easier than unpicking it later. See parenting arrangements.
Risks
What applying can cost you
Costs
Costs cannot be awarded against a protected person who applied unless the court is satisfied the application was frivolous or vexatious. That is real protection, but it is not absolute, and it is the reason a personal violence application made in the heat of a neighbour or workplace dispute needs thinking about first.
Cross applications
The other party applying for an order against you is common, particularly in domestic matters, and the court can end up with two orders. Being ready for it changes how the original application should be framed.
False or misleading applications
Making a false or misleading statement in a personal violence application is an offence in its own right.
The order binds only the defendant
You are not bound by the conditions, but contacting the defendant undermines the order, is the first thing raised on any application to revoke it, and can put them in breach of an order you asked for.
For personal violence matters in particular, it is often worth trying the preventive steps first. A recorded request to stop, a letter, or a mediated resolution either fixes the problem or makes any later application considerably stronger.
Common questions
Frequently asked questions
Does it cost anything to apply?
There is no filing fee to apply for an AVO, and if police apply for you there are no legal costs at all. A private application has whatever cost you choose to put into having it prepared and run.
Can I change my mind and withdraw the application?
If you applied privately, yes. If police applied, no. You can tell police and the court that you no longer want the order and your view will be taken into account, but the application belongs to police and they can continue with it.
Do I have to face the defendant in court?
You can have a supportive person with you when you give evidence. Where you are a vulnerable person, or the matter involves a prescribed sexual offence, you can give evidence by closed circuit television or other means that restrict contact. Where the defendant is unrepresented, they cannot cross-examine you directly in domestic violence matters and a court appointed questioner is used instead.
How long will it take?
If the defendant consents at the first mention, the order is made that day. If it is opposed, expect a timetable for statements, a compliance mention, and then a hearing date, which typically puts the final outcome several months out. An interim order covers you in the meantime.
How long will the order last?
As long as the court considers necessary. Where no period is specified, a domestic order runs for two years, or one year where the defendant was under 18 when the application was first made, and a personal violence order runs for 12 months. Ask for what you need rather than assuming the default. If circumstances change the order can be extended, but only before it expires. See varying or revoking an AVO.
What if the defendant lives interstate?
Domestic violence orders made anywhere in Australia since late 2017 are recognised and enforceable in every state and territory automatically, so a NSW order protects you if either of you moves. Personal violence orders are not part of that scheme and need to be registered in another state to be enforceable there.
What happens if the order is breached?
Report it to police with the order number and whatever evidence you have. Knowingly contravening a condition is a criminal offence carrying a fine and up to two years imprisonment, and where the act was an act of violence the court must impose a sentence of imprisonment unless it orders otherwise. See contravening an AVO.
Do I need a lawyer to apply?
Not to file. Where it makes the difference is in the conditions you ask for, the written statement that becomes your evidence, and being ready for a cross application. If the matter is opposed and heading to a hearing, that is the point to get advice rather than after the statements have gone in.
Talk it through first
Tell us what has been happening
We will tell you whether an application is likely to succeed, whether police should be making it rather than you, what conditions are worth asking for, and what to put in your statement. We act for applicants and for defendants in AVO matters in Local Courts across New South Wales.
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Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Open Monday to Friday 9am to 5pm and contactable outside those hours. If you are in immediate danger, call 000.