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. Such an order should not be taken lightly, whether defending or applying for an order there can be significant legal consequences.
- Apprehended Domestic Violence Order (ADVO): Applies when the parties have a domestic relationship, such as:
- Partners or ex-partners
- Family members
- Individuals in a situation where a domestic relationship exists
- Apprehended Personal Violence Order (APVO): Applies when the parties do not have a domestic relationship.
Both types of AVOs serve to protect individuals from violence, intimidation, harassment, or stalking. These orders are governed by the Crimes (Domestic and Personal Violence) Act 2007 in New South Wales.
Apprehended Violence Orders (AVOs) are often accompanied by criminal charges such as:
While it is common for AVOs to be issued alongside these criminal offences, it is not a requirement. It is crucial to understand that if an individual is convicted of criminal offences in conjunction with an AVO, the court is obligated to make the AVO final for a standard period of two years. This ensures continued protection for the person in need of protection (PINOP).
Duration and Flexibility of AVOs
Although AVOs typically have a set duration, application can be made in certain circumstances to vary or revoke the order:
- Variation: Interested parties, including the protected person or the defendant, can apply to vary the terms of an AVO to better address the current situation.
- Revocation: Should the circumstances change significantly, interested parties can apply to revoke the AVO altogether.
Each application to vary or revoke an AVO is subject to court approval, ensuring that the changes serve the interests of justice and the continue to protect the Person in Need of Protection (PINOP).
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 the 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.
Consequences of an AVO
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
Police are also known to conduct AVO Compliance checks on individuals with final AVOs, although traditionally for more high risk matters, it is becoming more common.
Major Stages of an AVO Application
Understanding the stages of an Apprehended Violence Order (AVO) application process is crucial for both the applicant and the respondent. There are typically four major stages:
1. Application
- Initiation: This stage involves the completion of an application for an AVO. The application can be made by the police or through a private application by the individual seeking protection.
- Legal Status: At this stage, the AVO is not legally enforceable. It becomes enforceable only once it progresses to the Provisional Order stage.
2. Provisional Order
- Seriousness of Matter: If the situation is considered serious enough, the application may be immediately converted into a Provisional AVO.
- Enforceability: Once the Provisional AVO is served on the respondent, it becomes legally valid and binding. This provisional order remains in effect until altered, revoked, or dismissed by the court.
3. Interim Order
- Progression: After the first court date, a Provisional Order is automatically converted into an Interim Order, regardless of whether the court explicitly states this.
- Duration: The Interim Order remains in force until it is either revoked, dismissed, withdrawn, or superseded by a final court order.
4. Final Order
- Court Decision: A Final Order is issued by the court after considering all evidence and arguments.
- Enforceability: The AVO becomes legally enforceable for a specified period, typically one to two years, depending on the details of the application.
What Grounds need to be proven in order to get 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.
What are the stages of an AVO proceeding (no charges)?
- Application: The initial step where the AVO is lodged but not yet legally enforceable.
- Provisional Order: If warranted, the application is made enforceable immediately upon service.
- Interim Order: Automatically follows the first court appearance and remains effective until the final decision.
- Final Order: The court’s final, legally binding decision, typically enforceable for one to two years.
Understanding these stages can help both parties navigate the AVO process more effectively, ensuring that they comply with legal requirements and timelines.
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.
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.
Possibility of Extension
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.
Does An AVO appear on a Police Check?
1. Types of Police Checks
- National Police Check (Standard Criminal History Check): Primarily checks for criminal convictions and pending charges.
- Employment or Volunteer Checks: Can be tailored to include additional information relevant to specific industries, such as working with children or in security.
2. Appearance of AVOs
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AVO Itself:
- AVOs are not criminal convictions, so they may not appear on a standard criminal history check. It is likely they will appear while enforced however.
- However, the existence of an AVO can be recorded and remain on police databases.
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Breaches of AVO:
- If an individual has been charged and convicted for breaching an AVO, this conviction would appear on a standard criminal history check.
- Breaching an AVO is a criminal offence and carries serious penalties, including potential imprisonment.
3. Employment Considerations
What if i need a Working with Children Check?
While you can still apply for a Working With Children Check (WWCC), the outcome depends on the type of criminal or workplace records you have. Certain offences can lead to automatic disqualification under Schedule 2 of the Child Protection (Working with Children) Act 2012. AVOs do not lead to automatic disqualification but may trigger a risk assessment.
Risk Assessment Process
If an AVO or criminal conviction does cause an issue, a risk assessment will be undertaken to determine your suitability. The assessment considers various factors related to the conduct, the applicant, and the likelihood of recurrence.
Factors Relating to the Conduct
- Seriousness:
- Assessed by details of the conduct, court outcome, and penalty.
- Length of Time Since Occurrence:
- The amount of time that has passed since the incident took place.
- Age and Vulnerability of the Victim:
- Whether the victim was particularly vulnerable due to age or other factors.
- Relationship Between Offender and Victim:
- Nature of the relationship (e.g., family member, acquaintance, stranger).
- Age Difference Between Offender and Victim:
- Consideration of the difference in ages.
- Knowledge of Victim’s Age:
- Whether the offender knew or should have known that the victim was under 18.
Factors Relating to the Applicant
- Conduct Since the Offence:
- Behaviour and actions taken by the applicant since the incident.
- Age at the Time of the Offence:
- Applicant’s age when the incident occurred.
- Current Age:
- Seriousness of Total Criminal Records:
- Evaluation of the applicant’s entire criminal record, not just the AVO tied incident.
Factors Relating to Recurrence
- Likelihood of Reoffending:
- The probability of the applicant committing similar offences in the future.
- Impact on Children:
- Potential impact on children if the offences were to be repeated.
Importance of Legal Advice
Given the complexities involved in a WWCC and the potential impact of an AVO or criminal conviction, it is crucial to seek legal advice. An experienced lawyer can:
- Guide You Through the Process: Help you understand the requirements and the risk assessment criteria.
- Assist in Preparing Your Application: Ensure that all relevant information is accurately presented.
- Represent You If Issues Arise: Provide representation if your application is flagged for a risk assessment or if you face any complications.
Catron Simmons Lawyers can offer consultations to help you navigate the Working With Children Check process and manage any issues arising from AVOs or criminal records. Contact us for legal advice tailored to your specific situation and ensure your rights and interests are protected.
Can I vary or revoke an AVO
Although AVOs typically have a set duration, application can be made in certain circumstances to vary or revoke the order:
- Variation: Interested parties, including the protected person or the defendant, can apply to vary the terms of an AVO to better address the current situation.
- Revocation: Should the circumstances change significantly, interested parties can apply to revoke the AVO altogether.
Each application to vary or revoke an AVO is subject to court approval, ensuring that the changes serve the interests of justice and the continue to protect the Person in Need of Protection (PINOP).
What if the AVO is not from NSW?
In 2015, the Council of Australian Governments (COAG) agreed that all states and territories should introduce model laws to automatically recognise and enforce Domestic Violence Orders (DVOs) across Australia. This national scheme aims to provide consistent protection for victims of domestic violence, regardless of where they live or move within Australia.
Key Points on National Recognition
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Automatic Recognition:
- Post-25 November 2017: All Apprehended Violence Orders (provisional, interim, and final) made in any state or territory on or after 25 November 2017 are automatically recognised and enforceable in all other states and territories.
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Pre-25 November 2017 AVOs:
- For AVOs made before 25 November 2017, the person seeking protection must apply for registration to a court in the state or territory in which they are currently living to ensure automatic recognition and enforcement.
Legislative Framework
All states and territories have passed legislation implementing the national framework. This ensures that protection extends seamlessly across borders, providing better security and certainty for individuals under a DVO.
Implications
For Victims of Domestic Violence
- Enhanced Protection: Victims are protected nationwide without needing to reapply for an AVO when moving interstate.
- Simplified Process: Automatic recognition reduces the administrative burden and the stress of navigating the legal system in different jurisdictions.
For Defendants
- Consistent Obligations: Defendants must comply with the terms of the AVO regardless of the state or territory they are in.
- Understanding Enforceability: It’s crucial for defendants to understand the enforceability of an AVO across Australia to avoid unintentional breaches.
Applying for Registration (Pre-25 November 2017 AVOs)
For those with AVOs made before 25 November 2017, the following steps are typically involved in applying for registration:
- Application Submission: Submit an application to the local court in the state or territory where you currently reside.
- Court Consideration: The court will consider the application and, if approved, will register the AVO, making it enforceable nationally.
- Notification: The applicant and relevant authorities will be notified of the registration.
Importance of Legal Support
Navigating the national recognition framework can be complex, and obtaining legal advice can help ensure compliance and protect your rights.
Catron Simmons Lawyers Can Assist:
- Guidance on Registration: Helping victims of domestic violence register pre-25 November 2017 AVOs.
- Understanding Rights and Obligations: Providing clarity on the implications of national recognition for both victims and defendants.
- Legal Representation: Assisting with any legal proceedings related to the enforcement or challenge of an AVO.
Contact us for a consultation to discuss your situation and ensure your protections and obligations are clearly understood and effectively managed.
What are the different names for an AVO?
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)