Apprehended violence orders in NSW
Defending an AVO and consenting without admissions
You will be asked to make a decision at the first mention, often in a corridor, often with no papers in front of you. Consenting without admissions is quick and it admits nothing. It also produces an order with every consequence a contested order has. Knowing that before you are asked is the whole game.
The decision
Your four options
Have it withdrawn or resolved
A private applicant can withdraw. Police cannot be made to, but an application can be narrowed, and in personal violence matters mediation may resolve it. This is the only outcome that leaves no order at all, so it is worth exploring before anything is agreed.
Consent without admissions
The order is made, you admit nothing, and no findings are made against you. The proceedings end that day. Every consequence of an order follows.
Consent to the order
The same outcome, with the allegations accepted. Rarely the right choice where criminal charges are on foot or family law proceedings are likely, because what you accept here can be used elsewhere.
Oppose it
The matter is adjourned, both sides serve written statements to a timetable, and it is listed for hearing. If the applicant cannot make out the test, the application is dismissed and no order is made.
Whichever way you go, the conditions themselves are negotiable. That is the part most people give away without realising it was on the table.
The middle option
What consenting without admissions actually means
Where the parties consent, the court does not have to be satisfied of the matters it would otherwise have to be satisfied of before making the order. An order can be made whether or not you admit any of the particulars in the application. Nothing is proved against you, no finding is made, and the matter is finished on the day.
Without admissions is not without consequences
The order is an order. Your firearms licence is revoked and the ten year bar starts running. If a child is a protected person under a police order, a working with children risk assessment can follow. A security licence is put at risk. If the order excludes you from the premises, your tenancy can be terminated. You are excluded from jury service while it is in force, and the order sits on police systems and can be disclosed in some employment screening.
None of that is softened by the words “without admissions”. Those words protect you from the allegations, not from the order.
When it is the right call
- The conditions are workable and you have no reason to be near the protected person anyway.
- Nothing turns on the licence, the job or the children, so the order costs you little in practice.
- The evidence against you is strong and a hearing would produce the same order plus findings you would rather avoid.
- The applicant will agree to shorter or narrower terms in exchange for finishing it that day. That trade is available and it is regularly not asked for.
When it is not
- You hold a firearms or security licence, or your work depends on one.
- You hold or will need a working with children check.
- Parenting proceedings are on foot or coming. The order and its conditions are taken into account there.
- The order would put you out of your home and you have nowhere arranged.
- The application is a tactical one, filed to gain ground in a family law or property dispute. Consenting hands over the ground.
It is difficult to undo
Having consented, you cannot simply change your mind and oppose the application later. That route is an appeal to the District Court, and it is available only with the court’s leave. An application to vary or revoke is possible but it needs a change of circumstances, and an application that is really an appeal in disguise can be refused a hearing. Decide once, properly.
The part worth fighting for
Negotiating the conditions
Most defended AVO matters do not end in a dismissal. They end in an order on better terms than the one that was sought. The court is required to impose only what is necessary for the safety and protection of the protected person and any child affected, which means over-reaching conditions are properly the subject of argument.
- Contact. A blanket no contact condition is the default request and often more than the situation needs. Carve-outs for communication through a lawyer, through a third party, or as permitted by parenting orders keep ordinary life possible.
- The residence. An exclusion condition is the single most disruptive term in an order. If it is not necessary, it should not be there, and the court has to give reasons if it declines to make one that is sought.
- Children as protected persons. Whether a child is named matters enormously for a working with children check and for parenting proceedings. It is worth arguing about, not conceding as a formality.
- Duration. The court sets the period as long as is necessary. The default applies only where nothing is specified, so a shorter period can be asked for and often is not.
- Workability. Conditions you cannot realistically comply with, given where you live, work or drop children off, are conditions you will eventually breach. A breach is a criminal charge, and unlike the order itself a conviction for contravening an AVO does go on your record.
Conditions can be revisited later, but that means another application and another set of grounds. Getting them right at the outset is far cheaper. See varying or revoking an AVO.
Contesting it
What opposing the application involves
You do not have to prove anything. The applicant has to satisfy the court, on the balance of probabilities, that the protected person has reasonable grounds to fear and in fact fears a personal violence offence, or intimidation or stalking, and that the conduct is sufficient to warrant an order. A defence is built by testing each of those.
- Fear in fact. Conduct after the alleged incidents often tells against it. Continued contact, invitations, shared plans, joint travel.
- Reasonable grounds. The fear has to be objectively reasonable on the material, not simply held.
- Sufficient to warrant. Even where fear is genuine and reasonable, the conduct may not justify an order, particularly where it is dated, isolated or trivial.
- Credit and inconsistency. The statement, the police notes and the messages frequently do not line up. That is what cross-examination is for.
- Motive. Applications filed days after a separation, a property dispute or a parenting application are not thereby untrue, but the timing is a legitimate line of questioning.
- Cross applications. Where the conduct ran both ways, your own application changes the shape of the negotiation.
Is it worth fighting
These applications are resisted successfully. Some are dismissed at hearing because the evidence does not hold up under cross-examination. Many more are withdrawn, narrowed or resolved on far better terms once someone is genuinely testing them, because an applicant who has never been asked to prove anything often finds the case looks different when they are. The standard of proof is lower than the criminal standard, so the answer is not to hope, it is to build the case properly and early.
The starting question is what the order actually does to you. Where it costs you a licence, a job, your home or time with your children, it deserves to be examined before you hand it over. A great many defendants consent at the first mention simply because nobody had told them the application could be resisted at all, or that the conditions were negotiable. That is the expensive mistake, and it is an avoidable one.
Charges too
Where there are criminal charges
AVOs commonly run alongside charges such as assault, intimidation or stalking, and damaging property. The two matters are decided together and the criminal outcome usually drives the order.
- On charge. Where you are charged with a serious offence, the court must make an interim order protecting the alleged victim unless satisfied one is not required. That is not a decision you can talk the court out of.
- On a plea or a finding of guilt. The court must then make a final order unless satisfied it is not required. That applies even where the charge is dealt with without a conviction being recorded. A plea in the criminal matter effectively decides the AVO, so the two have to be considered as one decision.
- Where the charge is dismissed. The AVO does not fall with it. The standards of proof are different, and an application can succeed on material that could not sustain a conviction.
- Sentence. Where you are sentenced to full time imprisonment for a relevant offence, the order runs for the term of imprisonment plus a further two years unless there is good reason for a different period.
Because the outcomes are linked, so is the timing. Where a plea of not guilty is entered, the AVO application is listed with the charges and both are prepared to the same timetable. See domestic violence offences.
The hearing
How a contested AVO is actually run
These are not criminal proceedings, and they are not run like an ordinary civil case either.
- Written statements, not affidavits. Both sides serve written statements of their witnesses to a court timetable. At the hearing those statements stand as the evidence in chief, and unless the court gives leave nothing further can be added. What is in the statement is the case.
- Compliance mention. The matter comes back roughly five weeks after the timetable is set to check both sides have complied. Not complying has consequences for what you can then rely on.
- Cross-examination. Witnesses are cross-examined on their statements. Where a domestic violence complainant gives evidence and you are unrepresented, you cannot question them yourself and a court appointed questioner is used.
- Protective measures. Vulnerable witnesses can give evidence by closed circuit television, and the court can be closed while a domestic violence complainant gives evidence.
- If you do not appear. Where you have been served and do not turn up, a final order can be made in your absence.
Afterwards
If an order has already been made
Made in your absence
You can apply to annul it, in the same way an ex parte conviction can be annulled. This is the cleanest route where you were never served or could not attend, and it should be moved on quickly.
Appeal to the District Court
Available against the making of an order. Where you consented, leave is required. Time limits are short and lodging an appeal does not suspend the order, so assume it continues to bind you unless the Local Court stays it.
Vary the conditions
Where the order is workable in principle but a condition is not, an application to vary is usually a better use of time and money than an appeal. It needs a change of circumstances.
The firearms position
If you held a licence, it is already gone and a clock is running. Revocation of the order is the only thing that lifts the ten year bar, and it is only available while the order is in force.
Common questions
Frequently asked questions
Does consenting without admissions mean I am admitting nothing at all?
Correct. No admission is made, no finding is made against you, and the allegations are not proved. What follows is the order itself, and the order carries the same consequences either way.
Will an AVO show up on a police check?
An AVO is not a conviction and does not appear on a standard criminal history check as one, though it is likely to be disclosed while it is in force and in some employment screening. A conviction for breaching an order is a different matter and does appear.
Can I get my costs if the application is dismissed?
Rarely. Costs can be awarded in either direction, but they cannot be awarded against a protected person who applied unless the court is satisfied the application was frivolous or vexatious, and there are strict limits on costs against police in domestic violence matters. Do not run a hearing on the expectation of recovering your costs.
The protected person says they do not want the order. Does that end it?
Not where police applied. A police application cannot be withdrawn by the protected person, and police regularly continue with it. Their view is relevant to what the court does, but it does not decide it.
Can I still live in my own home?
Only if the order does not exclude you. Where an exclusion condition is sought, that is the condition to argue about, and the court has to give reasons if it declines to make one that was asked for. If a final order does exclude you from rented premises, your tenancy can be terminated.
What if the protected person contacts me?
The order binds you and not them. Responding can put you in breach even where they initiated it, and their consent is not a defence. If contact is happening, apply to vary the conditions rather than replying.
How long will an order last?
As long as the court considers necessary. Where no period is specified, two years for a domestic order against an adult, one year where you were under 18 when the application was first made, and 12 months for a personal violence order. A shorter period can be sought.
Should I just get it over with?
Sometimes that is the sensible answer, and we will tell you so. But it should be a decision made with the conditions in front of you and the consequences worked out, not one made in a corridor twenty minutes before your matter is called.
Before you agree to anything
Get advice before the first mention
Send us the application and any order already served, and tell us what you stand to lose: a licence, a job, your home, time with your children. We will tell you whether the application can be resisted, what conditions are worth negotiating, and whether consenting without admissions is the right call in your situation. We act for defendants and for protected persons in AVO matters in Local Courts across New South Wales.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Open Monday to Friday 9am to 5pm and contactable outside those hours.