Defending an AVO NSW | Consent Without Admissions

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.

It is crucial to seek legal advice before consenting to any AVO, regardless of the circumstances. Catron Simmons Lawyers can assist by offering a consultation to explain the processes, potential consequences, and information relating to your situation.

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.

Children can be included in an AVO in two distinct ways:

1. Named Protected Person: Children can be directly named as protected persons in the AVO.
2. 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.

Importance of Legal Advice

Given the serious implications of an AVO, especially when children are involved, it is crucial to seek legal advice to navigate the complexities and ensure the protection of all parties’ rights. Legal professionals can offer guidance on:

• Inclusion of Children: How best to address the inclusion of children in any AVO to ensure their safety and well-being.
• Impact on Family Court Matters: Understanding how an AVO may affect custody, visitation, and other family law matters.
• Notification Requirements: Ensuring that all relevant courts are properly notified of any existing AVOs and allegations of family violence.

Catron Simmons Lawyers can assist by providing comprehensive legal advice and representation to navigate the intersection of AVOs and family law, thereby protecting your interests and those of your children.

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.

Summary of Stages

1. Application: The initial step where the AVO is lodged but not yet legally enforceable.
2. Provisional Order: If warranted, the application is made enforceable immediately upon service.
3. Interim Order: Automatically follows the first court appearance and remains effective until the final decision.
4. 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.

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.

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

1. 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.

Proven Domestic Violence Charge

If a domestic violence charge is proven, an AVO will typically be granted unless there are exceptional circumstances. However, negotiation regarding the conditions of the AVO can significantly affect your future relationship with the person in need of protection (PINOP) and any involved children.

Dismissal of Domestic Violence Charge

If a domestic violence charge is dismissed, it does not necessarily mean that the AVO will also be dismissed. This is because different standards of proof apply:

• Criminal Charge: Requires the prosecution to prove its case beyond a reasonable doubt.
• AVO: Requires proof on the balance of probabilities, which is a lower standard than that of a criminal charge.

Importance of Negotiating AVO Conditions

The conditions of an AVO can have a lasting impact on your personal and familial relationships. Even if an AVO is granted, negotiating its terms can help in mitigating adverse effects on:

• Future Relationships: Ensuring that the conditions are fair and reasonable can help maintain a workable relationship with the PINOP and any children involved.
• Compliance and Practicality: Tailoring conditions to be practical and achievable can prevent future breaches and complications.

Seeking Legal Advice

It is crucial to seek legal advice to understand the implications of an AVO and to negotiate its conditions effectively. Legal professionals can provide guidance on:

• How to present your case and evidence.
• Negotiating terms that protect your interests and maintain essential relationships.
• Understanding the differences in legal standards and how they apply to your case.

Catron Simmons Lawyers can assist by offering consultations and representation to ensure that your rights are protected and that any AVO conditions are fair and reasonable.

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:

1. 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.

2. Strategic Planning: A lawyer can help develop a strategic plan for presenting or defending your case, including identifying key evidence and potential witnesses.

3. 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.

4. 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.

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

• • 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.

  • 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

• Government and Certain Professions:

  • For jobs requiring a Working With Children Check (WWCC), security licencing, or roles in government, an AVO may be disclosed.
  • Employers in sensitive industries may request more comprehensive checks that could include AVOs, particularly if the role involves the safety and welfare of others.

• Disclosure for Specific Roles:

  • Working With Children: An AVO involving a child can be particularly relevant and may be disclosed during checks for employment involving children.
  • Security Industry: An AVO could influence licencing decisions if the Commissioner of Police deems the defendant not a “fit and proper person.”

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

1. Seriousness:
   • Assessed by details of the conduct, court outcome, and penalty.
2. Length of Time Since Occurrence:
   • The amount of time that has passed since the incident took place.
3. Age and Vulnerability of the Victim:
   • Whether the victim was particularly vulnerable due to age or other factors.
4. Relationship Between Offender and Victim:
   • Nature of the relationship (e.g., family member, acquaintance, stranger).
5. Age Difference Between Offender and Victim:
   • Consideration of the difference in ages.
6. Knowledge of Victim’s Age:
   • Whether the offender knew or should have known that the victim was under 18.

Factors Relating to the Applicant

1. Conduct Since the Offence:
   • Behaviour and actions taken by the applicant since the incident.
2. Age at the Time of the Offence:
   • Applicant’s age when the incident occurred.
3. Current Age:
   • Applicant’s current age.
4. Seriousness of Total Criminal Records:
   • Evaluation of the applicant’s entire criminal record, not just the AVO tied incident.

Factors Relating to Recurrence

1. Likelihood of Reoffending:
   • The probability of the applicant committing similar offences in the future.
2. 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.

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).

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)