The difference between a Domestic and Personal Violence Order is essentially the relationships between the parties. A domestic relationship is one where the parties are partners, ex-partners, family members or anywhere where a domestic relationship exists.
AVO’s in New South Wales are governed by the Crimes (Domestic and Personal) Violence Act 2007. Apprehended Violence Orders can be made for the protection of another person if that person (or a police officer) fears violence, intimidation, harassment or stalking by another person. Those fears must be reasonable and that the conduct being alleged warrants the making of a court order.
It is important to understand that an Apprehended Violence Order by itself is not a criminal matter and does not result in a criminal conviction, however, a breach of any order is a serious criminal offence with a maximum penalty of 2 years imprisonment and/or 50 penalty unit fine. Orders themselves can also have significant impacts upon your personal and professional life.
Apprehended Violence Orders will often be accompanied with criminal offences, such as assault, intimidation, or damage to property. This is not a requirement, however. It is important to understand that if you are convicted of these criminal offences with a corresponding AVO the court is required to make the AVO final with the standard period being two years. Although an AVO may be set for a period of time, this can also be varied or revoked on application by interested parties.
Consequences of an Apprehended Violence Order
- Removal of firearms and the immediate suspension of any firearms licence.
- Not being able to hold a firearms licence until 10 years past the expiry of any order
- The AVO will remain on the Police database for life if granted or not
- Implication for Visas’ or immigration requirements
- Possible employment issues such as the security/policing industries and working with children.
What Grounds need to be proven
The test for the making of such an order is found within Section 15 for Domestic applications and Section 18 for Personal Applications of the Crimes (Domestic and Personal Violence) Act 2007. The test is the same being that:
(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears—
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person—
(i) intimidates the person, or
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
I have been served with an Apprehended Violence Order, what are my Options?
In general there are three main options:
- Agree to the Apprehended Violence Order
- Agree to the Apprehended Violence Order without admissions meaning that you agree to abide by the conditions of the AVO but you may not necessarily agree with the reasons behind the request.
- Defend the Apprehended Violence Order.
Should you require any assistance please contact us, we are extremely experienced in AVOs and can give you the guidance and advice you require.
What are the stages of an AVO proceeding (no charges)?
Typically there are four major stages of an AVO application;
- Application
This is the initiation of the process where an application for an AVO is first completed. This can be done by the Police and/or a private application through the courts.
If the AVO remains an application only, that means that the AVO is not legally enforceable once served on the responding party.
- Provisional Order
If the matter is deemed serious enough the application may be immediately made into a Provisional AVO. This means that once the order is served upon you / respondent the order is legally valid and binding until changed and/or revoked or dismissed by the court.
- Interim Order
After the first court date a Provisional Order is automatically made into an Interim order whether the court says so or not. It is critical to remember this order remains in force until they are either revoked, dismissed, withdrawn or superseded by a final court order.
- Final Order
A final order is where an order has been made by the court and the AVO is enforce for a period, typically one to two years depending on the application.
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 have a significant impost upon your personal and professional life.
Any breach/contravene of an AVO is a criminal charge and could have significant legal consequences. For more information on this look at Contravene AVO.
Some of these consequences include:
- Removal of firearms and the immediate suspension of any firearms licence.
- Not being able to hold a firearms licence until 10 years past the expiry of any order
- The AVO will remain on the Police data base for life if granted or not
- Possible employment issues such as the security/policing industries and working with children.
It is important to seek legal advice before consenting to any AVO no matter what the circumstances. Catron Simmons Lawyers can assist and offer a consultation to explain the processes, consequences and information relating to your situation.
Defending an AVO where there are linked criminal charges
If a domestic violence charge is proven an AVO will typically will granted unless there are exceptional circumstances. However, negotiation as to the conditions on the AVO can have a dramatic impact on the future of your relationships with the person in need of protection and/or children if applicable.
If a domestic charge is dismissed, it will not necessarily mean that the AVO will follow. This is because there are two separate tests; the charge requires the prosecution of prove its case beyond a reasonable doubt whereas, the AVO only requires a balance of probabilities.
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 AVO's?
Children can also be included on any AVO in two ways. Firstly, they as a named protected person and secondly, as a person that resides at the same location as the person named.
If there are later proceedings in the Family or Federal Court in regard to divorce or children, the court must take into account any allegations of family violence and be notified or any AVO’s.
AVO Hearings where there are no associated charges
AVO Hearings are run completely different to a ‘normal’ application or charge in criminal law. The major difference is that these proceedings follow civil litigation rules, in that both sides are required before the hearing to have served all materials in affidavit form on each party and the court.
It is critical that you engage a solicitor early in the process to ensure that you present/defend your case clearly and appropriately in order for your interests to be supported.
How long is an AVO for?
There is no specific time limit for an AVO, it depends on how long the applicant is requesting and what the court considers necessary. Meaning an AVO can be for a period of days, months but more likely years.
It is also important to remember that any AVO can be extended on application.
It is important to obtain legal advice before agreeing to any AVO or extension for an AVO to understand your rights.
Can I vary or revoke an AVO
Variation or Revocation of an AVO:
(1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order.
(2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways–
(a) by extending or reducing the period during which the order is to remain in force,
(b) by amending or deleting any prohibitions or restrictions specified in the order,
(c) by specifying additional prohibitions or restrictions in the order.
(3) The court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order.
Consequences of an AVO
Although an AVO is not a criminal conviction or order it is an order of the court and has the potential to have a significant impact upon your personal and professional life.
Some of these consequences include:
- Removal of firearms and the immediate suspension of any firearms licence
- Not being able to hold a firearms licence until 10 years past the expiry of any order
- The AVO will remain on the Police database for life if granted or not
- Possible employment issues such as the security/policing industries and working with children
- Breaching an AVO is a serious offence with a maximum fine of $2,200 and two years imprisonment.
it is important to seek legal advice before consenting to any AVO no matter what the circumstances. Catron Simmons Lawyers can assist and offer a consultation to explain the processes, consequences, and information relating to your situation.