Apprehended violence orders in NSW

AVO lawyers

An AVO is not a criminal charge and it does not give you a criminal record. It is still a court order that can decide where you live, when you see your children, whether you keep your licence and whether you keep your job. What you do at the first mention usually matters more than anything that happens later.

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The basics

What an AVO is

An apprehended violence order prohibits one person from doing certain things in relation to another. It is a protective order made in civil proceedings, so the standard of proof is the balance of probabilities rather than beyond reasonable doubt, and no conviction is recorded. Breaching one, however, is a criminal offence.

ADVO

Apprehended domestic violence order

Where the parties have, or have had, a domestic relationship. The definition is wide and reaches well beyond partners and ex-partners, taking in relatives, people who live or have lived in the same household, and people in a carer relationship.

APVO

Apprehended personal violence order

Where there is no domestic relationship. Neighbours, co-workers, former business associates. These applications are usually referred to a Community Justice Centre for mediation before the court will list them for hearing.

Applications are made by a police officer, by the person seeking protection, or by that person’s guardian. Where every person to be protected is a child, only police can apply.

Where you are up to

The four stages of an AVO

Stage 1

Application

The application is filed and served, and a first court date is set. Nothing is enforceable at this point. Service has to be personal unless the court orders otherwise, and only a police officer or a person nominated by the court can serve it.

Stage 2

Provisional order

Made by police, often over the phone, where the situation calls for immediate protection. It binds you as soon as it is served and is enforceable straight away. Only police can apply to change or revoke a provisional order, with a limited exception for orders made by a senior officer.

Stage 3

Interim order

On the first return date the court can dismiss the application, revoke the provisional order, or make an interim or final order. If it does none of those, the provisional order becomes an interim order in the same terms. An interim order runs until it is revoked, until a final order is made and served, or until the application is withdrawn or dismissed.

Stage 4

Final order

Made after a hearing, by consent, or in your absence if you have been served and do not appear. It runs for the period the court sets.

The first mention is the decision point

At the first mention you will be asked to do one of three things: seek an adjournment for advice, consent to an order without admitting anything in the application, or oppose it and have the matter listed for hearing. Each of those has consequences that are hard to reverse. Getting advice before that date is worth far more than getting it afterwards.

The test

What has to be proved

For a final order, the court must be satisfied on the balance of probabilities that the protected person has reasonable grounds to fear, and in fact fears, either a personal violence offence being committed against them, or intimidation or stalking, and that the conduct is sufficient to warrant the making of the order.

The onus is on the applicant. A defendant does not have to prove innocence. The case is met by testing the evidence the applicant relies on.
Actual violence is not required. Intimidation is defined broadly and can include conduct that involves no violence at all, including threats to damage property and conduct causing a reasonable apprehension of harm to an animal.
Fear is not always required. 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.
Sufficient to warrant is a separate question. Even where fear is established and reasonable, the court must still think the conduct warrants an order.
Conditions must go no further than necessary. The court is required to impose only what is necessary for the safety and protection of the protected person and any child affected.

Consenting without admissions

An order can be made by consent whether or not the defendant admits anything in the application, and where the parties consent the court does not have to be satisfied of the usual statutory preconditions. It is quick and it ends the proceedings, and for many people it is the right decision. It is not, however, a free option, because every consequence set out below follows an order made by consent exactly as it follows one made after a hearing. See defending an AVO and consent without admissions.

Conditions

What the order actually says

The mandatory conditions

Every AVO carries three conditions, whether or not they are asked for. You must not assault, threaten, stalk, harass or intimidate the protected person, you must not intentionally or recklessly destroy or damage their property, and you must not intentionally or recklessly harm an animal that belongs to or is in the possession of the protected person or someone they have a domestic relationship with.

Additional conditions commonly sought

No contact with the protected person at all, or no contact except through a lawyer or as permitted by parenting orders.
Exclusion from a residence, a workplace, a school or a childcare centre, or from within a set distance of them.
No approach after drinking or using drugs within a stated number of hours.
Firearms conditions, including surrender of any firearm and licence.

If a condition would exclude you from premises and the court decides not to make it, the court has to give reasons. That cuts both ways, and it is one reason exclusion conditions are worth arguing about rather than accepting as standard.

The court can also make a property recovery order, allowing one party to collect belongings from the other’s premises, usually in the company of police.

Duration

How long an order lasts

Type of order	Duration
Final ADVO	As long as the court considers necessary. If no period is specified, two years for an adult defendant and one year where the defendant was under 18 when the application was first made
Final APVO	As long as the court considers necessary. If no period is specified, 12 months
ADVO where the defendant is sentenced to full time imprisonment	The term of imprisonment plus a further two years, unless there is good reason for a different period
Indefinite ADVO	No expiry. Available only where the risk is significant and ongoing and cannot be managed by an order of limited duration
Interim order	Until revoked, until a final order is made and served, or until the application is withdrawn or dismissed

An order can be extended, shortened, tightened or loosened during its life, and it can be revoked, but only while it is still in force. See varying or revoking an AVO.

Consequences

What an order costs you

None of this depends on a conviction, and none of it depends on the order having been contested.

Firearms and weapons

An interim order suspends a firearms licence automatically. A final order revokes it, and no new licence can be issued for ten years unless the order is revoked. Firearms and the licence itself must be surrendered immediately.

Security industry work

A security licence turns on the applicant being a fit and proper person, and an AVO is relevant to that assessment. Where the role requires a firearm, the firearms position decides it outright.

Working with children

A final police initiated order protecting a child, made against an adult, triggers a risk assessment by the Office of the Children’s Guardian, which can end in refusal or cancellation of a clearance. Orders that do not protect a child generally do not trigger one. If you hold or need a check, that has to be raised before anything is agreed, including who is named as a protected person.

Where you live

Where a final order excludes a tenant from the premises, the tenancy of that person can be terminated. An exclusion condition can put you out of your home with no notice period and nowhere arranged.

Children and parenting

An AVO and its conditions are taken into account in parenting proceedings, and a Local Court making or varying an AVO can vary, suspend or discharge a parenting order to the extent it would require contact the AVO prohibits. See parenting arrangements.

Records, jury service and travel

An AVO is not a conviction and does not appear on a criminal record as one, but the application and the order are recorded by police and can be disclosed in some employment screening. You are excluded from jury service while an order is in force against you, and an order can be relevant where a visa or immigration decision turns on character.

Police also conduct AVO compliance checks on people subject to final orders. Traditionally these were reserved for higher risk matters and they are becoming more common. A fuller list of the flow-on effects is on our page about the consequences of an AVO.

Charges as well

Where there are criminal charges too

AVOs frequently run alongside charges such as assault, intimidation or stalking, and damaging property. Charges are not a precondition to an order, but where they exist the court’s obligations change.

On charge. Where a person is charged with a serious offence, the court must make an interim order protecting the alleged victim unless satisfied that an order is not required, for example because one is already in place.
On a plea or a finding of guilt. Where a person pleads guilty to or is found guilty of a serious offence, the court must make a final order unless satisfied it is not required. That applies even where the charge is dealt with without conviction, and even where no AVO application was ever made.
On sentence. The court can also vary an existing order at that point to give the protected person greater protection.

The practical consequence is that a plea in the criminal matter often decides the AVO. Running the two separately, without thinking about how the outcome of one drives the other, is the most common and most expensive mistake in this area. See domestic violence offences.

Breach

Contravening an order

Knowingly contravening a condition is a criminal offence carrying a fine and up to two years imprisonment. Unless the court orders otherwise, a person convicted of a contravention must be sentenced to a term of imprisonment where the act constituting the offence was an act of violence.

Consent of the protected person is not a defence. If the order says no contact, an invitation to make contact does not make it lawful.
Knowledge matters. You cannot be convicted unless you were present in court when the order was made or were served with a copy.
Breaches are recorded as convictions. That is the point at which the criminal record consequences begin.

See contravening an AVO.

If it has gone wrong

Appeals, annulment and interstate orders

Appeal to the District Court

A defendant can appeal against an order being made, and an applicant against dismissal. Where you consented to the order and now want to oppose it, an appeal is available only with leave. Time limits are short.

Order made in your absence

Where a final order was made without you there, you can apply to annul it, in the same way an ex parte conviction can be annulled. An applicant whose application was dismissed in their absence can apply to reinstate it.

No automatic stay

Lodging an appeal does not suspend the order. You can ask the Local Court to stay it, but the court can only do so if satisfied it is safe having regard to the protection of the protected person and others. Assume the order continues to bind you.

Orders from other states

Domestic violence orders made anywhere in Australia since late 2017 are automatically recognised and enforceable in New South Wales, and older ones can be declared recognised on application. A NSW court can vary or revoke a recognised interstate order, though it can decline to hear the application and cannot do what the originating court could not.

Where to next

Which situation are you in

I need protection

How to apply for an order privately, what evidence is needed, and how a private application differs from one made by police.

An order has been sought against me

Opposing an application, negotiating conditions, and what consenting without admissions really costs.

The order needs to change

Extending, shortening, tightening or relaxing conditions, and revoking an order altogether while it is still in force.

My firearms licence is affected

Suspension, revocation, the ten year bar, surrendering firearms, and what has to happen before you can hold a licence again.

I am charged with breaching an order

What the prosecution has to prove, the defences that are available, and the sentencing consequences.

There are criminal charges as well

How the charge and the order interact, and why the plea in the criminal matter usually decides the order.

Common questions

Frequently asked questions

Does an AVO give me a criminal record?

No. AVO proceedings are civil and an order is not a conviction. Breaching the order is a criminal offence, and a conviction for that does go on your record. The order itself is still recorded by police and can be disclosed in some employment screening.

Should I just consent to get it over with?

Sometimes that is the right call, particularly where the conditions are workable and a hearing would cost more than it is worth. But every consequence of an order follows a consent order the same way. If you hold a firearms or security licence, need a working with children check, rent with the protected person, or have parenting arrangements in place, work out what an order does to those things before you agree to one.

Can the protected person just drop it?

A private applicant can withdraw. Where police applied, the protected person cannot withdraw the application, and police regularly press on even where the protected person no longer wants the order. Their views are relevant but they do not decide it.

Can I still see my children?

Usually, yes. Conditions are commonly drafted to allow contact for the purposes of arrangements for children or as permitted by a parenting order. The detail matters, because a condition that reads sensibly in court can make an agreed handover impossible in practice.

What if the protected person contacts me?

The order binds you, not them. Their contacting you does not authorise you to respond, and it is not a defence to a breach. If it is happening, that is a reason to apply to vary the conditions, not a reason to reply.

Will I have to pay the other side’s costs?

Costs can be awarded either way, but there are real limits. Costs are not awarded against a protected person who applied unless the court is satisfied the application was frivolous or vexatious, and there are limits on costs orders against police in domestic violence matters.

Do I need a lawyer for an AVO?

You can appear yourself, and many people do. What a lawyer changes is the negotiation before the matter is called, the wording of the conditions, and whether the consequences you actually care about have been thought through. Those are the parts that are hard to fix afterwards.

Is an AVO the same everywhere in Australia?

The orders go by different names, including family violence intervention orders in Victoria, intervention orders in South Australia, violence restraining orders in Western Australia, family violence orders in Tasmania and the ACT, and domestic violence orders in Queensland and the Northern Territory. Since late 2017 they are recognised and enforceable nationally, so an order made in one state binds you in all of them.

Before your first court date

Talk to us before the first mention

Send us the application and any order that has already been served, and tell us what you need to protect: your home, your children, a licence, a job. We will tell you what the realistic outcomes are, what the conditions would mean day to day, and whether the matter is worth running. We act for defendants and for protected persons in AVO matters in Local Courts across New South Wales.