Being the subject of an AVO can take a significant toll on your life, adversely affecting your ability to maintain contact with your loved ones.
However, with the help of an experienced criminal lawyer, you can fight to have unfairly imposed AVOs dismissed so that you and your family can work towards moving forward.
An apprehended violence order (AVO) is a court order made against you which aims to protect a ‘person in need of protection’ (‘PINOP’) from violence, harassment, intimidation or stalking.
Although most AVOs serve a legitimate purpose, they are being increasingly used for improper reasons – for example, when one partner wants to get revenge on the other, or to strengthen family or civil law proceedings. In some cases, they have even been used to advance visa applications.
AVOs may be made by police when they are concerned about the welfare or safety of a PINOP, even if the PINOP does not want an AVO to be issued. These are known as ‘police AVOs.’ They are often issued following an assault or sexual assault against the PINOP.
Alternatively, AVOs may be made by the PINOP themselves – these are known as ‘private AVOs’.
There are two different types of AVOs:
Apprehended Domestic Violence Order (ADVO)
An ADVO is issued where there is an existing domestic or family relationship between yourself and the PINOP – for example:
- Where you are married, de-facto, or in an intimate relationship
- Where you live in the same house (for example, a parent and child)
- Where one person cares for the other (such as a nurse caring for an elderly or disabled patient)
- Where you are a relative of the PINOP
- Where you are part of the same Indigenous kinship system
Apprehended Personal Violence Order (APVO)
An APVO is issued where there is no domestic or family relationship between the parties; for example:
- Where the PINOP is a neighbour
- Where the PINOP is a work colleague
- Where the PINOP is a friend or acquaintance
Because an AVO is not a criminal conviction, it will not appear on your criminal record. However, it can still have a significant impact on your personal and professional life.
An outstanding AVO will show up on a ‘background check’ conducted by many employees. In particular, it may impact your ability to work with children, as well as your ability to carry firearms.
Furthermore, an AVO can negatively impact your family and personal life, as it may prevent you from living with the person who applied for the AVO. This, in turn, can affect your ability to maintain a relationship with your children and extended family.
Even where you are allowed to continue living or associating with the person who has sought the AVO, it can place an enormous strain on your family relationships because you must constantly worry about whether your conduct could breach the AVO.
Because of these serious consequences, it’s strongly advised that you seek assistance from a highly experienced criminal lawyer who can advise you on the best course of action when it comes to defending your AVO.
Our lawyers have considerable experience defending AVOs and regularly appear in court in relation to these matters.
We will support you every step of the way – from helping you understand the conditions of the AVO to contesting the conditions in court if necessary.
Generally, there will be several court dates to determine whether an AVO is successful.
At the first court date (known as a ‘mention’), the magistrate will ask you whether you consent to the AVO, or whether you want to defend it.
It is important to think carefully about whether you want to consent to the AVO or not. If you do consent, the person who is seeking the AVO will be asked what orders (or conditions) of the AVO they wish to impose.
It is important to note the conditions of the AVO – if you do not stick to them, you will breach the AVO, which may get you into more trouble. If you do not agree to any of the conditions, you should tell the court. Once the AVO has been made, it will be effective immediately.
You may consent to the AVO with or without admissions. If you consent to the AVO with admissions, you will be admitting to the conduct that was alleged by the person seeking the AVO.
If you consent to the AVO without admissions, you will allow the court to make the AVO, however you will not be admitting to the conduct alleged by the other person.
If you do not wish to consent to the AVO, you can request a hearing to determine whether the AVO is necessary. The court may make ‘interim orders’ until the hearing date – this is a sort of ‘temporary’ AVO until the matter can be heard.
Generally, if you request a hearing, you will have to come back to court several times as each party will be ordered to serve statements upon each other.
On the hearing date, the magistrate will read the statements and each party can give evidence and be cross-examined. Although you may represent yourself in an AVO hearing, cross-examination can be a complex and difficult task, so you should consider getting a lawyer with a proven track record of defending AVOs.
Once the magistrate has heard all the evidence, they will make an order either granting the AVO, or dismissing it.
If either party does not turn up to the AVO hearing, the court may still hear the matter and determine whether an AVO is necessary.
They may also adjourn the matter so that it can be heard at a later date when both parties are present. Alternatively, they may issue a warrant for your arrest, or for the arrest of the person who applied for the AVO. The court may also make an ‘interim order,’ which is a temporary order until the matter can be heard at a later date.
If you do not agree with the magistrate’s decision, you may appeal the matter to the District Court.
In most situations, to finalise an AVO, the applicant or PINOP needs to prove three things on the balance of probabilities (more than 50%):
- That the PINOP has reasonable grounds to fear that the other person will stalk or intimidate them, or commit a ‘violence offence’ against them
- The fear is reasonable in the circumstances
- The conduct that is feared justifies the issuance of an AVO
However, in certain situations, it is not necessary to prove the first criteria (that the PINOP has reasonable grounds to believe that the other person will stalk or intimidate them, or commit a ‘violence offence’ against them). Generally, this condition will not need to be proved where the PINOP is:
- A child under the age of 16
- A person with below average intelligence
- Someone who has been subjected to ‘personal violence’ (i.e. domestic violence) that is likely to recur, and the order is necessary to prevent the recurrence
If the applicant is unable to prove the necessary criteria on the balance of probabilities, the court will not grant an AVO. A good lawyer will therefore attempt to present evidence to the court that will preclude any of the above criteria from being made out. For example:
- By presenting evidence to prove that the applicant does not fear that the other person will stalk or intimidate them, or commit a ‘violence offence’ against them: For example, where the applicant continues to contact you after applying for an AVO. This may be achieved by collecting phone records, records of online conversations, and witness statements.
- By showing that the applicant does not have any reasonable grounds to fear you: Often, this can be done by showing that there were no grounds for the AVO to be made – for example, showing CCTV footage of the incident which triggered the application for the AVO, or through other evidence, such as phone records, records of online conversations, and witness statements.
- By showing that the feared conduct is not serious enough to justify the making of an AVO: This can be achieved by showing that the conduct complained about is trivial in nature and does not require an AVO.
If you do not stick to any of the conditions of your AVO, you may face harsh penalties.
For example, if the conditions of your AVO are to not contact the protected person in any way, you will be in breach of the AVO if you attempt to call them, communicate online with them, or see them in person.
To be found guilty of breaching an AVO, the prosecution must prove that you:
- Breached a condition or restriction of an AVO
- That you committed the breach knowingly (i.e. the breach was not accidental)
The maximum penalty for breaching an AVO is 2 years imprisonment and/or a $5,500 fine, so if you have been charged with contravening an AVO, it is important to speak to a lawyer who has experience representing clients in these matters.
A good lawyer will be able to advise whether you have a defence to the charges which could explain or justify your behaviour. If you raise a defence and it is accepted, you will be found ‘not guilty’ of breaching the AVO.
Examples of defences include:
- Where you did not realise or know that you were contravening the AVO
- Where you were not served with an AVO, or where you were not in court when the AVO was made
- Where you breached the AVO to attend mediation or to comply with a property recovery order
- Where you contravened the AVO to protect yourself, another person (such as your children), or your property (self-defence)
- Where you were coerced or threatened into breaching the AVO (for example, where the person who sought the AVO threatens to harm you if you do not agree to see them) – this is known as duress
- Where you had to breach the AVO to prevent serious injury or danger (necessity)
If you breach your AVO, your matter will be dealt with by the Local Court. If you plead or are found guilty of the charges, the magistrate has the power to impose a penalty. The penalties that could apply include:
- Section 10
- Good behaviour bond
- Community service order
- Intensive correction order
- Home detention
- Suspended sentence
- Full-time imprisonment
Ultimately, the type of penalty that you will receive will depend on the facts and circumstances of your case and the nature of the breach.
Our specialist criminal lawyers frequently represent clients in ‘contravene AVO’ matters and fight hard in every case to protect our clients’ rights by presenting all evidence in a compelling manner to bolster their case.
In many cases, our lawyers have been able to assist people in avoiding lengthy gaol sentences by persuading the magistrate to deal with ‘contravene AVO’ matters leniently, despite the law saying that someone who contravenes an AVO by using physical violence should go to gaol.
We consistently achieve these outstanding results in AVO cases – so you can rest assured that your freedom is in safe hands.
Because of the serious impact that an AVO may have on your personal and professional life, combined with the strong desire for police to actively prevent domestic violence by making AVOs, it is important to get a good lawyer on your side to defend you in your AVO matter.
Defending AVOs is a complex task which requires thorough organisation and preparation by a lawyer who has a proven track record in defending AVOs.
The dedicated lawyers at Sydney Criminal Lawyers have defended clients in thousands of AVO cases, and go above and beyond the call of duty in defending our clients’ rights.
In every case, our experienced lawyers strive to obtain all relevant evidence and information that can bolster your case – they will compile statements from yourself and other witnesses who support your side of the story, as well as any other documentation that will assist, such as phone and online records, family law documents, visa documents and CCTV footage.
We also attempt to have AVOs dropped by negotiating undertakings with the other side – these are promises made by each party not to interfere with each other.
In many situations, the hard work of our lawyers has resulted in AVO applications being withdrawn prior to the court date.
If your matter does proceed to court, our experienced advocates will fight to ensure that you receive the best possible outcome in your case, by effectively cross-examining all witnesses and presenting your case in a persuasive and favourable manner. In many instances, we have been able to have costs awarded to our clients by showing that the applicant was lying.
So, for the strongest possible defence in your AVO matter, call us today on (02) 9261 8881 and find out how we can help in your AVO case.