APPREHENDED VIOLENCE ORDERS (AVOs) | APPREHENDED DOMESTIC VIOLENCE ORDERS (ADVO)
WHAT IS AN APPREHENDED VIOLENCE ORDER (AVO)?
Apprehended Violence Orders (AVOs) are civil orders which aims to modify the behaviour of an individual to protect another person from violence or abuse directed towards them from the particular individual. In NSW, AVOs are governed by Crimes (Domestic and Personal Violence) Act 2007 (CDPVA).
TYPES OF APPREHENDED VIOLENCE ORDERS (AVOs)
APPREHENDED DOMESTIC VIOLENCE ORDERS | ADVO
Apprehended Domestic Violence Orders (ADVO) apply to people who are or were in a domestic relationship.
APPREHENDED PERSONAL VIOLENCE ORDER | APVO
Apprehended Personal Violence Orders (APVO) apply to people who are not in a domestic relationship.
DEFINITION OF DOMESTIC RELATIONSHIP
Section 5 CDPVA defines the following as people in a domestic relationship:
- Partners whether married or de facto, or
- People in intimate personal relationship, or
- People living in or having lived in the same household, or
- Relatives.
CPDVA also defines other relationships as being domestic.
WHO CAN APPLY?
An individual can apply for an Apprehended Violence Orders (AVO) by application to the Local Court or the CDPVA allows NSW Police to apply on behalf of person in need of protection (PINOP).
The NSW Police have the power to apply to the Local Court for an AVO and issue a provisional AVO which will be enforceable against the receiving party (Defendant) until the matter is finalised by the Local Court.
WHAT IS THE COURT PROCESS?
When the Provisional Apprehended Violence Order (AVO) or the application for the AVO is served on the Defendant, the Defendant must attend Court on the specified date.
On the first Court date, the Defendant has the following options:
- Consent, without any admissions, to the making of the AVO on a final basis for a period of time, or
- Contest the making of the AVO, or
- Seek a short adjournment to obtain legal advice.
If the Defendant contests the AVO, the Court will usually make orders for filing and service of statements and evidence which is usually in the following manner:
- Applicant to file and serve their evidence within 2 weeks,
- Defendant to file and serve their evidence within a further 2 weeks, and
- The matter is listed for Compliance mention within a further week.
At the Compliance mention, if the Court is satisfied that the parties have filed and served their evidence, the Court will list the matter for hearing.
WHAT IS THE TEST FOR MAKING AN AVO?
At the hearing, the Court takes evidence in chief by way of the tender of the written statements. The parties can then cross examine the authors of the statements.
When determining whether or not to make an AVO, the Courts consider whether:
On the balance of probabilities, the person has reasonable grounds to fear and in fact fears commission of domestic violence or personal violence offence against them.
If satisfied, the Court will make the AVO and impose the mandatory condition and any further conditions as deemed appropriate.
The mandatory condition of any AVO is:
- The Defendant must not do any of the following to the protected person or anyone the protected person has a domestic relationship with:
- assault or threaten them,
- stalk, harass or intimidate them, and
intentionally or recklessly destroy or damage any property that belongs to or harm any animal that is in the possession of them.
BREACHES OF AVO CONDITIONS
The Court does not record the making of an AVO in the Defendant’s criminal history as it is not a criminal offence. However, breaches of AVO conditions may constitute a criminal offence which is punishable by a maximum sentence of up to 2 years jail and/or fines of up to $5,500.
If the Defendant breaches an AVO by an act of violence, the Courts must impose a custodial sentence on finding of guilt unless the Court orders otherwise.
An ADVO may also impact any family law proceeding between the parties.
VARIATION OF AVO
Any party to an AVO, in certain circumstances, may make a AVO variation application to the Local Court. The Local Court will consider the merits of the variation application and may either vary the AVO or dismiss the variation application.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
