Legal Guide to AVOs Against Children in NSW: Apprehended Violence Orders

Introduction

The law gives us certain safeguards to protect ourselves or others, but – like most things – it becomes a little more complex with children. Apprehended Violence Orders (AVOs) are court-issued orders designed to protect individuals from violence, harassment, or intimidation. When children are involved—either as defendants or protected persons—the legal process and implications take on unique dimensions. Understanding how AVOs apply to children is crucial for families, legal professionals, and support services navigating these complex situations.

This guide provides a comprehensive overview of AVOs involving children in New South Wales, including the court processes, types of orders, and support services available. It also addresses key considerations such as breaches of orders under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), legal consequences, and the importance of seeking professional legal advice. By exploring these topics, this guide aims to clarify the legal framework and offer practical insights for those affected by AVOs involving children.

Understanding AVOs for Children

Definition and Purpose of AVOs for Children

An Apprehended Violence Order (AVO) is a court‑issued order designed to protect individuals from violence, intimidation, or harassment. When children are involved, AVOs can be particularly complex and sensitive.

AVOs can be either:

• Apprehended Domestic Violence Orders (ADVOs)
• Apprehended Personal Violence Orders (APVOs)

depending on the nature of the relationship between the parties involved. Moreover, the primary purpose of an AVO involving children is to protect them from harm, whether they are the victim or the defendant. To ensure safety and address underlying issues, AVOs may include conditions such as:

• preventing contact
• requiring counselling
• imposing other restrictions

Differences in Process for Children and Adults

The process for AVOs involving children differs significantly from adult cases. Below are the key differences:

• Court Setting: AVO cases with children are heard in the Children’s Court, which specialises in matters involving minors. In contrast, adult AVO cases are typically heard in the Local Court.
• Legal Representation: Children are entitled to free legal advice from Legal Aid NSW, and a duty solicitor is available in the Children’s Court to assist them.
• Focus on Counselling and Treatment: The Children’s Court often emphasises counselling and treatment for young defendants, requiring participation in interventions that address the issues leading to the AVO application.
• Application Restrictions: If a child is under 16, only the police can apply for an AVO on their behalf, whereas adults may apply for an AVO themselves.
• Prohibited Contact Conditions: AVOs involving children often bar the defendant from contacting the protected person or any children with whom they have a domestic relationship. However, alternative conditions may be negotiated to allow contact in specific circumstances, such as through a lawyer or for mediation purposes.

Furthermore, the Children’s Court’s focus on counselling and treatment reflects its commitment to addressing the root causes of behaviour and helping young people develop positive strategies for managing conflicts.

The Court Process for AVOs Involving Children

Court Procedures for Child Defendants

When a child is the defendant in an Apprehended Violence Order (AVO) application, the Children’s Court prioritises their welfare and rehabilitation. The court’s approach focuses on helping the child understand the consequences of their actions and develop better behaviours rather than punishment.

The Children’s Court may offer several options for child defendants:

• Counselling or Treatment: The court may inquire if the child is willing to participate in counselling or other interventions to address the issues leading to the AVO application. If agreed, the matter is adjourned for three months to allow the child to engage in these programs.
• Interim Orders: An interim AVO may be put in place during the adjournment period. If the child complies with the order and no breaches occur, the application might be withdrawn.
• Support Persons: The child can have a support person, such as a parent or guardian, present in the courtroom to provide assistance and reassurance.

Court Procedures for Child Protected Persons

When children are listed as protected persons in an AVO application, the court implements specific measures to ensure their safety and well-being. The court’s primary goal is to create a safe environment for the child while balancing the legal rights of all parties involved.

The process includes several key elements:

• Police Involvement: AVO applications involving children as protected persons are typically initiated by the police, who assess the situation to determine if an AVO is necessary.
• Automatic Inclusion of Siblings: The court may extend the AVO to include other children in the same household to provide comprehensive protection.
• Conditions of the AVO: The AVO may include conditions such as prohibiting contact with the protected person, except through legal representation. In some cases, alternative conditions may be negotiated if they align with family law arrangements.

While children can give evidence, the courts will normally seek to avoid this unless it is absolutely necessary, since the intimidating and scary nature of doing this is recognised. However, if they must give evidence, it will be through a pre-recorded statement. Importantly, if you wish to cross-examine this evidence, only a legal practitioner is permitted to question children, who will be on CCTV, not actually in the room. Therefore, it is necessary to have reliable and professional legal representation on your side.

The entire process is designed to be sensitive to the child’s needs and to avoid causing unnecessary trauma or disruption to their life, whether they are defendants or protected persons in AVO proceedings.

Interim and Final AVO Orders for Children

Interim AVO Orders and Conditions

Interim AVO orders are temporary court orders issued while a final AVO application is being processed. Specifically, these orders aim to provide immediate protection to the protected person, giving the court time to gather more information or for the child to engage in counselling or other interventions.

Key points about interim AVO orders include:

• Duration: Typically lasts three months if the child agrees to counselling, or five months if no suitable services are available or the child declines participation.
• Conditions: May require the child to refrain from contacting the protected person, avoid certain locations, or participate in counselling.
• Withdrawal: If no breaches occur during the interim period, the application may be withdrawn and the matter dismissed.

Final AVO Orders and Duration Specifications

After considering all evidence and circumstances, the court may issue a final AVO order. Unlike interim orders, final orders are more permanent and must specify an end date based on the seriousness of the case and the child’s situation.

Key points about final AVO orders include:

• Duration: Must have a defined end date and cannot be indefinite.
• Conditions: Similar to interim orders, these may prohibit contact with the protected person or mandate counselling.
• Process: If the child does not agree to the final order, the matter may proceed to a defended hearing, where the court will decide based on the evidence presented.

Both interim and final AVO orders play a crucial role in safeguarding the protected person’s safety and well‑being, while ensuring the child’s rights and circumstances are duly considered.

Breaches of AVO Orders by Children

Legal Consequences for Breaching an AVO

Breaching an Apprehended Violence Order (AVO) is a serious criminal offence in New South Wales. When a child breaches an AVO, they face a range of legal consequences:

• Criminal Charges: A breach is treated as a criminal offence, carrying penalties such as fines and imprisonment.
• Maximum Penalty: The highest possible punishment is two years’ imprisonment and/or a 50 penalty unit ($5,500) fine under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). If the breach was intended to cause physical or mental harm to the protected person, or for them to fear for their safety or the safety of others, the maximum penalty is three years’ imprisonment and/or a 100 penalty unit ($11,000) fine. If a breach has occurred at least twice within a period of 28 days before their last breach, whether or not the order relates to the same person, the maximum penalty is 5 years’ imprisonment and/or a 150 penalty unit ($16,500) fine. These are significant offences with significant penalties to match.
• Court Process: If the breach is contested, the case proceeds to a defended hearing in the Children’s Court, where the prosecution must prove the breach beyond a reasonable doubt.
• Impact on Future: A conviction can lead to long-term consequences, including social stigma and disadvantages in areas like education and employment.

Social and Personal Impact of Breaches

In addition to legal repercussions, breaching an AVO can have significant social and personal impacts on a child:

• Social Alienation: The breach may lead to social isolation, making it difficult for the child to interact with peers and maintain relationships.
• Future Disadvantages: A conviction can hinder opportunities in early adulthood, such as securing certain jobs or travelling abroad.
• Impact on Family: Violations of an AVO can strain family relationships and complicate co‑parenting arrangements, especially in ongoing family law matters.
• Long‑term Consequences: Even after the conviction is spent, the stigma can persist, affecting the child’s personal and professional life.

If you or someone you know is facing an AVO breach, it is crucial to seek legal advice from experienced criminal defence lawyers. Contact Daoud Legal today for specialised guidance and support tailored to your needs.

Support Services and Legal Representation for Children

Availability of Legal Aid and Duty Solicitors

Children subject to AVOs have access to free legal advice, which is crucial for navigating the legal system. In particular:

• Duty solicitors are available in the Children’s Court to provide immediate assistance.
• These solicitors ensure young defendants understand their rights and options.
• Legal aid can be sought when a child is named as a defendant or as a protected person in an AVO application.

Together, these measures help protect children’s rights and address their needs throughout the proceedings. The courts are a daunting place for any of us, so safeguards are set up to make it easier for children.

Counselling and Intervention Support Services

The court often emphasises counselling and intervention programs as part of the AVO process. These services aim to address the underlying issues that led to the application, offering constructive alternatives to harsher penalties.

Counselling programs may focus on:

• Anger management
• Family relationship dynamics
• Other relevant behavioural issues

Participation in such programs can demonstrate a commitment to positive change and may influence the court’s decision regarding the AVO terms. Additionally, mediation services are available to help resolve conflicts in a constructive manner, promoting a safer and more supportive environment for all parties involved.

Conclusion

This guide has provided a comprehensive overview of Apprehended Violence Orders (AVOs) involving children in New South Wales. It covered the unique legal processes, types of orders, and support services available to ensure the safety and well-being of all parties involved. Understanding these aspects is crucial for families, legal professionals, and support services navigating these complex situations.

If you or someone you know is involved in an AVO matter, it is essential to seek professional legal advice. Contact Daoud Legal, a trusted criminal law firm in Sydney, for specialised guidance and support tailored to your needs. Their expertise in handling AVO cases can help you navigate the legal process effectively and ensure the best possible outcome.

Frequently Asked Questions