Facing violence, threats, stalking, intimidation, or harassment from another person can be a truly scary and upsetting experience. In New South Wales, people dealing with these situations can find safety with AVOs. These are court orders that aim to protect individuals from future harm by placing limits on the actions of the person causing trouble.
This comprehensive guide will provide you with a thorough understanding of AVOs in NSW. We’ll explore the different types of AVOs available, the grounds for obtaining them, and the application process. Additionally, we’ll delve into the conditions and orders that can be included in an AVO, the consequences of breaching an order, and the options for defending against an AVO application. By the end of this article, you’ll be well-equipped with the knowledge needed to navigate the legal system and ensure your safety and well-being.
What is an AVO?
An Apprehended Violence Order is a court order designed to protect individuals from violence, intimidation, harassment, or stalking. AVOs prohibit the person named in the order (the defendant) from engaging in specified conduct against the protected person.
There are two main types of AVOs in NSW:
Apprehended Domestic Violence Orders (ADVOs)
ADVOs are used when the person in need of protection and the defendant are in a domestic relationship. This includes:
- Current or former spouses or de facto partners
- People who have or have had an intimate personal relationship
- People living in the same household
- Relatives, such as parents, children, or siblings
- People in a relationship of care, such as paid carers
An important feature of ADVOs is that they automatically extend to protect any person with whom the protected person has a domestic relationship, such as their children. This means a separate ADVO is not required for each child.
Apprehended Personal Violence Orders (APVOs)
APVOs are used when the person in need of protection and the defendant are not in a domestic relationship. This could include:
- Neighbours or flatmates
- Co-workers
- Friends or acquaintances
- Strangers
Unlike ADVOs, APVOs do not automatically protect others close to the protected person. If protection is needed for additional people, like children, they must be specifically named in the order.
Both ADVOs and APVOs serve the vital purpose of ensuring the safety and well-being of individuals at risk of violence or harassment. The type of AVO appropriate in a given situation depends on the relationship between the parties involved. Understanding these differences is crucial for those seeking protection to make informed decisions about which path to pursue.
The AVO Application Process
Applying for an AVO in NSW can be done through the police or by private application to the Local Court. The process varies depending on the type of application and the urgency of the situation.
Police Applications
Police can apply for an AVO on behalf of a person in need of protection (PINOP) if they believe an order is necessary to ensure their safety. This is common in domestic violence situations.
The steps for a police AVO application typically include:
- The police investigate the situation and gather evidence, which may involve interviewing the PINOP, the defendant, and any witnesses.
- If the police determine there are reasonable grounds for an AVO, they can apply for a provisional order to provide immediate protection. This stays in place until the matter goes to court.
- The police serve the provisional order and court attendance notice on the defendant, informing them of the AVO application and court date.
- On the first court date, the provisional order can be extended as an interim AVO until the matter is finalised.
Police play a central role in gathering evidence and presenting the case in court on behalf of the PINOP in these applications.
Private Applications
Individuals can also apply for an AVO privately through the Local Court registry. This may be appropriate if the police haven’t applied for an order on their behalf.
The process for a private AVO application involves:
- The applicant (PINOP) completes an application form detailing their fears and the reasons they need protection.
- The application is lodged at the Local Court registry, and a Registrar or Magistrate assesses whether there are reasonable grounds to grant a provisional order.
- If a provisional order is made, it must be served on the defendant along with a court attendance notice. The applicant is responsible for arranging service, not the police.
- Both parties attend court on the nominated date. The defendant can choose to consent to (agree to) the order or contest it. If contested, the matter may proceed to a hearing where both sides present evidence.
In private applications, the applicant runs their own case and is responsible for presenting evidence to satisfy the court an AVO is necessary. They may have a lawyer represent them, but this isn’t required.
Regardless of the application type, the court can make an interim AVO to protect the PINOP until the matter is finalised. Final AVOs can be made by consent without admissions or after a contested hearing if the court is satisfied the PINOP fears violence, stalking, or intimidation, and those fears are reasonable.
Understanding the AVO application process is crucial for both PINOPs and defendants. Seeking legal advice can provide clarity on gathering evidence, court procedure, and the consequences of an order.
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AVO Conditions and Orders
AVOs in NSW come with a set of conditions that the defendant must follow. These conditions are designed to protect the PINOP from violence, harassment, intimidation, or stalking. The specific conditions included in an AVO will depend on the unique circumstances of each case.
Mandatory Orders
Every AVO includes three mandatory orders, often referred to as the “standard orders” or “Orders about behaviour.” These orders prohibit the defendant from engaging in the following conduct towards the protected person or anyone they have a domestic relationship with:
- Assaulting or threatening them
- Stalking, harassing, or intimidating them
- Intentionally or recklessly destroying or damaging any property that belongs to or is in the possession of the protected person
These mandatory orders apply to all AVOs and emphasise existing laws against such conduct. Breaching these orders can result in criminal charges, in addition to the offence of contravening an AVO.
Additional Orders
Depending on the circumstances that led to the AVO application, the court may impose additional orders to ensure the safety and protection of the PINOP. These additional orders can be categorised into orders relating to contact, family law and parenting, movement, and weapons.
Some examples of additional orders include:
- Prohibiting the defendant from approaching or contacting the protected person in any way, unless through a lawyer
- Restricting the defendant’s ability to go near specified locations, such as the protected person’s home, workplace, school, or childcare facility
- Prohibiting the defendant from approaching the protected person within 12 hours of consuming alcohol or illicit drugs
- Prohibiting the defendant from trying to locate the protected person, except as ordered by a court
- Allowing contact only in specific circumstances related to family law, parenting arrangements, or court-approved counselling or mediation
- Prohibiting the defendant from living at the same address as the protected person or any other specified place
- Requiring the defendant to stay a certain distance away from the protected person’s home or workplace
- Prohibiting the defendant from possessing any firearms or prohibited weapons
Breaching any of these additional orders is a criminal offence, just like breaching the mandatory orders. The maximum penalty for contravening an AVO in NSW is imprisonment for 2 years and/or a fine of $5,500.
It’s crucial for defendants to understand and comply with all the conditions of their AVO, even if they disagree with the grounds of the application. If the defendant believes the conditions are unreasonable or oppressive, they should seek legal advice on the possibility of varying or revoking the order, rather than simply breaching the conditions.
Consequences of Breaching an AVO
Breaching an AVO is a serious criminal offence in NSW, carrying significant legal penalties. If you are found to have violated any of the conditions outlined in your AVO, you may face severe consequences that can impact various aspects of your life.
Criminal Penalties
Breaching an AVO is a criminal offence under Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). If you are convicted of contravening an AVO, you could face the following penalties:
- Imprisonment for up to 2 years
- A fine of up to $5,500
- Both imprisonment and a fine
The severity of the penalty will depend on factors such as:
- The nature and seriousness of the breach
- Whether you have any prior convictions for breaching AVOs
- The impact on the protected person
In cases where the breach involves violence, the court is required to consider imposing a prison sentence unless there are compelling reasons not to.
For example, if you are subject to an AVO that prohibits you from contacting your ex-partner, and you send them multiple threatening text messages, you could be charged with breaching the AVO. If convicted, you may face a significant fine or even imprisonment, depending on the severity and context of your actions.
Impact on Other Areas of Life
In addition to criminal penalties, breaching an AVO can have far-reaching consequences in other areas of your life:
- Employment: A criminal conviction for breaching an AVO may appear on your criminal record, which could affect your ability to obtain or maintain employment in certain industries.
- Family law matters: If you are involved in family law proceedings, such as child custody disputes, a breach of an AVO may be considered by the court when making decisions about parenting arrangements.
- Reputation: Being convicted of breaching an AVO can harm your personal and professional reputation, as it may be seen as a demonstration of your inability to abide by court orders and respect the law.
- Future AVOs: If you breach an AVO, it may be more difficult to challenge future AVOs taken out against you, as your past conduct will be taken into account by the court.
It’s crucial to understand the seriousness of breaching an AVO and the potential consequences you may face. If you are unsure about the conditions of your AVO or need guidance on complying with the order, it’s essential to seek legal advice from an experienced criminal lawyer who can help you navigate this complex situation.
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Defending Against an AVO
If you have been served with an AVO application, you have several options for responding and defending against the order. The two main ways to defend against an AVO are:
Consent Without Admissions
One option is to consent to the AVO being made final without admitting to the allegations made against you. This means you agree to abide by the conditions and restrictions in the AVO, but you do not admit that you engaged in the alleged conduct or that the protected person’s fears are reasonable.
Consenting without admissions allows the AVO to be finalised without the need for a contested hearing. It can be a pragmatic approach if you want the matter resolved quickly, even if you dispute the allegations. However, it’s important to understand that the AVO will still be made and the conditions will be legally enforceable.
Some key points about consenting without admissions:
- The AVO is made final but you do not admit fault or wrongdoing
- You agree to follow all the conditions and orders in the AVO
- It avoids the time, stress and uncertainty of a contested hearing
- The protected person does not need to prove their case in court
- Breaching the AVO is still a criminal offence even if you consented
Before consenting to an AVO, it’s advisable to seek independent legal advice to understand the implications and ensure it’s the right approach for your situation.
Contesting the AVO
The other main option is to contest the AVO application and argue against the need for the order at a defended hearing. This involves presenting your case in court and challenging the evidence of the protected person.
If you believe the allegations are false, exaggerated or do not warrant the making of an AVO, you may choose to defend the application. At a contested hearing, the protected person (or police if they applied for the AVO) bears the onus of proving on the balance of probabilities that:
- The protected person fears you will engage in violence, stalking, harassment or intimidation against them, and
- Those fears are reasonable in the circumstances, and
- The making of the AVO is appropriate in the circumstances
Both sides have the opportunity to give evidence, call witnesses and present relevant material to the court. After considering all the evidence, the magistrate will decide whether to make the AVO or dismiss the application.
Some important considerations when contesting an AVO:
- You will need to prepare and present your defence in court
- The process can be lengthy, stressful and costly
- There is a risk the AVO will be made if the court accepts the protected person’s case
- If the AVO is made after a hearing, the court may be more likely to impose more restrictive conditions than if you had consented
- If the application is dismissed, you may be able to seek legal costs from the other party
Contesting an AVO is a significant undertaking. Having an experienced lawyer assist you in building your defence and advocating for you in court can be invaluable. They can advise you on the strengths and weaknesses of your case and help you decide on the best path forward.
Ultimately, whether to consent to or contest an AVO is a personal decision that depends on your individual circumstances. Understanding your options and getting proper legal guidance is essential to protecting your rights and achieving the best possible outcome.
Conclusion
AVOs play a crucial role in protecting individuals from violence, threats, stalking, intimidation, or harassment in New South Wales. Understanding the different types of AVOs, the application process, and the potential consequences is essential for anyone involved in an AVO matter, whether as a protected person or a defendant.
This comprehensive guide has provided an overview of the key aspects of AVOs, including the distinction between ADVOs and APVOs, the steps involved in obtaining an AVO, and the various conditions that may be imposed. By familiarising yourself with this information, you can make informed decisions and effectively navigate the legal system to ensure your safety and well-being.