Nowadays it has become very common that families seek police assistance for simple matters without even realising the aftermath of such beginnings. The moment police get involved, an AVO will follow, which will further complicate the relationship. Therefore, it is important for men and women to understand the mechanisms of AVO to avoid violent behaviour.
First of all, what is an AVO?
AVO is a Court Order imposed to protect people from others act violently towards them, or cause them to fear for their safety. The person seeking police help is the Plaintiff and the person against whom the AVO is made is the defendant. An AVO will list things that the defendant must not do – such as not to go near , not assault, threaten, harass or intimidate the protected person. These are detailed as ‘conditions’ on the AVO document. There are two types of AVOs namely, Apprehended Domestic Violence Orders (ADVO), and Apprehended Personal Violence orders (APVO).An ADVO involves people who are in ‘domestic relationship’ – who had or have a ‘domestic relationship’ with each other. It includes a relative, partner, husband, wife or roommate or the ex-partner of the protected person. On the contrary an APVO is made if people are not related and do not have any domestic or intimate relationship. It may involve any one outside family or relationship such as a neighbour, friend or co-worker.
What are the of conditions normally found in an AVO?
Mostly three ‘must’ conditions are included when an AVO is made. They are called ‘mandatory’ conditions.
They are that the defendant must not:
- Assault or threaten the protected person
- Stalk, harass or intimidate the protected person
- Intentionally or recklessly destroy or damage the protected person’s property.
These conditions will cover both, defendants who has a ‘domestic relationship’ with the protected person or defendants not in any relationship with the protected person. In addition, The Court can also make other orders – such as ‘prohibiting or restricting’ you from approaching the protected person. This can mean that you may be stopped from:
- Going near the protected person at all
- Going near the protected person’s home, work or other premises
- Going near the protected person within 12 hours after you drink alcohol or use illicit substances, or
- Doing all the above.
Other than these standard conditions, the Court can also make any other orders it thinks are necessary for the safety and protection of the protected person.
How will the Court decide making an AVO Order?
The Court will make an AVO if the Court is satisfied under the below circumstances:
- The protected person has ‘reasonable grounds’ to fear that you will be violent toward them, intimidate or stalk them, and
- That fear is actually existing.
- If the protected person is a child, the Court only looks at if there are ‘reasonable grounds’ to fear you.
The AVO will indicate a date when the defendant needs to go to court, which is ‘mention’ date.
The defendant should go to court on the mention date as it is a court order. If the defendant does not go an AVO will be made against the defendant without the person.
Once the defendant goes to court he or she can either:
‘consent’ (agree) to the AVO or not consent to the AVO (not agree). One can consent, even if he or she doesn’t agree with the reasons written in the application. If the defendant does not consent to the AVO (not agree), the case will be adjourned (postponed for hearing on another date) for a ‘final hearing’.
However, before the case is adjourned, the Court will need to decide if it should make an ‘interim’ (temporary) AVO against you until the final hearing date. There may need to be an ‘interim hearing’ to decide this. If the defendant is charged with a ‘serious offence’, such as a domestic violence offence, the Court will probably make an interim AVO against you to protect the alleged victim.
On hearing date the court will hear all the evidences, and then decide if it will make the AVO or not.
Period of AVO
The AVO will be made for however long the parties agree to, or however long the Court decides.
This hearing is only to decide if an interim AVO should be made, not the final orders.
The Court will look at:
- The reasons stated in the application about why the applicant says the order should be made against you
- Any written statements
- Any evidence that the protected person, you or other person gives in the witness box
- Submissions that either party (or their lawyers) make.
Evidence in the witness box
There will be opportunity for the applicant to produce witness giving evidence in the witness box, and also the defendant or his or her lawyer will be given opportunity to cross-examine them . Anyone who made a written statement may be cross-examined about what is in their statements. When the court decides to make an interim AVO, it will decide about the required conditions to be imposed in the interim AVO. The case will then be adjourned for a final hearing. If the court decides not to make an interim AVO, the case will be adjourned for a final hearing straight away.
Serving witness statements
The Court will order defendant and the protected person to ‘serve’ the defendant r written statements and any of the defendant’s witnesses’ written statements on each other. The defendant can do this by leaving the statements at the court Registry to be collected by the other party. The defendant will usually have to serve the defendant’s statements four weeks prior to the final hearing. The protected person will usually have to do this 2 weeks before.
The court will look at the evidence from the witnesses, any documents, and the submissions made by both sides, and then decide whether or not to make the final AVO.If the Court decides not to make the AVO, the application will be dismissed and the case will be over.If the Court decides it will make the AVO, it will then decide what conditions to put in it.If the defendant have pleaded guilty to, or if a court found the defendant guilty of, a ‘serious offence’, the court will probably make a final AVO.
AVO ‘s effect on defendant’s character and police records
If an AVO is made against the defendant, the defendant will not get a criminal record. However, if the defendant have an AVO this could affect things like the defendant’s future employment and the defendant family law case and sometimes in the Citizenship or Permanent residence applications.
When AVO conditions are not followed
If the defendant does not follow a court order this is called as ‘breaching’ an AVO. If the defendant breach an AVO that is a criminal offence and the defendant can be charged with breaching the AVO. The maximum penalty for breaching an AVO is 2 years’ imprisonment or a fine up to $5500, or both.
Legal Aid NSW does not usually represent defendants in AVO cases. Only under ‘exceptional circumstances’ defendants may get financial assistance to engage a lawyer.