What is an AVO in NSW and how does it affect me?

Have you ever heard the term AVO? It’s likely that you have probably known someone (or known of someone) who has been subject to an “AVO”. AVO is an acronym for “Apprehended Violence Order”, which is a type of protective order in NSW.

There are two types of AVO in NSW, the Apprehended Domestic Violence Order (ADVO), and Apprehended Personal Violence Order (APVO) but to save time, most people still just refer to them as AVOs.

Courts have the power to make AVOs under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and they can be made with or without associated criminal charges. 

What’s the difference?

An ADVO is an order that is made where the person in need of protection (PINOP) and the defendant, are (or were) in a domestic relationship. The definition of the domestic relationship can be quite broad but generally extends to people who are (or were) in an intimate relationship, people who are (or were) family members, or people live (or lived) together at some point in time. For everyone else (such as friends you do not or have not ever lived with, strangers, work colleagues and the like), an APVO would be the more appropriate order.

How is an order made?

Firstly, the order can be initiated in two ways:

• By police

• Privately (by the PINOP)

If police make an application, a “provisional order” is issued until the matter comes to court. If, upon being heard in Court, the matter is to be contested, the Court will prepare the matter for hearing and the order will become an “interim order” until final determination.

If the police are not satisfied of the evidence to make an application themselves, a PINOP can speak to the registrar of a court to make an application themselves. These “private” AVO’s are reasonably rare and take a lower priority in the Court list than criminal matters (particularly if a defendant is in custody).

At Mitchell & Co Lawyers, we are experts in both defending and prosecuting APVOs so if you find yourself the victim of assault, intimidation or harassment for which the police refuse to take action of apply for an APVO (or ADVO) on your behalf, we can assist you to prosecute these yourself.

Significantly though, if you find you the defendant in a “private” APVO or ADVO, and are successful in defending the application; you can also have some or all the legal costs incurred, paid for by the other party.  At Mitchell and Co Lawyers, we have decades of experience in obtaining successful costs orders in these circumstances.

Finally, if an AVO reaches the Court (and is not dismissed), an will be made for a period determined by the Court, which is usually 2 years. After that time, the police or PINOP can seek an extension if they wish.

What’s the point?

An AVO is a protective (provisional, interim or final) order that restrains the person the order is made against, from doing certain things. There are a number of ‘standard orders’ which may restrict the defendant from approaching the PINOP in the street, at work or at home, from contacting them unless through a lawyer, or from being in the presence of the PINOP within a certain period of drinking alcohol or consuming drugs. The most common order is known as “order 1”, which is mandatory on all AVO’s. Order 1 prevents a defendant from assaulting or threatening, stalking, harassing or intimidating, and deliberately or recklessly destroying or damaging anything that belongs to the PINOP and anyone they have a domestic relationship with (there’s that phrase again!).

The court should only impose the least restrictive orders required to protect the reasonable fears of the PINOP.

The orders, when made, create a legal obligation on the defendant, to abide by the conditions of the order. If the conditions are breached, each breach constitutes a criminal offence, carrying a term of up to 2 years imprisonment. The Court views breaches very seriously and if a breach if found to be established by the Court (and is serious enough), the Court decide to refuse you bail, as you will already have been shown to be non-compliant with the Court’s Orders.

Breaches of AVOs which are found/proved to involved actual violence are dealt with (pursuant to s.14(4) of the Crimes (Domestic & Personal Violence) Act 2007) by the imposition of a sentence of imprisonment, unless otherwise ordered.

What are the implications of an AVO?

Firstly, an AVO is not a criminal offence in and of itself (though it can certainly lead to criminal charges as described above). An AVO won’t appear on your criminal record as a disclosable outcome but it will continue to show on police records so they will know you are subject to an order.

The main implications of an AVO will be on other areas of your life. If you have a gun licence or a security licence, it may be the case that the licence is revoked pending final determination of the hearing, or if the orders are final (or consented to), may be revoked until you are no longer subject to an order. If the AVO relates to children, it could affect your Working With Children Check and your employment in some areas such as education or daycare.

AVOs are also required to be disclosed in family Law proceedings.

So what should I do if someone makes an application against me?

The good thing is that you have a couple of options.

Firstly, if you are facing an AVO with criminal charges, the AVO usually won’t be dealt with until after the criminal proceedings are dealt with. If you are able to defend your criminal charges successfully, there is a chance the AVO may also be dismissed. If you are convicted of, or plead guilty to a personal violence offence, the Court must make an order unless the Court is satisfied that it is not required (such as if there is already another AVO in place).

If you are facing an AVO (with no associated criminal charges), you have 3 options:

• If the AVO is of no consequence (that is, that you don’t have a licence or employment that may be affected), you can consent to the AVO, usually, on a “without admissions” basis.

• If the AVO is of no consequence but you do not like the conditions, you can try to negotiate (or have your lawyer negotiate) with police to get the conditions in a more agreeable position before consenting; or

• If you can’t agree on conditions, or if the AVO will affect your life or employment, you can contest the AVO and take the matter to a hearing.

At hearing, the Court needs to be satisfied ‘on the balance of probabilities’ (which is a lower standard of proof than is ordinarily required to prove a criminal offence), that the PINOP has reasonable grounds to fear (and does in fact fear) certain conduct of the defendant at the time the order is to be made.

This is a low burden of proof, however, in “one on one” cases (that is cases with one PINOP, one defendant, and no other witnesses), strong evidence that the allegations are either untrue, or which suggests that alleged fears are remote and or unreasonable, regularly can convince Court as to need that orders need not be made. For example, if the application was made privately 12 months before the hearing date and there has been no contact whatsoever between the parties in that time, the Court may not be satisfied that the PINOP has fears sufficient at the time of the hearing such that an order should be made.

If the defendant is unsuccessful at hearing, the order will be made for the period and in the conditions that the Court determines.

Regardless of the situation, if you find yourself faced with an AVO, either with or without criminal charges, you need to ensure that you get specialist advice and experienced representation for your matter. You should give the team at Mitchell and Co Lawyers a call on (02) 8507 2091 as soon as you can to navigate your way through the legal process.