How AVOs are issued
In NSW, Apprehended Violence Order (AVO) applications can be made either by police officers or by persons seeking to protect themselves from violence, stalking or intimidation. Police attending to domestic incidents often apply for a provisional AVO, which is an order that is in place until the matter first goes to court. Individuals seeking an AVO for their own protection must file an application with the court.
Both paths offer the potential for error. Violence does not need to have been committed for an AVO to be issued. As an example, when police attend a domestic incident where aggressive or intimidating behaviour is involved, and they believe a person may be at risk, their internal code of practice on domestic violence and AVOs requires them to make an application for an AVO. They do not need to have witnessed violence, or have any evidence of violence having been perpetrated. Nor do they need the person at risk to agree to an AVO – their suspicion or belief that a person is at risk of violence or intimidation requires them to take steps to ensure that person’s safety.
Why police sometimes get it wrong
It’s not surprising that some officers err on the side of caution – if a serious assault or worse occurred after they had decided an AVO was unnecessary, it would be understandable that more senior officers, the victim’s family and the community would question their decision.
However, it’s the somewhat grey area of what constitutes aggressive or intimidating behaviour that can lead to unnecessary AVOs which have potentially significant consequences on the persons affected. Two family members shouting at each other, even very loudly, doesn’t necessarily equate to either party fearing violence or feeling intimidated by the other. In reality, there may not be the slightest risk of violence occurring. Yet a neighbour hearing that argument won’t know that, and police officers who hear the shouting as they approach to investigate would almost certainly assume the situation had the potential to turn violent. The arguing couple may have difficulty convincing police that they were simply engaged in a heated discussion as people do from time to time. To the couple, the idea of an AVO might seem ridiculous. To the police, departing without taking any action might be a risk they’re not willing to take.
Frivolous vexatious AVOs
Frivolous vexatious AVOs may be issued based on false or exaggerated allegations. It’s an unfortunate reality that false AVO claims in NSW are sometimes used as a tactic in custody matters, or are taken out for the purpose of creating trouble for the person concerned.
What can you do?
The consequences of an unwarranted or vexatious AVO can extend well past the embarrassment of attending court. Seeking advice from a defence lawyer as soon as the AVO is issued is strongly recommended. In some cases, a questionable AVO can be revoked early on – for example, a submission can be put to police to revoke an AVO they’ve taken out, although this approach is often not successful. An AVO can also be contested in court, where justification for it can then be examined.
Even if you are confident an AVO will be revoked by police or dismissed at court, it’s important that you do not breach the conditions of an AVO in the meantime. Instead, speak to one of our expert defence lawyers as soon as possible to discuss the best way to proceed in the circumstances.
