What is an AVO?

Apprehended Violence Orders (AVOs) aim to protect a person (the “protected person”) from violence, stalking, harassment or intimidation. These orders are made when a person fears for their safety and seeks to restrict the threatening person’s behaviour. AVOs are sometimes referred to colloquially as restraining orders and usually involve people in a close domestic relationship, but may include unrelated people such as neighbours.

There are two types of Apprehended Violence Orders:

 

Apprehended Domestic Violence Order (ADVO)

An ADVO is made if the people involved are in a domestic relationship. This may include being or having been in an intimate relationship, being related or living together.

 

Apprehended Personal Violence Order (APVO)

An APVO is made when the people involved are not related and do not have a domestic relationship. This may include being neighbours or working together.

 

AVO conditions NSW

An AVO in NSW will always include a mandatory condition which states that the defendant must not:

  • Assault or threaten the protected person.
  • Stalk, harass or intimidate the protected person.
  • Destroy or damage the property of the protected person.

Anyone in a domestic relationship with the protected person is also protected by these conditions, including children.

In some cases, further and stricter conditions may be included prohibiting the defendant from approaching the protected person or places where they live/work, or even from making contact with them. This includes physical contact or contacting them over the phone, internet, or through another person

The court can also impose any other condition as agreed by both parties or decided by the court.

 

How is an AVO obtained in NSW?

Applying for an AVO is easy. You can ask the police to apply for an AVO on your behalf, or the police may request a provisional AVO for your immediate protection if they fear for your safety. Complaints to the police do not have to be acted upon, but it is rare that they are not.  Alternatively, you can go directly to a Local Court and apply for an AVO yourself.

After an application for an AVO is made, both parties will have to attend court.  The court will impose the AVO if they are satisfied that the protected person has “reasonable grounds” to fear that the defendant will be violent, intimidate or stalk them.

 

Inappropriate use

While AVO applications are often justified alongside domestic violence charges, they can be used unnecessarily. Sometimes they arise from highly emotional responses, knee-jerk reactions or attempts at “payback”.

A common example of an inappropriate application for an AVO occurs in cases where rather than having genuine fears about safety, an AVO is applied for as a tactical manoeuvre in Family Court proceedings.

It is easy for someone to allege a breach of an AVO. This would generate a criminal offence and put you at risk of serious penalties including imprisonment.

 

Responding to an Apprehended Violence Order

If an AVO is made against you, your options include consenting to or defending the order.

 

Consenting to the AVO

One option is to consent to the AVO. It can save costs and having to take time off work to attend court. You can consent to an AVO without admitting the reasons that are alleged as grounds for the application.

However, there may be serious consequences of consenting to an AVO, and you should seek expert legal advice first.

 

Defending the AVO

You might believe that there is absolutely no need for an AVO, in which case you can elect for the matter to be set down for hearing. In some cases the matter can be settled without a formal AVO recorded.

 

Frequently Asked Questions

Why can defending an AVO be difficult?

An AVO lawyer can help you defend an AVO, but this job can be difficult for various reasons:

  • An application for an AVO is not a criminal proceeding but rather a civil proceeding, even when there are associated criminal charges. The Onus of Proof in civil proceedings is on the balance of probabilities, and it is therefore easier to prove the allegations than if the higher criminal standard of beyond reasonable doubt was imposed.
  • Applications are often taken out by police on behalf of the protected person, and you may be in a position where that person is legally represented by a police prosecutor.
  • There are often no witnesses to the allegations, and it is your word against that of someone else.

What is the impact of a breached AVO?

Penalties for breaching an Apprehended Violence Order can range from fines to up to two years imprisonment.

How long does an AVO last?

The relevant period is specified on the order, and is usually two years. If the protected person still fears for their safety, they can apply for the AVO to be extended.

Does an AVO show on a criminal record?

The AVO itself is not a criminal record or conviction but an order of the court. Sometimes people think that since it is simply an order, there is no harm or risk in consenting to the AVO. However, if you breach an AVO, you risk a criminal conviction and record.

Can an AVO be revoked or varied?

Yes. If there are good reasons why the AVO is no longer necessary or should be varied, then an application can be made to the Local Court. This may happen if the parties reconcile or when the protected party continues to contact the defendant suggesting that no protection is needed.

However, if the AVO was initiated by NSW Police, they will have standing to appear in an application to revoke or vary an AVO. This means that the court will consider the view of the police on the variation or revocation, as well as the views of the protected person and defendant.

What is an interim AVO?

The protected person or police can request that the court issue an interim (temporary) AVO to protect the person until the next court date. An interim AVO may be issued if the defendant doesn’t attend the first court date, or to cover the period between the first court date and the finalisation of the matter. An interim order can be opposed.

Can an undertaking be given instead of an AVO?

You can give an undertaking instead of an AVO, but only if both parties are willing and consent to this alternative.

An undertaking is a formal promise to the court. The defendant promises to comply with certain restrictions or obligations. The advantage of a mutual undertaking is two-fold. Generally, once undertakings are given the parties will comply with them; if they don’t, it may be easier to obtain a further AVO. Secondly, there is no criminal offence for breaching an undertaking whereas there is for breaching an AVO.

An undertaking is not legally enforceable, however, and the police or court may not accept your undertaking as sufficient protection for the protected person. Additionally, the protected person is under no obligation to accept the undertaking and if they are genuinely fearful, they are unlikely to agree.

How can we help?

We have over 55 years of experience defending domestic violence-related charges, which often involve AVOs.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.