What is an Apprehended Violence Order (AVO)?

Apprehended Violence Orders (AVOs) are meant to exist to prevent physical violence, stalking, harassment and intimidation of a person (the PINOPperson in need of protection) by another – usually involving people from a prior or current domestic relationship, but may involve unrelated people who do not have a domestic relationship, such as neighbours. They are sometimes also colloquially known as restraining orders.

The intention behind the legislation is good. Some people legitimately need protection just as some people need a Court Order to `behave’.

The AVO itself is not a criminal record or conviction – merely an Order of the Court. Sometimes people think that since the AVO is simply an Order, there is no harm or risk in consenting to the AVO being made. How wrong could you be?

 

How is an Apprehended Violence Order (AVO) obtained?

The problem with AVOs is that they are so simple to obtain and are often used unnecessarily. Obtaining an AVO, at least on a provisional basis, is as easy as making a complaint to a Court or to a police officer. Complaints do not have to be acted upon, but it is rare that they are not. AVO applications typically arise from a highly emotional response – often justified no doubt, but sometimes a knee-jerk reaction or payback.

The `defendant’ who considers that an AVO has been obtained by a false complaint has to consider carefully what to do. Choices exist of consenting to the AVO being granted with or without admission as to the truth of the complaint. It saves costs, saves time in going back to Court or having to take time off work to attend Court – but at what risk? Alternatively, the application can be defended and in some circumstances attempts can be made to settle the matter by undertakings being given without the formality and consequences of an Order.

Even if an AVO is justified, you should consult one of our AVO and domestic violence lawyers to ensure smooth transition through the criminal justice system.

Successfully defending an application for an AVO sought by your spouse or former partner can be difficult for a number of reasons. Firstly, applications need only be proved on the balance of probabilities, rather than the higher criminal standard of beyond a reasonable doubt. Secondly, applications are often taken out by police on the behalf of the alleged `PINOP’ so you may already find yourself in a position where your spouse or former spouse is legally represented by a police prosecutor and you are not. Thirdly, most allegations occur where there are no witnesses and it is your word against that of someone else.

Often orders will be sought that are `interim’ that apply between your first court date and the date of hearing. These orders can be opposed.

 

What is the impact of a breached Apprehended Violence Order (AVO)?

If you breach an Apprehended Violence Order (AVO), you risk a criminal conviction and criminal record as well as penalties that include steep fines or even imprisonment. You might be forced to move out of your house. You might be prevented or restricted from seeing your children or going to or near a particular location.

For those reasons alone, you should seek the expert assistance of one of our AVO and domestic violence lawyers.

If you believe the AVO was unnecessary, or obtained by a false complaint, or obtained for some advantage such as preventing one parent from seeing their children, the granting of an AVO can have drastic implications. What is to stop them alleging a breach of the AVO causing you to face criminal prosecution?

How easy is it for a person to simply ring the police and claim that you swore at them, intimidated them, harassed them or perhaps assaulted them – when you know that is a lie? On receiving such a complaint, police would ordinarily take action against you which could involve arrest, refusal of bail or conditional bail, and the necessity to attend Court.

It is therefore essential to seek expert advice from one of our AVO and domestic violence lawyers in Sydney as to what action should be taken in response to an Apprehended Violence order application.

AVO and Domestic Violence FAQs

Can an AVO be revoked or varied?

Yes. If there are good reasons why the AVO should no longer be in place or should be varied, then application can be made to the Local Court. This may happen if the parties reconcile or in circumstances where the party whom the defendant is prohibited from contacting continues to contact the defendant suggesting perhaps that there is no such need for such restrictive orders.

Can Undertakings be given instead of an AVO?

Yes – but only if all parties are willing and accepting of this outcome. The advantage of settling this type of matter with mutual undertakings is two-fold. Generally once undertakings are given, the parties will comply with them. If there is non-compliance, it is relatively easier to obtain a further AVO. Secondly, there is no criminal offence for breaching an Undertaking whereas there certainly is if there is an alleged breach of an AVO.

Of course the person who was seeking protection is under no obligation to accept undertakings and if they are genuinely fearful, it must be accepted that they will not accept undertakings.

Served with an AVO? Where to Now?

Seek expert advice. Generally speaking, you can consent to an AVO being made without admitting the reasons set out by the person making the application for the AVO. Alternatively, you can consent to the AVO being made and admit that the reasons set out in the application are genuine.

However, 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.

Some AVO applications are genuine and others are not. It is a very simple procedure for someone to make application for an AVO. If the application is made for some advantage or by falsifying a complaint, or as a pay back of some sort, then it is all too easy for that person to allege a breach of the order which would generate a criminal offence and put you at risk of serious penalties including imprisonment.

If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. Call 1800 NOT GUILTY or fill in our contact form on this page and arrange a free conference with a solicitor today. Contact our specialists right now! 24-hour legal advice 7 days a week.