What is an Apprehended Violence Order?

Apprehended Violence Orders are court orders which aim to protect a person (referred to as the ‘person in need of protection’) from violence, threats, and harassment, by imposing certain conditions on another person.

There are two types of AVOs being:

1. Domestic (ADVOs) (where a domestic relationship exists between the parties, i.e., family members, spouses, ex-partners).

2. Personal (APVOs) (where there is no domestic relationship, i.e., neighbours, co-workers, acquaintances).

AVOs may be initiated by the police, or they can be ‘private’ which means it is initiated by the person seeking protection themselves, rather than the police seeking it on their behalf.

A police AVO will usually be accompanied by a criminal charge, with these matters running together at court. However, they may also be stand-alone, and not associated with any criminal charge.

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There are also categories of AVOs, which essentially refer to their stage, being:

1. Provisional AVOs (put in place by police on an urgent basis, until the matter goes to court),

2. Interim AVOs (the court can make an interim AVO to ensure the order is applicable until the case finalises), and

3. Final AVOs (the final order imposed by the court if the defendant consents or the court deems it suitable to make the order).

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There are essentially two options for a defendant served with a stand-alone AVO:

1. The defendant can consent to the order (which can be done without any admissions of wrongdoing), and the order will be made final, or

2. The defendant can contest the order.

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Where the defendant opposes the order, the matter will be set down for a contested hearing, subsequent to the parties serving and filing their evidence in relation to the matter.

In determining whether an ADVO is warranted, the ultimate test is whether the court is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear, and fears:

• the commission by the other person of a domestic violence offence against them, or

• the other person engaging in conduct which amounts to intimidation or stalking them (or a person with whom they have a domestic relationship).

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This conduct must be, in the opinion of the court, sufficient to warrant the making of the order.

The test is similar when determining whether an APVO is warranted however, instead of a domestic violence offence, the person may fear a personal violence offence.

The legislation which governs AVOs is the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Applications for an AVO are considered civil proceedings. The imposition of an AVO therefore does not show up on a criminal record.

However, being subject to an AVO may impact your ability to hold a firearms license, a Working with Children Check, and family law proceedings.

Furthermore, criminal proceedings will likely ensue where the conditions of an AVO are breached.

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It is an offence to contravene a prohibition or restriction specified in an apprehended violence order.

A maximum penalty of 2 years imprisonment and/or a $5,500 fine, is applicable.

Where the contravention was an act of violence against a person, the offender must be sentenced to a term of imprisonment, unless the court orders otherwise.

Where the court decides not to do so, it must give reasons.

Condition 1 is a mandatory condition that will appear on all AVOs. Every ‘condition 1’ will state that: ‘the defendant must not do any of the following to the protected person/s or anyone that they have a domestic relationship with:

a) assault or threaten them,

b) stalk, harass or intimidate them,

c) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them.’

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Additional orders may also be sought, depending on the circumstances of the matter, which include those which prohibit or restrict:

• approaches by the defendant to the protected person,

• access by the defendant to any premises occupied by the protected person,

• the defendant from approaching the protected person or their premises within 12 hours of consuming alcohol or drugs,

• the defendant from locating or attempting to locate the protected person,

• the possession of all or any specified firearms or prohibited weapons, and

• specified behaviour by the defendant that might affect the protected person.

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Notably, AVOs may prevent a defendant from accessing a premises, whether or not the defendant has a legal or equitable interest in the premises or place.

Final AVOs can last for ‘as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person’.

Where the court does not specify a period in the order, it will remain in force for a period of 12 months, after the date that the final order is made.

Practically, AVOs are normally imposed for 6 months to 2-years.

After the period concludes, the imposed conditions will no longer be in force against the defendant.

Applications to vary (change or remove conditions) or revoke (i.e., completely remove) may be made to the court.

Where this involves a final or interim AVO, the court may decline to hear an application if it is satisfied that there has been no change in the circumstances on which the making of the order was based.

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If you need further information or legal assistance, contact our team of defence lawyers for a free consultation.

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