Our Apprehended Violence Order (AVO) lawyers understand that these orders can have a devastating effect on yourself, your partner and your family.
We have years of experience in defending AVOs, having them withdrawn and having existing AVOs revoked. You can view our recent results for AVOs here.
How to do you fight an AVO?
If after receiving legal advice you decide to oppose the AVO, you will need to advise the Magistrate of this. The case will then be adjourned for a second court date (the ‘compliance check' date) to allow the parties time to file statements and evidence.
However, if there are also criminal charges associated with the AVO, then these will need to be determined before the AVO can be addressed. Often there will be domestic violence charges with an AVO.
Preparing statements and evidence
It is crucial that an experienced AVO lawyer assists you in the drafting of your statement(s). This is because once your statements and evidence are filed and served, it cannot be changed.
When fighting false AVO claims, it is crucial that your statements are professionally prepared.
What is an Interim AVO?
An interim AVO is a temporary AVO which is enforceable while the Court case is ongoing.
On the first Court date, you must indicate whether you agree to the AVO being in effect for the duration of the court case on an ‘interim basis'. If you oppose this, the Court will hear evidence from witnesses. This will involve the giving of evidence in chief and cross-examination.
The party seeking the interim AVO will have to show that an interim AVO is both “necessary and appropriate in the circumstances”, pursuant to Section 22 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
It is important that you have a specialist AVO lawyers with you who can expertly cross-examine any witnesses and persuasively argue why an interim AVO order should not be made.
What is a Compliance Check date?
The second Court date is to confirm that all parties have filed and served statements and evidence on the court and on each other. If this has been done, the Court will adjourn your case to a defended hearing known as a “show cause hearing”.
If this has not been done, the Court may adjourn the case to allow parties to file evidence. If one party has filed and served evidence and the other has not, an application can be made by the party who has filed for the case to be finalised in their favour.
What happens at an AVO Hearing?
At the final hearing, witnesses will be called to give evidence and be cross-examined. You will need a lawyer who has years of experience in running defended Hearings to effectively cross examine the other party's witnesses. This is often very complex and difficult. There are also rules of evidence as to what questions can be asked and what evidence is admissible.
Once all witnesses have given evidence, each party can make submissions as to why an AVO should or should not be made. The Magistrate will then deliver judgement.
Will an AVO be made against me?
In order for an AVO to be made, Section 16 of the Act sets out the factors that must be proved on the balance of probabilities:
1. The alleged victim has reasonable grounds to fear a personal violence offence from you; and
2. The alleged victim, fears a personal violence offence from you unless:
- The alleged victim is under 16 years of age
- The alleged victim has a mental impairment
- the alleged victim has, in the past, been subject to a personal violence offence from you and the court believes there is a reasonable likelihood of it occurring again.
3. It is appropriate to make an AVO in the terms sought.
In determining whether to make an AVO, Section 17(2) of the Act allows the Court to consider:
- “ in the case of an order that would prohibit or restrict access to the defendant's residence–the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and
- any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and
- the accommodation needs of all relevant parties, in particular the protected person and any children, and
- any other relevant matter.”
However, if you have been found guilty of associated criminal charges, such as common assault, then the AVO will be made automatically. That is why it is important to strongly defend any criminal charges and have experienced assault lawyers in your corner.
How can you defend an AVO?
There a number of ways to defend an AVO including:
- Identification: The other side cannot prove that you were responsible for the behavior complained of.
- The alleged victim would not have reasonable grounds to fear a personal violence offence from you.
- The alleged victim does not actually fear you.
Contact us now to speak to an expert AVO lawyer about how to defend an AVO.
“Undertakings” are a common way in which AVOs are resolved. Undertakings are not enforceable in the same way as an AVO. There is no legal obligation to comply with an undertaking, however, if there is a breach of the undertaking, it will strengthen any future case for an AVO.
One big advantage of an undertaking is that it saves the parties significant legal fees and time. Courts are very keen to encourage the use of undertakings for private AVOs (ie. AVOs that are not initiated by Police).
Consent to an AVO ‘Without Admissions'
Agreeing to the AVO on a “without admissions” basis is another common way in which an AVO can be finalised quickly. This will require you to consent to an AVO.
What does ‘without admissions' mean?
‘Without admissions' means that you do not agree to any of the allegations set out in the AVO. This is advantageous as it cannot then be used as proof of you admitting to anything in other proceedings.
If you do not have an arguable case against the AVO, or do not wish to spend time and money defending the AVO, this would be an ideal outcome. An experienced AVO lawyer can assist you in negotiating the length of the AVO as well as the AVO conditions.
An experienced AVO lawyer can ensure that your rights are protected. This is especially so if it may affect family law proceedings or having a firearms licence.
What is an AVO?
An AVO is an apprehended violence order. It is a Court order imposed on a person for the protection of another person (or persons).
There are some mandatory conditions that come with an AVO, and then there are other optional conditions. These conditions restrict the behaviour of the person on whom the AVO is imposed.
Is an AVO a criminal record?
An AVO will not give you a criminal record. If, however you are found guilty of breaching an AVO, you may receive a criminal conviction.
Does an AVO appear on a Police check?
No. As an AVO is not a criminal conviction, it will not appear on any Police check.
What are the effects of an AVO?
An AVO may place restrictions on what you can and cannot do. Some common examples of conditions are:
- You cannot approach or contact a particular person or persons;
- You cannot enter a particular premises;
- You cannot go within a certain distance of a particular location;
- You cannot be in the company of a particular person within 12 hours of consuming alcohol.
Can I appeal an AVO?
Yes. There are different types of appeals that can be made, depending on how the case was dealt with in the Local Court.
Can an AVO be made if I am not at Court?
If you did not appear in Court when the AVO was made against you, you may be able to ‘annul' the making of the AVO. This is known as an annulment application. You should speak to one of our lawyers about whether you satisfy the criteria for an annulment application.
If the annulment application is successful, the final AVO will be revoked and the AVO court process will start again.
Can I revoke an AVO?
Yes. Even if a final AVO has been made, you can apply to the Local Court to later change the AVO conditions, or eliminate the AVO completely. In order to revoke an AVO you must do the following:
- place all parties on notice (ie. Defendant, person in need of protection – and Police if required);
- establish that there has been a change in circumstances which justifies revoking the AVO or amended the conditions.
If the “person in need of protection”, or one of the protected persons under the order, is a child under 16 years of age then only Police can apply to change or revoke the AVO.
Costs in AVO cases?
You can seek the other side pay your legal costs pursuant to Section 99 of the Crimes (Domestic and Personal Violence) Act 1999 (NSW).
In private AVO matters, costs can be awarded If they are just and reasonable if the other side's application for the AVO was frivolous or vexatious.
However, under Under Section 99A of the Act, costs can only be ordered against a Police application for an AVO if Police knew the application contained matters that were false or misleading.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.