Legal Services for Apprehended Violence Orders (AVOs) in Australia
Apprehended violence orders refer to people who have been arrested for violence. This is an order of the Court imposed on a person to protect another person (or persons). If you are threatened with violence, intimidation or harassment, a court may make this order to protect you. According to AVOs, the person you fear (the defendant) cannot assault, harass, threaten, stalk, or intimidate you. Most AVOs have legitimate purposes, but they are increasingly used for wrong ends. AVOs are not criminal convictions, so they do not appear on a police check that would result in a criminal record. Attorneys who handle Apprehended Violence Orders (AVOs) know that these orders can have devastating effects on you, your partner, and your family. You may appeal a case based on how you handle the local Court.
Apprehended Violence Orders (AVOs)
There are different names for violence orders in different states in Australia. Each state has its laws regarding these orders. Apprehended Violence Order, or AVO, is the most commonly used term for violence orders, although it is referred to as such in New South Wales.
AVOs in New South Wales fall into two categories:
- Apprehended Domestic Violence Orders (ADVOs) are made in cases of family relationships, living together, living in a residential facility, being in a caring relationship, or an intimate relationship. People who were previously in a relationship of this kind are included here.
- Apprehended Personal Violence Orders (APVO) are made when there is abuse between people who do not have a domestic relationship and who are not related. Such abuse may occur between neighbours or coworkers.
Although these orders can be classified as AVOs, their application is different.
If you are being abused in a domestic or family relationship, you can apply for an AVO for protection.
In some states and territories, these relationships include:
- A relationship between a husband and wife, boyfriend and girlfriend, or a same-sex relationship.
- Relationships with family (like siblings or parents)
- A relationship of informal care (where a person is reliant on others for assistance with their daily living activities, for example, dressing and cooking)
- In the case of Aboriginal people and Torres Strait Islanders, a member of your kinship or extended family (according to your Indigenous kinship system).
When the Court reasonably fears that the defendant will commit domestic violence against the person seeking protection, it can grant an ADVO. In some circumstances, a person does not need to prove that they fear their safety. Children under 16 are also protected under these laws.
When determining whether to make an ADVO, the Court will consider several factors. In particular, this includes how the orders may affect any children involved, any hardship experienced by the person and their children, and the need for accommodation of the concerned parties.
Despite the legitimate purposes of most AVOs, the use of these documents for improper purposes is on the rise. A person who receives one of these types of AVO also has the right to appeal against it.
If you receive an AVO, what you must do to oppose it
You will need to inform the Magistrate if you decide to oppose the AVO after receiving legal advice. A second hearing will be set for a compliance check (after which the parties will present their statements and evidence).
In the case of an AVO associated with criminal charges, those charges must be dealt with before the AVO can be addressed. An AVO often includes charges of domestic violence.
Prepare statements and evidence.
In drafting your statement(s), you must work with an experienced Apprehended violence orders (AVO) lawyer. These statements cannot change after you file and serve your statement and evidence.
Having professionally prepared statements is crucial when fighting false AVO claims.
How does an interim AVO work?
Interim Apprehended violence orders (AVOs) are temporary orders that remain in effect while a court case is pending. You must indicate at the first court hearing if you agree to the AVO remaining in effect on an ‘interim basis’ through the duration of the case. Witnesses will be called in to testify if you oppose this. The chief witness and cross-examiner will both present evidence in this process.
According to Section 22 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the party seeking the interim AVO will have to demonstrate that an interim AVO is both “necessary and appropriate in the circumstances”.
It would be good if you had an experienced AVO lawyer on your side who could cross-examine any witnesses and convincingly argue why you should not make an interim AVO order.
Do you know what a Compliance Check date is?
During the second court date, all parties will be required to confirm that all statements and evidence have been filed and served on the Court and between each other. Once this is done, the Court will hold a defended hearing referred to as a “show cause hearing”.
Without such evidence, the Court may adjourn the case so that parties can file their evidence. In cases where one party has filed documents and served evidence, and the other party has not, the party who filed can apply for the case to be finalized in their favour.
In an AVO Hearing, what happens?
The final hearing will allow witnesses to present evidence and be cross-examined. For practical cross-examination of the other party’s witnesses, you will need a lawyer who has experience conducting defended hearings. This process can often be challenging. Also, there are rules of evidence regarding which questions can be asked and which evidence is admissible.
As soon as all witnesses have testified, each party may explain why an AVO should be granted or not. Afterwards, the Magistrate will render the decision.
Undertakings
The “undertaking” method is often used to resolve AVOs. An undertaking does not have the same enforcement as an AVO. An undertaking isn’t legally obligated to be followed, but the breach of an undertaking in the future may strengthen a claim for an AVO.
The advantage of an undertaking is that it can save the parties a lot of money and time in the long run. The courts are keen on encouraging undertakings for private AVOs (i.e., those not initiated by the police).
‘Without Admissions’ AVO consent
An Apprehended violence orders (AVOs) can also be finalized quickly if agreed upon “without admissions”. The agreement will require your consent to AVO.
How do you define “without admissions”?
An Apprehended violence orders (AVOs) that states ‘without admission’ means you do not agree with any of the allegations. The benefit is that it cannot be used in subsequent proceedings as evidence that you have admitted to anything.
This is the ideal outcome in the absence of an arguable case against the AVO or if you don’t wish to spend time or money defending it. The length of the Apprehended violence orders (AVOs), as well as the conditions of the AVO, can be negotiated with help from an experienced AVO lawyer.
You can ensure the protection of your rights by consulting an experienced lawyer with AVO experience, mainly when it is likely to affect family law proceedings or the ability to obtain a firearms license. Please contact us for more help.
