WHAT IS AN AVO?

An Apprehended Violence Order (‘AVO’) is a court order that prohibits or restricts a person from engaging in certain conduct. AVO’s are designed to protect people from actual or threatened violence, stalking, intimidation and harassment.

There are two types of AVO’s in NSW:

• Apprehended Domestic Violence Order (ADVO) – made to protect a person where a ‘domestic relationship’ exists between the parties.
  • ‘Domestic relationship’ is defined broadly and includes partners, intimate relationships, people who reside together, relatives and in the case of Aboriginal or Torres Strait Islander people, those who are part of the same extended family or kin.
• Apprehended Personal Violence Order (APVO) – made where the parties don’t share a domestic relationship, for example co-workers or neighbours.

WHO CAN APPLY FOR AVO?

An application for an AVO may be made by:

• The person in need of protection, if they are over 16
• The guardian of a person in need of protection
• A police officer

A police officer must make an application for an AVO in certain circumstances, such as if they believe or suspect an offence of stalking or intimidating or any other domestic violence offence has been committed or is imminent or likely to be committed. A police officer also has the power to make a provisional order, designed to provide protection until the matter is heard by a court.

You may also apply for an AVO on your own. You can contact the NSW police and a police officer can apply for an AVO on your behalf. Alternatively, you can make an application to the local court on your own. More information about applying for an AVO through the Local Court can be found at law access, or by contacting a Local Court Registry.

If a court decides it is necessary or appropriate to do so, they may make an interim order until the matter is finalised by the court.

CONDITIONS OF AN AVO:

Every AVO has three mandatory conditions, that provide protection to the person in need of protection as well as anyone they have a domestic relationship with. These conditions are, that the defendant must not do any of the following:

1. Assault or threaten them
2. Stalk, harass or intimidate them, and
3. Intentionally or recklessly destroy or damage any property that belongs to or is in the possession of them.

The mandatory conditions are designed to provide protection, but do not exclude the defendant from doing anything usual.

A court can also make additional conditions if it decides that it is necessary in the circumstances to provide protection. These conditions vary, but can include the following:

• Not to contact the protected person in any way, unless through a lawyer. This includes by phone, social media, writing or through a third person. If there are family or parenting orders in place, another condition may be added to allow contact in accordance with those orders.
• Not to approach their school or other place of study, place of childcare or another specified place.
• Not to approach or be in the company of the protected person for at least 12 hours after drinking alcohol or taking illicit drugs.
• Not to try to find the protected person.
• Not to live at the same address as the protected person or another specified address.
• Not go into or within a certain distance of a place the protected person lives, works or another specified place.
• Not to possess firearms or prohibited weapons.

WHAT CAN I DO IF I HAVE BEEN SERVED WITH AN AVO?

When you are served with an application for an AVO, it will tell you the date you have to go to court. Before this date, you must decide how you want to respond to the application, it is a good idea to get legal advice before your court date.

There are a number of options:

Mediation

If you have been served with an application for an APVO, unless there is a good reason not to, you must attend mediation. The mediation is an opportunity to discuss the matter with the protected person and a mediator. In some cases, mediation can result in an agreement between the parties.

Give an undertaking to the court

If the applicant agrees, you may make an undertaking or a formal promise to the court not to do certain things. An undertaking is not legally enforceable, and it is not an offence if you breach an undertaking.

Consent to the AVO

If you agree to the AVO being made against you, you can consent to it. This means the court will make an order in the conditions in the application. You can consent to the AVO with or without admitting to the truth of the facts in the application. Consenting to an AVO can save the cost, time and stress of defending the application.

Oppose the application

If you don’t agree to the AVO, your matter will be adjourned to a later date for a hearing. On the hearing date the applicant will present the evidence they rely on and the defendant will get to present any evidence in their defence. The court will then decide whether an AVO should be made.

Make a cross application

If you also fear the protected person, you are entitled to make a cross application, for your own protection.

WHAT HAPPENS IF I BREACH AN AVO?

While an AVO is not recorded on someone’s criminal record, breaching an AVO is a criminal offence and can have serious consequences.

A person who knowingly contravenes a prohibition of restriction specified in an AVO is guilty of an offence. This offence carries a maximum penalty of 2 years imprisonment, a fine of $5,500 or both.

GETTING YOUR PROPERTY BACK:

If property has been left with the defendant or the protected person, and an AVO prevents you from collecting it, you can apply to the court for a property recovery order. This is a court order that sets out how the property should be returned. In the application, you need to set out what you need to collect. This should only include things that you reasonably need such as clothes, personal documents, children’s belongings or work items. A court cannot make an order about items if there is a dispute as to who owns them.

If you need your property urgently and cannot wait until your matter is heard in court, you can contact the police who may be able to assist you in getting your belongings.

If you are applying for an AVO on your own, or are the defendant named on an AVO it is a good idea to get legal advice. You can book a free initial consultation with one of our lawyers here or by calling (02) 4227 3505.

Alternatively, you can contact legal aid or find some general information on law access.