What is an AVO? Know The Process, Steps and Implications
Violence, as vividly portrayed in fictional narratives, e.g., the chilling events of the Red Wedding in Game of Thrones or the indiscriminate brutality exhibited by the Mountain, can come from people we don’t know or the people closest in our circles. While the realm of Westeros presents a fictional landscape of unchecked violence, individuals within the Australian jurisdiction are safeguarded through the implementation of Apprehended Violence Orders (AVOs).
If you want protection from violence, want to apply for an AVO, or have received it, then keep reading. We will explain everything to make it easier for you to proceed, or you can directly contact our AVO lawyer.
What is an AVO?
An AVO, a civil order, is a legal contract between two parties—the defendant and the Person In Need Of Protection (PINOP), aimed to protect the PINOP from harassment, violence, intimidation, or other threatening behaviour by the defendant by imposing restrictive covenants upon the respondent. AVOs encompass both Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). They may be granted on a provisional, interim, or final basis, or as variations thereof.
Provisional AVOs
If there’s a pressing concern of threat to the aggrieved by the defendant, then a police officer issues an emergency AVO order without a formal court hearing.
Interim AVOs
This is a temporary AVO order, issued by the court before the final decision, to protect the victim from any immediate violence threat.
How does an AVO work?
An AVO operates by establishing injunctive relief measures that prevent the defendant from engaging in specific behaviours that could endanger the aggrieved person. For example, the defendant may not be allowed to contact the protected person physically or by phone, visit their home or workplace, or be in their company within 12 hours of consuming alcohol.
Difference Between AVO, Restraining Order, and Intervention Order (IVO)
Since every state has a different jurisdiction, each state has a different name for the order which prohibits and restrains other persons from contacting PINOP.
- Queensland & Northern Territory and Australian Capital Territory: Domestic Violence Order
- Victoria: Intervention Orders (IVO)
- Western Australia: Family Violence Restraining Order
- South Australia: Formerly called Restraining Orders, now called Intervention Orders
- New South Wales: Apprehended Domestic Violence Order (ADVO)
- Tasmania: Family Violence Order
Types of AVO
AVO is of two types: Apprehended Personal Violence Order APVO and Apprehended Domestic Violence Order ADVO
| APVO (Apprehended Personal Violence Order) | ADVO (Apprehended Domestic Violence Order | |
| Purpose | Protects a person from violence, harassment, intimidation, or stalking by someone they do not have a domestic relationship with. | Protects a person from violence, harassment, intimidation, or stalking by someone they have a domestic relationship with (e.g., spouse, partner, family member) |
| Who Can Apply | Any individual who feels threatened by someone outside of their domestic relationship. | Individuals in a domestic relationship, police on behalf of victims, or victims themselves. |
| Types of Relationships Covered | Non-domestic relationships, such as neighbours, colleagues, acquaintances, or strangers. | Domestic relationships, including spouses, partners, former partners, family members, and those in a household. |
| Common Reasons for Issuance | Stalking, harassment, violence, or intimidation by someone outside the family or household. | Domestic violence, abuse, threats, harassment, or any form of violence within a domestic setting. |
| Legal Process | It is a similar process to ADVO, but the relationship between the parties is non-domestic. | Typically involves police intervention; can be applied for by the victim or police on the victim’s behalf. |
| Duration | It is generally temporary but can be extended or made permanent by the court. | Similar to APVO; can be temporary or made permanent depending on the court’s decision. |
| Impact on the Defendant | It can affect the defendant’s personal and professional life, but does not carry the same social stigma as ADVO | More severe social implications due to the domestic nature; can affect child custody, employment, and social relationships. |
AVO Application and Process
If you are the applicant, you can apply for an Apprehended Violence Order in either of the two ways:
Police Application
If you choose to ask the police to apply an AVO against the defendant, they will decide if there are sufficient grounds to apply for an AVO. They will determine the conditions and type of AVO according to your situation and will give you and the defendant a hearing date in court.
It is important to note that AVO proceedings are distinct from criminal prosecutions. While AVOs often arise from alleged criminal offenses such as assault, intimidation, threats, or property damage, the outcomes of these two processes are independent.
Private Application
If you choose to apply privately through the local court, you will be required to explain to the magistrate why you need an AVO. The magistrate will give you a hearing date and summon the defendant too. It’s crucial to seek advice from an expert AVO lawyer before applying for an AVO, as the application can be refused if the court or police doubt the genuineness of your fears from the defendant.
Once a hearing date is announced, whether the defendant consents to AVO or not, the case will proceed accordingly. In the case of a police application, a police prosecutor will represent you. However, in the case of a private application, you will need an AVO attorney.
As a Defendant
If you are served with an AVO, you have three options:
AVO Orders
To ensure the safety and protection of a PINOP, the court may impose different types of restrictions and conditions on the defendants. These conditions include:
Orders About Behaviour
The order prohibits the individual from:
- Physically or verbally harming the protected person.
- Engaging in intimidating or harassing behaviour.
- Damaging or destroying the protected person’s property.
- Contacting the protected person through any means, including in person, by phone, or electronically.
- Engaging in any behaviour that causes fear or apprehension of harm.
Orders About Contact
- No Contact: The defendant must not contact or approach the protected person in any way, except through a lawyer. This includes in-person contact, electronic communication, and attempts to contact them indirectly.
- Stay Away: Defendants must stay away from places the protected person is likely to be, such as their home, school, or workplace.
- Substance-Free Interaction: The defendant cannot be with the protected person for 12 hours after consuming alcohol or drugs.
- No Stalking: The defendant must not try to find out where the protected person is or monitor their activities.
Specific Conditions Related to Children – Child-Related Contact
If the defendant has children together with the protected person, any contact with them must comply with existing family law orders or be agreed upon in writing by all parties involved, including any relevant government agencies or legal guardians.
How Do AVOs and Family Court Orders Interact?
Family Law Orders supersede conflicting AVO provisions. For instance, shared custody arrangements under a parenting order override AVO contact restrictions. A Magistrate may exercise discretion to suspend a Family Law Order, enabling the full force of an AVO. To ensure the efficacy of these orders, applicants for AVOs must disclose any relevant Family Law Orders to the Court.
Consequences for Defendants
Even though an AVO is not a criminal charge, an ADVO can have very severe repercussions compared to an APVO on your visa, citizenship, employment, and family matters.
Consequences on Visa and Citizenship
Consider, for instance, if you have applied for a visa or citizenship. Then, as a defendant, consenting to an ADVO, even without admitting to the allegations, means long-term consequences. For citizenship, Section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) and for visas, Section 501 of the Migration Act 1958 (Cth) emphasizes the importance of “good character.” An ADVO can be seen as evidence of poor character, making it difficult for you to obtain or maintain a visa or become a citizen.
Consequences on Employment
If the PINOP in the ADVO is a child, you cannot easily obtain a “Working with Children Check” (WWCC), which is a requirement for most jobs nowadays, even if you will not have any direct contact with the children when on the field.
Consequences on Family Matters
The court’s primary concern is the child’s best interest, and an ADVO can influence this decision. One parent might use the ADVO to restrict the other parent’s time with the child, both temporarily and permanently. Supervised visits or limited contact hours can be imposed.
Consequences on Personal Choices
An ADVO can significantly impact your personal choices, such as the restriction on gun ownership. If you possess firearms, they will be seized upon the issuance of an ADVO. Your gun license is automatically revoked for a decade. Even if the ADVO is subsequently cancelled, regaining your gun license requires demonstrating your suitability to own a firearm.
Remember that the consent of the PINOP is not a defense to a breach of an Apprehended Violence Order. The defendant bears sole responsibility for compliance regardless of the victim’s expressed consent to contact them.
What Happens if the Defendant Breaches an AVO?
If an existing AVO is breached, what happens next depends on whether you’re the defendant, PINOP, or a witness to the alleged contravention.
If You Are a Defendant
You should know that an AVO itself does not result in a criminal record. However, the consequences of breaching an AVO can be severe.
- Breaching an AVO is a criminal offense. If you’re found guilty of violating an AVO, you may be arrested and brought to court, where you may be fined up to $5,500 or imprisoned for up to two years. The conviction will be recorded on your criminal history as a domestic violence offense.
- Long-term implications: This criminal record can negatively impact future legal proceedings, such as bail applications or sentencing for other crimes.
Seek Legal Advice
Consulting a criminal lawyer is crucial to understand your rights and potential defences if you’ve been charged with breaching an AVO.
Remember: If you have been charged with contravening an AVO, it is highly recommended that you speak to a criminal lawyer before speaking to the police, so you understand your legal rights and options. You may also be arrested and refused bail, which may require you to make an urgent bail application in court.
If You Are a PINOP or a Defendant
Report to the police and provide as much detail as possible. If police become aware of a potential AVO breach by the defendant, they will investigate this. This means they will contact the PINOP and witness to provide a written or video statement, which will then form part of the police evidence.
Application to Vary or Revoke AVO
Once an AVO is issued, you can apply to vary or revoke it. This includes changing the duration of the AVO, adding, deleting, or changing orders. To apply, you are required to visit the relevant local court and seek help from the registry staff to complete an application to vary or revoke AVO form. The registry staff will give you a court hearing date, and if you don’t appear in court, your case will be dismissed.
FAQs
Q: How can I find out if someone has an AVO?
In Australia, you cannot check if someone else has an AVO. Privacy laws restrict access to criminal records to the individuals themselves.
Q: How long does an AVO last?
A standard AVO in NSW lasts for 12 months. However, the court can extend this period up to 2 years or any other specified time.
Q: Can I appeal an AVO?
Yes, the defendant can appeal a final AVO within 28 days of the order being made. Appeals are heard in the District Court.
Q: How much does it cost to get an AVO?
The cost of an AVO can vary. While the court may order the police to reimburse some costs, the PINOP will likely incur additional expenses. Costs typically range from $2,000 to $5,000.
Q: How long does it take to get an AVO served?
An AVO is typically served on the defendant within 1-7 days of the application being made.
