What is an AVO?
An apprehended violence order (AVO) is a court order that prohibits an individual from engaging in certain behaviours in an attempt to protect another from harassment or violence. Despite being governed by the Crimes (Domestic and Personal Violence) Act 2007 it is not a criminal offence to be listed as a defendant on an AVO and will not appear on a defendant’s criminal record. However, if the defendant contravenes the AVO they are committing a criminal offence and can be charged by police.
There are two types of AVO’s, apprehended domestic violence orders (ADVO) and apprehended personal violence orders (APVO). An ADVO involves parties who have or who previously have shared a domestic relationship. The definition of ‘domestic relationship’ is quite broad and is outlined in section 5 of the Act. An APVO involves parties who do not fall under a domestic relationship such as neighbours or co-workers.
The initiating process
An AVO can either be taken out by the police on behalf of a person in need of protection (PINOP) or by a private applicant through the local court registry. Once an AVO application is initiated the parties must attend court to determine how the application will be finalised.
The police will initiate an AVO if they become aware of any behaviour that amounts to a criminal offence or the police suspect an AVO is necessary to ensure the safety and protection of an alleged victim. The police will initiate an AVO, serve the order on the defendant and appear on behalf of the alleged victim throughout the court process.
It is important to understand that the police have an obligation to protect all victims and will often initiate this process despite the alleged victim not wanting the conditions of the AVO.
The Court Process
When the matter is first listed before the court the defendant can consent to the conditions sought in the AVO and the Magistrate will make final orders for the duration requested by the police or the private applicant. The matter will be considered finalised by the court unless there is a breach of the AVO conditions.
Alternatively, the defendant can oppose the AVO and the matter will be timetabled for the service and exchange of evidence before being listed for a contested hearing. The evidence must be in the form of written statements which will be read by the Magistrate prior to the parties cross examining any witness who has provided a written statement.
After reading and hearing all of the evidence the Magistrate makes a determination on whether a final AVO should be made in accordance with the Act.
Enforcement of AVOs
All AVOs must have the mandatory order that offers a minimum level of protection to the PINOP while still allowing the parties to live together and communicate freely. There are also a wide range of additional orders that a court can impose to ensure the safety of protection of the PINOP and any children. These include but are not limited to restrictions on contact, freedom to go within a certain distance of a residence or place of work and time frames following consumption of drugs and alcohol.
The conditions of an AVO are enforceable in the following circumstances:
- An authorised officer makes a provisional AVO and a police officer personally serves a copy of the order on the defendant
- The Court makes an interim AVO with the defendant present or a copy of the order is served on the defendant
- The Court makes a final AVO with the defendant present or a copy of the order is served on the defendant.
Both provisional and interim AVO’s remain in force until a final determination is made by the court or the orders are revoked by any authorised officer or any court dealing with the application.
Consequences of an AVO
Whilst being a defendant in an AVO is not a criminal offence there are other consequences that need to be considered by anyone involved in an AVO. For example any AVO will result in the immediate suspension of a firearm licence as well as potential impacts on some forms of employment or the eligibility of working with children checks.
In summary, the underlying rationale and immediate protection offered within the AVO framework is crucial to combat violence and harassing behaviour in our community however, the inherent powers awarded to police and potential consequences on the individual demand AVO’s must be used appropriately.
If you are involved in any AVO proceedings we encourage you to contact our criminal law team to ensure you are being treated fairly and in accordance with the law.
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