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Is someone asking the court to make an AVO against you?

Is someone asking the Court to make an AVO against you?

Who's who?

The person who the AVO is for is called the 'protected person'.

If the police apply for an AVO on behalf of the protected person the police are called 'the applicant'.

You (the person the AVO is against) are called 'the defendant'. In court you and the protected person are called the 'parties'.

What is an AVO?

AVO's are Court Orders that aim to protect people from others who may be violent toward them, or cause them to fear for their safety.

They work by listing things that the defendant must not do - such as not assault, threaten, harass or intimidate the protected person. These are called 'conditions' of the AVO.

There are two types of AVOs:

  • Apprehended Domestic Violence Orders (ADVO), and
  • Apprehended Personal Violence orders (APVO).

An ADVO is made if people have had a 'domestic relationship' - such as a relative, partner, husband, wife or roommate. Under the law, the ex-partner and current partner of the protected person also have a 'domestic relationship' with each other.

An APVO is made if people are not related and do not have any domestic or intimate relationship - for example, a neighbour, friend or co-worker.

What types of conditions can be put in an AVO?

If an AVO is made, 3 conditions must be included. They are called 'mandatory' conditions. They are that you must not:

  • assault or threaten the protected person
  • stalk, harass or intimidate the protected person
  • intentionally or recklessly destroy or damage the protected person's property.

These conditions will also cover anyone who has a 'domestic relationship' with the protected person.

The Court can also make other orders - such as 'prohibiting or restricting' you from approaching the protected person. This can mean that you may be stopped from:

  • going near the protected person at all
  • going near the protected person's home, work or other premises
  • going near the protected person within 12 hours after you drink alcohol or use illicit substances, or
  • doing all of these things.

The Court can also make any other orders it thinks are necessary for the safety and protection of the protected person.

When can the Court make an Order?

The Court can make an AVO if the Court is satisfied that:

  • the protected person has 'reasonable grounds' to fear that you will be violent toward them, intimidate or stalk them, and
  • actually has that fear.

If the protected person is a child, the Court only looks at if there are 'reasonable grounds' to fear you.

You've been told to go to court on a particular date for 'mention' because there is an AVO against you. What happens now?

You should turn up to court on the mention date or the AVO may be made without you there.

You can either:

  • 'consent' (agree) to the AVO. You can do this even if you don't agree with the reasons written in the application. The AVO will be made for however long the parties agree to, or however long the Court decides.

Or

  • not consent to the AVO (not agree). The case will be adjourned (given another date) for a 'final hearing'. On that next date the court will hear all of the evidence, and then decide if it will make the AVO or not.

But before the case is adjourned, the Court will need to decide if it should make an 'interim' (temporary) AVO against you until the final hearing date. There may need to be an 'interim hearing' to decide this.

If you have been charged with a 'serious offence', such as a domestic violence offence, the Court will probably make an interim AVO against you to protect the alleged victim.

What happens if there is an 'interim hearing'?

This hearing is only to decide if an interim AVO should be made, not the final orders.

The Court can look at:

  • the reasons stated in the application about why the applicant says the order should be made against you
  • any written statements
  • any evidence that the protected person, you or other person gives in the witness box
  • submissions that either party (or their lawyers) make.

If a witness gives evidence in the witness box, the other party (or their lawyer) can cross-examine them (ask them questions).Â

What happens if the court decides to make an interim AVO?

The Court will decide what conditions to include in the interim AVO. See 'What types of conditions can be put in an AVO?' The case will then be adjourned for a final hearing.

What happens if the court decides not to make an interim AVO?

The case will be adjourned for a final hearing.

The Court will order you and the protected person to 'serve' your written statements and any of your witnesses' written statements on each other. You can do this by leaving the statements at the court Registry to be collected by the other party.

You will usually have to serve your statements 4 weeks before the final hearing. The protected person will usually have to do this 2 weeks before.

What happens at the final hearing?

Anyone who made a written statement may be cross-examined about what is in their statements.

The court will look at the evidence from the witnesses, any documents, and the submissions made by both sides, and then decide whether or not to make the final AVO.

If the Court decides not to make the AVO, the application will be dismissed and the case will be over.

If the Court decides it will make the AVO, it will then decide what conditions to put in it.

If you have pleaded guilty to, or if a court found you guilty of, a 'serious offence', the court will probably make a final AVO.

If an AVO is made, what will that mean for me?

If an AVO is made against you, you will not get a criminal record. However, if you have an AVO this could affect things like your future employment and your family law case.

Legal Aid NSW can give you legal about this. To find your closest office call 1300 888 529 or look under 'Get legal help' at www.legalaid.nsw.gov.au

What happens if I don't follow a condition in an AVO?

If you don't follow a court order this is called 'breaching' an AVO. If you breach an AVO that is a criminal offence and you can be charged with breaching the AVO. The maximum penalty for breaching an AVO is 2 years imprisonment or a fine up to $5500, or both.

Can you represent me in court?

Legal Aid NSW does not usually represent defendants in AVO cases. We may be able to pay a lawyer to represent you in court if there are 'exceptional circumstances'. You can get free legal advice from lawyer at Legal Aid NSW about this.  See Where can I get legal help?

Where can I get legal help?

It is a good idea to get legal advice before you decide what to do. You can contact:

LawAccess NSW

A telephone helpline that gives free legal information, referrals to other services and legal advice in some cases. Call 1300 888 529 or visit www.lawaccess.nsw.gov.au

The ‘Representing Yourself’ section on that website has a step-by-step guide about responding to an AVO.

Legal Aid NSW

You can get free legal advice, and in some cases, representation in court from Legal Aid NSW. To find your closest office call 1300 888 529 or look under 'Get legal help' at www.legalaid.nsw.gov.au

Aboriginal Legal Service (NSW/ACT) Ltd (ALS)

If you are Aboriginal or Torres Strait Islander you can also contact the ALS for free legal advice. To find your closest ALS office call 1800 765 767 or visit www.alsnswact.org.au

This publication is a general guide to the law. You should not rely on it as legal advice, and we recommend that you talk to a lawyer about your situation.

The information is correct at the time of printing. However it may change. For more information contact LawAccess NSW on 1300 888 529.

© Legal Aid NSW 2017

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Do you need help to contact us?

If you need an interpreter, call the Translating and Interpreting Service (TIS National) on 131 450 (9am - 5pm) and ask for LawAccess NSW.

If you find it hard to hear or speak, call the National Relay Service (NRS) on 133 677 and ask for LawAccess NSW or visit www.relayservice.gov.au

November 2017