Is someone asking the court to make an AVO?

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

• assault or threaten the protected person
• stalk, harass or intimidate the protected person or
• intentionally or recklessly destroy or damage the protected person’s property or harm their animal.

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.

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

There are two different types of temporary AVOs that can be made to protect a person until a court decides whether to make a final AVO.

1. A provisional AVO is an order applied for by a police officer and granted by a court or senior police officer.
2. An interim AVO is made by the court to extend a provisional AVO or where the court agrees that it is necessary or appropriate for a protected person to have temporary protection.

Police might apply for a provisional AVO after an incident between you and the protected person.

Police may do this if they have good reason to believe an immediate order is necessary to protect the person or prevent substantial damage to their property.

A provisional AVO can be made at any time of day or night and comes into immediate effect the moment it is served on the person the order is against.

A provisional AVO will continue until either it is revoked or another order is made by the court, such as an interim or final order, or the AVO application is withdrawn by police.

The court can make an AVO if the court is satisfied that the protected person has ‘reasonable grounds’ to fear and in fact fears that you will be violent toward them, intimidate or stalk them. The court can also make an AVO in other circumstances (for example, if the person in need of protection is a child).

Once the application for an AVO has been made, your case will be listed for mention. The mention is the first date an application for an AVO is heard in court. You should turn up to court on the mention date or an AVO may be made without you there.

You can respond to the AVO in two ways.

• 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
• Not consent (not agree) to the AVO. The case will be adjourned (given another date) and the magistrate will direct 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.

The case will then be listed again so the magistrate can check you and the protected person have filed your statements. If you both have, the matter will be listed for a final hearing. At the final hearing, the court will hear all of the evidence, and then decide if it will make the AVO or not.

Before the case is adjourned, the court needs to decide if it should make an interim AVO against you to start immediately 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.

For more information about domestic violence offences, see our publication Have you been charged with a domestic violence offence?

An interim hearing is only to decide if an interim AVO should be made, and won’t determine 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 people give in the witness box and
• 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).

The court will decide what conditions to include in the interim AVO. See page 3 ‘What types of conditions can be put in an AVO?’ The case will then be adjourned for a final hearing.

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 four weeks before the final hearing. The protected person will usually have to do this two weeks before.

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

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 has found you guilty of, a serious offence, the court will probably make a final AVO.

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 any ongoing family law matters.

If you don’t follow a court order this is called ‘breaching’ an AVO. Breaching an AVO is a criminal offence and you may be charged. The maximum penalty for breaching an AVO is two years imprisonment, a fine of up to $5,500, or both.

For help following an AVO, see our publication Got an AVO? How to stick to your order.

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’.

Exceptional circumstances include if you are:

• an Aboriginal or Torres Strait Islander woman or
• at a ‘special disadvantage’ because of:
  • a psychiatric condition,
  • a developmental disability or
  • an intellectual impairment or a physical disability.