Understanding Apprehended Violence Order in New South Wales

In each State and Territory, there is legislation that has been drafted to allow people to apply for restraining/ protection orders.

The legislation dealing with domestic violence in New South Wales is the Crimes (Domestic and Personal Violence) Act 2007 (Act). The objective of the Act is to protect people from domestic violence, intimidation and stalking. The Act also sets out to protect people who are witness to domestic violence or have experienced domestic violence (i.e children in the relationship).

In New South Wales a restraining order is called an Apprehended Violence Order (AVO)

An AVO is an order that can be made by a court to protect victims of domestic violence if they are:

1. fearful of future violence or threats;
2. intimidated by an abuser (intimidation does not have to include actual or threatened violence) or
3. being stalked by an abuser.

There are two types of AVO’s in New South Wales:

• Apprehended Violence Order: These applications are made when the parties involved are related or have a relationship (domestic or intimate) with one another;
• Apprehended Personal Violence Order (APVO): These applications are made when the parties are not related or in a relationship with one another. For example, an application can be against your neighbour.

HOW CAN YOU APPLY FOR AN AVO

A person can make a complaint to police about the conduct of an alleged abuser.

Following the complaint, the police can make an application for an AVO. If the police are fearful for a party’s safety, they can make provisional orders (temporary order with conditions) so that they are protected before the matter is dealt with by a court.

However, under section 49 of the Act, a police officer must make an apprehended domestic violence order (ADVO), if the officer suspects or believes that domestic violence has recently been committed or there is a likelihood/fear that an act of domestic violence will be committed. An ADVO restrains a person from committing domestic violence and additional conditions may be added to the order preventing the perpetrator from approaching or having any contact with the  victim.

Otherwise, a person can make an application for an AVO on their own, if they attend their Local Court House.

Once an application has been filed, the matter will then be listed for a hearing in the Local Court.

Before making or defending an application for an AVO, it is recommended that a party obtain legal advice.

 AFTER AN APPLICATION FOR AN AVO IS MADE, WHAT HAPPENS NEXT?

A court must set a date for the matter to be determined and the defendant must be notified of the court date.

If the defendant is not present, the court can decide to hear the application in the defendant’s absence, if the court is satisfied that the defendant had reasonable notice of the court date

However, if the defendant appears (or through his or her lawyer) wishes to be heard in the application, the following options are available to the defendant.

1. The defendant can accept the application on a without admissions basis meaning that they are not admitting to the allegations set out in your application.

 

2. The defendant may decide to try enter into negotiations with the applicant/police to have certain conditions amended so that they are less restrictive, for example, the defendant is not allowed to be within a certain distance of the children’s school. This condition may be problematic if this is the place where the defendant is to pick up the child as part of the parenting arrangement; and

 

3. The defendant can contest the application and have the matter listed for a hearing. To contest an application for an AVO, the defendant will have to show that a protection order is not needed in circumstances where there is no reason for the applicant to fear future acts of domestic violence. As such, the simple passing of time (where there has been no acts of domestic violence) may assist the defendant in contesting the application, on the basis that there is no reasonable fear of future acts of domestic violence occurring.

Past acts of domestic violence alone, are not usually sufficient. The court has to be satisfied that the applicant has a genuine fear of being a victim of future violence, intimidation or harassment.

 

For assistance with an AVO or APVO, please contact us to arrange a free 20 minute consultation.