In New South Wales, apprehended violence orders (‘AVOs’) may be sought against young persons.
AVOs are court orders which seek to protect a person from another who causes them to fear for their safety, by imposing certain conditions.
They are essentially civil proceedings and are not considered ‘criminal’. However, breaching an AVO is a criminal offence, which carries a maximum penalty of 2 years imprisonment and/or a $5,500 fine.
There are two types of AVOs being ‘domestic’ (which can be imposed upon people such as a family member, spouse, or ex-partner) or ‘personal’ (which can be imposed upon people such as a neighbour, co-worker, or friend).
They can also be ‘private’ (when initiated by the person seeking protection) or they can be initiated by the police, on behalf of the person in need of protection (‘PINOP’).
However, if a child is under the age of 16, an AVO can only be taken out against them by the police.
In most cases related to young persons, the application will be brought by police.
Prior to the matter being heard in court, police have the power to impose temporary orders, referred to as a ‘provisional order’. Where a young person is under the age of 16 years of age, the police cannot impose orders that prevent them from living in their home.
Condition 1 is a mandatory condition that will appear on all AVOs, which details that the defendant must not do any of the following to the protected person/s or anyone that they have a domestic relationship with:
- assault or threaten them,
- stalk, harass or intimidate them,
- intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them.
Additional orders that may be sought include orders about contact which will state: ‘you must not approach the protected person or contact them in any way, unless the contact is through a lawyer.’
They may also include orders about where you cannot go or whether you can be in someone’s presence after consuming drugs or alcohol.
AVOs sought against young persons under the age of 18 are heard in the Children’s Court.
When the application for a domestic or personal violence order has its first court date, the Children’s Court Magistrate will enquire whether the young person would participate in family, relationship or individual counselling or other interventions, such as mediation.
This seeks to address the issues which led to the making of the application.
If a Court Support Officer (‘CSO’) is available, the young person will be directed to speak with them.
The CSO can then carry out a brief assessment which seeks to determine whether there is suitable counselling or mediation available for the young person and, in appropriate cases, their family.
During this assessment, the CSO may speak with members of the young person’s family.
If a CSO is not available, the young person, with the assistance of their legal representative, should ascertain the availability of suitable counselling or other intervention services.
Where the young person agrees to undertake counselling or engage in other interventions, their legal representative will inform the court of the relevant counselling or other intervention service and, if it is known, when the young person will have their first appointment with the service.
The Magistrate will record this information on the court file.
If the prosecutor and young person consent, the court will then make an interim AVO and adjourn the proceedings for 3 months to allow the child to engage with the relevant counselling or other intervention service.
Where there is no suitable counselling services or other intervention services available, or the young person does not wish to participate in this, the court may nonetheless make an interim AVO, but instead adjourn the proceedings for 5 months.
During the adjournment period (whether 3 or 5 months), if there are no breaches of the interim order, the application may be withdrawn and dismissed by the court on the date the matter is adjourned to.
The other options include the court making a final AVO by consent of the young person, or the young person choosing to contest the order, leading to the court making directions for the matter to be set down for a defended hearing.
However, due to the benefits of consenting to an interim order, within the matter being withdrawn and dismissed if there are no breaches, it is not often that a young person would be advised to defend a domestic or personal violence order application.
This is due to how a defended hearing may be listed many months away, and the young person will be subject to an interim order for this period in any event. There is also always the risk of ‘losing’ the defended hearing, and a final order being made for a further period of time.
It is important to note that if the person in need of protection on the final domestic or personal violence order is another child, this can lead to issues with the young person obtaining a Working with Children Check.