Written by our criminal lawyers Sydney team, this article is a guide and not to be taken as advice.
- Key Takeaways
- How to Get an AVO Dropped or Dismissed
- Defending an AVO
- Australia AVO: Personal Violence Order NSW vs Domestic Violence Order NSW
- A Police Officer Must Make an Application for an AVO in Certain Situations
- AVO Conditions NSW
- AVO Application: A Guide on How to Get an AVO | Grounds for an AVO
- Who Can Apply for an AVO?
- False or Misleading AVOs
- How to Revoke or Vary AVOs
- If a Child is Named as a ‘Protected Person’ in the AVO
- Who Can Revoke or Vary an AVO?
- How to Remove a Child’s Name From an AVO
- Breach of AVO
- Consequences of an AVO: What Happens After an AVO?
- How to Appeal the Children’s Guardian Decision to Cancel a Working With Children Clearance?
- What is an Interim AVO?
- How Long Does an AVO Last in NSW?
- Property Recovery Orders in AVO’s
- How to Get a Property Recovery Order in an AVO Case
- What Does a ‘Property Recovery Order’ Allow You to Do?
- What Happens If the Other Person Doesn’t Comply With the ‘Property Recovery Order’?
- What Happens if the ‘Protected Person’ Named in an AVO Doesn’t Attend Court?
- What Happens if the Defendant Named in an AVO Doesn’t Attend Court?
- What Happens if You Fail to Comply with Court Orders in an AVO Case?
- Does an AVO Go on Your Record?
- Can you Travel Overseas with an AVO?
- Example of the Court Making a ‘Timetable Order’ in AVO Cases
- How to Get the Other Side to Pay Your Legal Costs in AVO Cases
- Types of Cost Orders in AVO Cases
- Case Example of Getting Legal Costs Awarded in An AVO Case
- Can the Defendant Get Costs Awarded if the ‘Protected Person’ Named in the AVO Fails to Attend Court or Doesn’t Want the AVO?
- What Happens at an AVO Hearing?
- Can I Appeal an AVO?
An AVO can get dismissed in court if the other party fail to comply with the orders to serve and file their evidence on time, or through negotiations between the parties, or if the protected person or his/her representative fail to prove that the protected person has reasonable grounds to fear, and actually fears from the defendant (and if the AVO orders are considered necessary for the safety and protection).
The defendant can then seek for his/her legal costs to be paid by the other losing party. This guide outlines everything you need to know about AVOs in NSW and Australia, including how to revoke or vary an AVO order, how to recover property from the protected person’s home, how to defend AVOs, your options in AVO cases, consequences of breaching an AVO, consequences if one party fails to comply with a court order, consequences of having an AVO against you, and how to appeal an AVO order made by a local court magistrate.
What is an AVO? And do I have to go to court for an AVO?
If you are served with an AVO, you will be required to appear in court.
An ‘AVO’ is an abbreviation for ‘Apprehended Violence Order’.
An AVO can be a private AVO or police AVO. These are considered civil proceedings in court, not criminal proceedings. It can only become a criminal proceeding if an avo is breached -an avo breach is a criminal offence.
However, having an AVO does have its consequences- it affects family court proceedings in child custody disputes, working with children clearance checks, firearms licence/permit and tenancy agreement.
AVO applications are made by taking out an avo to protect a person(s) from another person.
An AVO order restricts or prohibits a defendant from contacting or from doing certain things to the person(s) who’s in need of protection referred to commonly as the ‘protected person’ in the AVO. This is achieved by the terms of the AVO conditions in NSW.
For example, a defendant named in an AVO can be restricted from contacting or approaching a ‘protected person’ named in the AVO. This restriction will also cover to protect any children of the ‘protected person’ (even if that child is also the defendant’s child).
A police AVO is an AVO issued by police on behalf of the protected person, and is usually related to a criminal charge that the defendant is also facing. Common charges relating to AVOs include
assault charged, intimidation charges, threat or damage property charges.
A private AVO will normally NOT be related to a criminal charge.
What this means, is that usually, if you’re issued with an AVO from police, you will also be charged with a criminal offence by police. The criminal charge and AVO are separate legal proceedings, but can and often do run together at the same time in court as they involve the same alleged victim(s).
If you’re issued with a private AVO, it will not be served by police. It will be served to you privately, and you won’t be charged with a criminal offence.
Although uncommon, police can and sometimes do decide NOT to file a criminal charge against the defendant, yet still issue and serve an avo police order on the defendant. This is usually where there is weak evidence against the defendant.
If you’re served with an AVO, it will either be in the form of a provisional avo, application for avo or interim avo. the AVO will never state the protected person residential address.
The courts allow a protected person or defendant in AVO hearings to have their chosen support person sit near them when giving evidence in court. You may exercise this option at your own discretion.
The relevant legislation on AVO’s in NSW is the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
In other States such as Victoria, an AVO is called either a family violence restraining order or personal safety intervention order. These are referred to as an intervention order. These orders can also be referred to as an interim intervention order.
How to Get an AVO Dropped or Dismissed
The following table outlines various ways that an AVO can be either dropped early or dismissed in court.
The various ways an avo can be dropped:
Negotiate with undertaking
This is where the parties agree to drop the AVO if the defendant offers to provide a signed and dated written undertaking to comply with the same order/conditions
Negotiate without undertaking
|This is where the defendant’s lawyer writes to the other side outlining the holes and inconsistencies in their evidence, with an offer not to seek the defendants’ legal costs if the avo is withdrawn.|
Other side fail to comply with court orders
|The court can dismiss the AVO if the protected person or police (or defendant and other side) fail to comply with the court orders to serve their evidence on time.|
Other party (protected person) fails to appear in court
|The court can dismiss the AVO if the protected person doesn’t appear on the hearing day in court.|
‘Protected person’ named in AVO doesn’t hold fears
|The court can dismiss the AVO if the ‘protected person’ gives evidence in court expressing that he/she holds no fears from the defendant. This only applies if there’s no child named in the AVO.|
|The court can dismiss the AVO if the court is convinced there’s insufficient evidence to prove the allegations i.e. of personal violence, intimidation or stalking conduct.|
Successfully defending AVO in court
|The court will dismiss the AVO if it forms the view that on balance, either the applicant has no reasonable basis to fear, and doesn’t fear the defendant committing a personal violence offence or intimidation or stalking conduct; and/or if the court forms the view that the AVO orders are not necessary for the protection & safety of the protected person(s).|
The Magistrate can decide not to require parties to comply with orders to serve written statements or evidence to the other side if convinced it would be “in the interest of justice”.
Possible examples where the Magistrate may dispense with the requirement for either or both parties to serve written statements is if either are illiterate, don’t comprehend English, or suffer from a mental health illness.
Defending an AVO
How can you fight an AVO? When defending an AVO in court, you must ‘oppose it’ from becoming ‘final’.
An AVO will be successfully defended if the court ends up dismissing it.
How to defend an avo in court:
|The court will dismiss an AVO if either of the following occur:|
If an interim AVO has been active for a lengthy period before the AVO proceedings conclude, the court may dismiss the AVO if there’s been no avo breaches during the interim avo period. This is because the court can then conclude that the ‘protected person’ has no reasonable grounds to fear.
Australia AVO: Personal Violence Order NSW vs Domestic Violence Order NSW
What’s the differences between an AVO, DVO & PVO?
Types of avos:
|Main Types of AVOs|
A Domestic Violence Order in NSW applies if there’s a “domestic relationship” between the defendant and ‘protected person’ named in the AVO.
A “domestic relationship” includes:
- Marriage (this includes an ex);
- Intimate relationship (sexual or not) (this includes an ex);
- If you are living or were living in the same home;
- Relative i.e. any blood relation, including half brother or sister
A Personal Violence Order, also known as a personal protection order in NSW is very similar to a Domestic Violence Order. However, a Personal Violence Order only applies in circumstances where the defendant and ‘protected person’ named in the AVO don’t have (and never had) a ‘domestic relationship’.
What is the significance of a DVO from an PVO? An avo domestic violence order automatically includes any children of the ‘protected person’ as ‘protected persons’ named in the AVO.
A child named in the AVO can have far reaching consequences on a defendant in any family court proceedings involving child custody or parenting orders later on.
A personal violence order, on the other hand, does not automatically include any children of the ‘protected person’ named in the PVO. For that reasons its often better to have a PVO than a DVO against you.
Another significant feature of a PVO that a DVO doesn’t have- is that in a personal violence order application, the court will be required to refer both parties (defendant and protected person) to mediation, in an attempt to resolve the AVO before finalising the AVO.
Mediation is then conducted by the Community Justice Centre who then produce a report to the court on the mediation outcome. After considering this report, the court can then decide on what to do with the personal violence order application. This can result in the PVO being dismissed before it even goes to hearing.
A Police Officer Must Make an Application for an AVO in Certain Situations
Under section 49 Crimes (Domestic and Personal Violence) Act 2007 (NSW), Police MUST apply for an AVO court order (or avo restraining order) in an attempt to protect the ‘protected person’ from the defendant in the following circumstances:
- Where the police officer suspects that a domestic violence offence or intimidatory conduct by the defendant has occurred, is occurring, or is likely to occur; or
- The defendant has already been charged and facing court for a domestic violence or intimidation/stalking offence.
However, the police do not need to make an application for an AVO if:
- The ‘protected person’ is 16 years or older at the time; and
- The police officer investigating the case believes that the ‘protected person’ intends to make an AVO application or where the police officer believes there’s ‘good reasons’ to not make an AVO application against a defendant.
If the police officer decides not to make an AVO application for ‘good reasons’, the police officer will have to provide written reasons on file. Generally, ‘good reason’ WON’T include a situation where the alleged victim is reluctant to apply for an avo.
AVO Conditions NSW
AVO conditions restricts & prohibits the defendant named in the AVO from doing certain things in respect to the protected person named in the AVO.
A Court will only impose AVO conditions that are considered ‘necessary or desirable’ to ensure the safety and protection of the ‘protected person’ and any child of that person. This is reflected in section 35 and 17 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
All AVO applications contain the standard mandatory conditions. They can also come with additional conditions if it’s ‘necessary or desirable’ to ensure the safety and protection of the ‘protected person’ and any child.
Mandatory AVO Conditions:
|Every AVO will expressly state the ‘mandatory orders’ prohibiting the defendant from doing the following 3 things:|
The above 3 mandatory AVO orders/conditions are things you must NOT do. By breaching any of them you can expect to face a further charge of a breach of AVO which attracts heavy penalties.
Additional AVO conditions:
|The court can impose any one or more of the below additional AVO conditions to prohibit or restrict the defendant from doing any of the following:|
AVO Application: A Guide on How to Get an AVO | Grounds for an AVO
How do you get an AVO on someone in NSW? To take out an AVO against someone, an AVO application must first be made.
That application can be made at the local court registry or at your nearest police station.
If the AVO application is approved, it becomes a provisional AVO which lasts for 28 days- the defendant can be arrested and charged if the defendant breaches the provisional AVO orders/conditions.
A court date will usually be set within 28 days from when the provisional avo is made.
The court can turn this provisional AVO into an ‘interim AVO’, which effectively continues the AVO to the next court date if the matter isn’t finalised on the first date.
The AVO will then continue on an interim basis until the court either:
- Turns it into a final AVO; or
- Dismisses the AVO; or
- Revokes the AVO; or
- If police or applicant of the AVO end up withdrawing the avo.
How to get an avo against someone:
|How to Get a private AVO||
To get a private AVO against someone else, you must make an application for an AVO.
A provisional AVO can then be made by drafting and filing an application notice with the local Court- this can be done by sending a fax, email or filing it by attending the local court registry.
A Registrar or Magistrate of the local court can then make the provisional AVO if satisfied that there are reasonable grounds for doing so.
|How to Get a Police AVO||
To get a police initiated AVO, a senior police officer can make an application for an AVO.
A provisional AVO can be made at the request of a police officer via telephone, fax or email.
The senior police officer can only make a provisional AVO if he/she believes there’s reasonable grounds for it.
A Registrar or Magistrate of the Local Court can also make a provisional AVO at the request of a police officer on the same basis.
If a provisional AVO is made by a senior police officer or a Registrar or Magistrate, the provisional AVO must also be personally served on the defendant named in the AVO.
When an avo application can be refused by a Registrar or Magistrate:
|Magistrate or Registrar Can Refuse to Make a Provisional Violence Order (Where it’s Applied for by Someone Other Than Police) If:|
When an avo application must be accepted by a Registrar or Magistrate.
|Registrar or Magistrate are Generally Required to Accept an Application for a Provisional Violence Order if the Allegations are Any of the Following:|
In deciding whether or not to accept the application for a provisional violence order, the Registrar or Magistrate of the local court will consider the factors outlined in the below table.
|Registrar or Magistrate are Generally Required to Accept an Application for a Provisional Violence Order if the Allegations are Any of the Following:|
The Grounds to Get a final AVO in Court:
|A Final AVO Will Only be Granted by the Court if the Following Two Tests are Met:|
If the ‘protected person’ in the AVO is a child, for the court to grant a final AVO protecting the child, it only needs to be satisfied on the balance of probabilities that the child has reasonable grounds to fear a personal violence offence, intimidation or stalking behaviour by the defendant in the avo. Here the court isn’t required to consider whether the child actually holds fears, see section 16(2) & 19(2) Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Before applying for an AVO, it’s a good idea to contact the Court on 1300 679 272 to find out what your local court’s preference is in making an AVO application.
Some may prefer that you come in and speak to a Registrar, others will be happy for you to complete and file an application form.
Click here for a sample personal violence order nsw application form.
Click here for a sample domestic violence order application form.
Who Can Apply for an AVO?
According to section 48, an AVO application can be made by any of the following people:
- The person needing protection referred to as the ‘protected person’
- A guardian of the person needing protection
- Police officer
If the protected person is a child, only a police officer can make an application for an AVO.
If a police officer makes an AVO application on your behalf, the AVO application can also protect more than one person as the ‘protected person’.
If the ‘protected person’ made or makes the AVO application, then the protected person named in the AVO can also ask for the AVO to cover anyone else whom he/she has a domestic relationship with, including children, partner, or other family members.
A person who is between 16-18 years of age can make an AVO application on their own.
Applications for AVO’s can now be made by either attending a local court registry, or your local police station.
A senior police officer can make a provisional AVO on-the-spot, which lasts for 28 days. The AVO will then normally be listed in court within that 28 day period when the court can either dismiss, extend or finalise the AVO.
False or Misleading AVOs
It is a crime to knowingly make a misleading or false statement (in a material particular), orally or in writing if that statement is made to a registrar or Magistrate in making an avo application.
Section 49A Crimes (Domestic and Personal Violence) Act 2007 (NSW) imposes a maximum fine of $1,100 or 12-months jail, or both in addition to a criminal conviction.
How to Revoke or Vary AVOs
Revoking an AVO means to remove it. Whereas to vary an avo means to change the conditions (or orders) of it.
You can apply to revoke or vary an AVO simply by applying to the local court under Division 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Any of the relevant parties can revoke or vary an avo, including the defendant, the protected person or the police.
The grounds of the application to revoke or vary must also be outlined in the application before lodging it with the court.
A court can revoke or vary an AVO if:
- Circumstances on which the AVO was initially based on has since changed; and
- The application to vary or revoke it is NOT in the nature of an appeal; and
- It is proper in all the circumstances to revoke or vary the AVO (only applies to private AVOs); and
- A notice of the application has been served to the protected person named in the avo (if the protected person is making the application then the protected person must also serve a copy of the application to the defendant; for police AVOs, a copy of the application must also be served to the commissioner of police); and
- The application must be served personally to the other party or in a manner the court directs.
For private AVOs, if a child is named as a ‘protected person’ in the AVO, the court may notify the Commissioner of Police if the court believes it would be in the best interest of the child- in order to give police an opportunity to appear in the application.
If a Child is Named as a ‘Protected Person’ in the AVO
If a child is named as a protected person in the AVO, the court can revoke or vary the AVO if the following steps are met:
- The Court grants leave (permission), which will occur if:
- There is a significant change in circumstances since the AVO was first made or varied; OR
- It’s in the interest of justice to grant leave; OR
- The application to revoke is made by Department of Family and Community Services (DOCS) on the basis that a care plan for the child is inconsistent with the police AVO; AND
- Notice of the application is served to the Commissioner of Police; and
- There will be no significant increase in the risk of harm to the child; and
- Circumstances on which the AVO was originally based on has since changed; and
- The application is NOT in the nature of an appeal; and
- It’s proper to revoke or vary it in all the circumstances (this only applies to private AVOs); and
- A copy of the application is served to the other part either personally or in the way ordered by the court.
If the application is only to vary the avo (not revoke it), then the safety and protection of the protected person and child will also be considered by the court.
Who Can Revoke or Vary an AVO?
An ‘interested party’ can apply to either revoke or vary an AVO.
An ‘interested party’ includes, the people named in the avo i.e. defendant, protected person, police officer.
How to Remove a Child’s Name From an AVO
A child being named in an AVO as a “protected person” has significant consequences on a defendant named in an AVO for the following three main reasons:
|Restricts Access to Your Child||
If you‘re the defendant and the AVO includes your childs’ name as a protected person, the AVO orders can restrict or prohibit you from contacting or seeing your child, or it may allow you to see your child only with supervision- restricting your access significantly for the duration of the AVO.
|Effect on Child Custody Family Court Disputes||
An AVO with your child’s named on it can be used against you in any child custody or parenting disputes in Family Court proceedings. This can influence a more unfavourable outcome to you, further restricting access to your child by the Family Court. An AVO is commonly used by the other side against you with this
|Harder to Revoke or Vary AVOs||
In the same scenario, the AVO with your childs’ named on it, makes it more difficult for you to later revoke or vary the AVO orders. For AVO’s where the police act on behalf of the “protected person”, you cannot revoke or change the AVO orders/conditions unless the Court grants you leave to even make the application. This imposes an extra hurdle to pass which you would
AVOs involving domestic relationships referred commonly as DVOs automatically extend to protect any child of the ‘protected person’ named in the AVO. This extends to partners and family members.
This means that if you’re a defendant in an AVO with conditions restricting you access or communication to your partner (or ex-partner), the AVO conditions will automatically extend to include the same conditions to protect any child of your partner (or ex-partner). Even if that child is also your child.
You can ask the court NOT to include the child in the AVO if the court can be convinced there are good reasons to NOT include the child as a “protected person” in the AVO.
‘Good reasons’ can include the following circumstances:
- There’s no direct physical violence or threats of violence towards the child.
- There’s no physical violence in the presence of the child.
- The basis of the other side trying to get an AVO against you only involves the use of words, not conduct.
- There’s no allegation of the child ever being present when the conduct complained of occurred.
Breach of AVO
Breaching a DVO or PVO is a crime, which will result in a criminal charge.
The Courts in NSW take the breach or contravention of an AVO extremely serious.
A court is required to consider an imprisonment sentence if the AVO breach involved violence towards the ‘protected person’ named in the AVO (section 14(4)).
There are two main types of imprisonment sentencing options available, namely:
- Full-time Imprisonment; and
- Intensive Correction Order (ICO), where you don’t go to jail, but placed on strict conditions.
Maximum sentence for AVO breaches:
|Contravention of AVO (Breach of AVO)
Section 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW)
|$5,500 fine or 2-years jail, or both|
To be guilty of an AVO breach, the police must prove the following 2 elements outlined in the below table.
The onus of proof for AVO breach charges:
|Charge||What the Police Must Prove in Court|
|Contravention of AVO (Breach of AVO)
Section 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Defences to a Breach of AVO Charge
|You didn’t know||
You didn’t realise that you were breaching an AVO condition at the time. i.e. you weren’t in court when the AVO was made and therefore not aware of the AVO conditions, or you didn’t know a person you are prohibited from being near was standing near you.
|Property recovery order defence||
You were complying with a property recovery order to attend the premises of where the ‘protected person’ lives to retrieve your belongings.
You attended a court referred mediation to resolve the AVO dispute, despite the AVO conditions prohibiting you from approaching or contacting the ‘protected person’.
|Not served with AVO defence||
You weren’t served with a copy of the AVO conditions, or you weren’t in court when the AVO was made.
Where the breach of avo was incidental to you protecting yourself or someone else or your property.
Consequences of an AVO: What Happens After an AVO?
Consequences of an AVO on You
|Family Court proceedings: Child custody parenting disputes||
Having an avo against you as a parent where the ‘protected person’ is also a parent to your child can affect you as a parent in parenting and child custody disputes in family court proceedings, in the following ways:
i.e. If you finalise the avo by consent but without admissions to the allegations.
The Family Law Act 1975 (Clth) requires a party to a parenting or child custody dispute in court to advise the court of any AVO involving a child or family member of the child. The court is then allowed to take this into account.
|Employment & Working With Children Clearances||
An avo can prevent you from getting a job involving working with children because it can prevent you from getting a working with children clearance (WWCC).
An employer may also be more hesitant to give you a job due to the longer process a person with an avo will have to go through for a WWCC.
The Children’s Guardian will cancel your WWCC if it considers you to be a risk to children safety after it conducts a risk assessment on you. Otherwise it may impose an interim-bar.
|Firearms Licence or Permits||
As a defendant to an avo, your firearms licence or permit will be suspended automatically upon an interim-avo being made.
The firearms licence/permit gets automatically revoked if a final avo is made.
If either of these two things occur, you must surrender your firearm or weapon to the police.
See section 23 & 24 of the Firearms Act 1996 (NSW), and section 17 and 19 of the Weapons Prohibition Act 1998 (NSW).
|Termination of Tenancy Agreements||
A residential tenancy agreement will be terminated if a final avo is made in court against you if the avo condition stops you as a tenant from accessing or attending the premises (section 79 of the Residential Tenancies Act 2010 (NSW)).
It is common for the ‘protected person’ named in the AVO to use the existence of an AVO against the defendant named in the AVO, to later suggest to the Family Court that the defendant is an unsuitable parent in child custody and parenting disputes.
Family Courts are experienced enough to recognise that some AVO’s are used tactfully in attempts to influence the Family Court to impose more favourable parenting order for one parent over the other.
As a result, in such circumstances, Family Court Judges may give little to no weight to certain AVO’s in child custody disputes, especially if the AVO is consented to by the defendant where the facts are not admitted nor proven.
How to Appeal the Children’s Guardian Decision to Cancel a Working With Children Clearance?
You can appeal the cancellation or refusal of your working with children’s check clearance.
You can appeal directly to the NSW Civil and Administrative Tribunal (NCAT) for an administrative review under the Administrative Decisions Review Act 1997.
You can make this appeal within 28 days after receiving the cancellation or refusal notice.
Where you receive an interim-bar stopping you from working with children temporarily, you can also appeal this decision only after the interim-bar has been in place for at least 6 months.
What is an Interim AVO?
An “interim AVO” is a temporary AVO order imposing conditions in the form of restrictions and prohibitions on a defendant named in the AVO.
Interim avo conditions are legally enforceable. There will be criminal charges if they are breached during the existence of this type of avo.
An interim AVO isn’t a criminal charge, and is not considered a criminal proceeding in court. This means, an interim AVO doesn’t give you a criminal record or conviction.
An interim AVO remains in force until the AVO proceedings are concluded.
An interim avo will conclude or cease to exist if the avo is either dropped, the defendant consents to the avo becoming final, the court dismisses it or turns it into a final ago.
How Long Does an AVO Last in NSW?
How long is an AVO for? This is a common question.
When does an AVO expire?
|For Final AVOs||
Section 79 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) says that a final AVO lasts for as long as it says in the AVO. The period imposed by the court can be for “as long as is necessary in the opinion of the Court to ensure the safety & protection of the ‘protected person’.”
If the Court doesn’t specify how long it will last for, then the final AVO will remain in force for 1 year from the day it was made in court. A court will normally impose a final avo for a period of 6 months to 2-years.
|For Provisional AVOs||
Once an application for an AVO is made, it isn’t enforceable until it becomes a ‘provisional AVO’ first. This is what an AVO starts off as on the first court date in an AVO case.
The court can then extend this avo past the first court date by turning it into an ‘interim AVO’ or ‘final AVO’.
A provisional AVO can only last for the first 28 days from when it gets made. A provisional AVO can be made before the first court date or on the first court date.
|For Interim AVOs||
An ‘interim AVO’ is often made on the first court date by a Court to extend the period of the AVO, until at least the matter is finalised in court.
An interim AVO can last for the entire AVO court case until it gets either dropped, dismissed, or becomes a ‘final AVO’ in court.
Property Recovery Orders in AVO’s
Some AVO’s may have conditions that prevent you from contacting the ‘protected person’, or attending or entering the house where the ‘protected person’ lives in (even though you also live in that house).
This will prohibit you from attending that home despite you needing to go back there to retrieve some of your property i.e. clothes, car, jewellery etc.
Alternatively, the ‘protected person’ named in the AVO may want to retrieve belongings still located in your home.
To be able to safely go to that house to retrieve your belongings, without breaching the avo conditions, you must apply to the court for a ‘property recovery order’.
How to Get a Property Recovery Order in an AVO Case
Section 37 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) allows you to request the court to can make a ‘property recovery order’, to allow you to attend and retrieve your belongings left at the other person’s home if:
Your personal belongings are left at the other person’s home (named in the avo); and
After disclosing any family law property orders (or pending orders) from the Family Court.
What Does a ‘Property Recovery Order’ Allow You to Do?
A ‘property recovery order’ has the following effect in avo cases:
- It can allow for a nominated person to accompany you to retrieve the items from the house;
- It can require you to be accompanied by a police officer when attending to retrieve your belongings from the house;
- It can specify that the time to attend and retrieve your belonging be pre-arranged by agreement between the person who occupies the house and police officer beforehand;
- The person who resides in the home that your belongings are left in can be directed to allow you access to the house to retrieve those belongings. This includes access to a police officer that accompanies you.
- It can specify the actual items you seek to retrieve back;
A ‘property recovery order’ doesn’t allow anyone to use force to gain entry to the house.
For example, if the ‘protected person’ named in the AVO is granted a ‘property recovery order’ to retrieve some belongings from the defendant’s homes – ‘the protected person’ is not allowed to use force to gain entry even if the defendant refuses entry.
Only the items listed in the ‘property recovery order’ are allowed to be retrieved, nothing else.
What Happens If the Other Person Doesn’t Comply With the ‘Property Recovery Order’?
Non-compliance with a ‘property recovery order’ occurs, for example where the other party to the AVO refuses or obstructs your access to the premises, or prevents you from retrieving your belongings.
Contravening or obstructing a person from trying to comply with a ‘property recovery order’ will result in a fine of up to $5,500.
As a defence to this, you can only breach a ‘property recovery order’ if there’s a reasonable excuse’.
What Happens if the ‘Protected Person’ Named in an AVO Doesn’t Attend Court?
The below table outlines the consequences of the ‘protected person’ in avo proceedings failing to attend court.
The consequences if the avo applicant fails to attend court:
|If No Appearance on AVO Hearing Date in Court||
If the ‘protected person’ named in the AVO fails to attend court on the AVO hearing date, the Magistrate may dismiss the AVO after proceeding to hearing on the day if:
|If No Appearance on the Second or Subsequent ‘Mention’ Date in Court||
The Magistrate can ‘strike out’ the AVO on a second or subsequent ‘mention’ court date if:
This means, that the AVO can be dismissed by the court- if the other side have failed to appear and have failed to comply with the court orders.
|If No Appearance on first AVO Court Date||
If the ‘protected person’ named in the AVO fails to attend the first court date, the Court cannot make an ‘interim AVO’ unless:
In those circumstances, the Magistrate will be allowed to look at any affidavit or statement given by a police officer on behalf of a ‘protected person’.
What Happens if the Defendant Named in an AVO Doesn’t Attend Court?
The below table outlines the consequences of the defendant in avo proceedings failing to attend court.
The consequences if the avo defendant fails to attend court:
|If No Appearance on AVO Hearing Date in Court||
Where the defendant fails to attend, but the ‘applicant’ or ‘protected person’ named in the AVO attends court for the AVO hearing, the court can make a final AVO against the defendant.
The Court can do this after it proceeds to hear the AVO on the day, if each of the following are satisfied:
|If No Appearance on the Second or Subsequent ‘Mention’ Date in Court||
The Magistrate may make a final AVO against the defendant on a second or subsequent ‘mention’ court date if:
What Happens if You Fail to Comply with Court Orders in an AVO Case?
If you’ve failed to comply with court orders to serve your statement(s) or other evidence to the other side on time, you will generally NOT be allowed to rely on evidence you then wish to put forward on your hearing date in court, unless the court grants you leave (permission) to use this evidence in court.
The Court will only allow you to put forward your evidence if it considers it to be in the interest of justice.
If the court refuses to allow you to give your evidence i.e. oral evidence in the absence of having served a written statement, the court can decide the AVO in favour of the other side.
Does an AVO Go on Your Record?
Does an AVO Show up on a Police Check, and is AVO civil or criminal?
An AVO is a civil proceeding in court. It’s NOT a criminal charge, therefore it’s NOT a criminal proceeding.
AVO’s can have many other unforeseen consequences, it WON’T show up on a police background check, such as a national police check.
Will an AVO affect my job? An AVO will show up if you’re trying to get or maintain a working with children clearance check.
An AVO is considered in a working with children clearance check by the Childrens’ Guardian.
If you were to breach an AVO by failing to comply with its conditions, then the AVO will become a criminal offence, resulting in a criminal charge against you. If you’re found guilty for the charge of breaching an AVO, then it becomes a criminal proceeding, which will show up on a police check.
Can you Travel Overseas with an AVO?
Having an AVO against you will normally NOT prevent you from traveling overseas or interstate.
AVO’s, whether interim or final, are not criminal in nature. AVO’s are civil cases usually dealt with by a Magistrate in the Local Court.
Breaching an AVO, on the other hand, is a criminal charge, and can affect travel.
Example of the Court Making a ‘Timetable Order’ in AVO Cases
Where the defendant opposes an AVO in court, it means he/she is contesting it from becoming ‘final’. In that case, the Court will make the following type of order, called a ‘timetable’:
- The “applicant” or “protected person” named in the AVO paper is to serve written statement(s) intended to be used as evidence in 2 weeks, usually from the first court date.
- The defendant named in the AVO is to serve written statement(s) in reply (intended to be used as evidence) in 4 weeks from that court date.
- The case will then be adjourned for 5 weeks to a second or subsequent court date for ‘mention’ or ‘compliance date’ in order for the court to be updated on whether parties have complied with these orders.
Where the defendant and “protected person” named in the AVO are not legally represented, each party are to serve their written statements (or other evidence) to the court registry, where it can be collected by the other party.
The defendant in the AVO won’t be able to serve their statement/evidence in reply, UNLESS the other side serve their statement and evidence first.
How to Get the Other Side to Pay Your Legal Costs in AVO Cases
How to Win Costs in AVO Cases?
It isn’t easy to convince the court to order the other side to pay your legal costs or fees, but it’s definitely achievable and has been achieved in court many times.
To successfully achieve this, it’s important to understand and be familiar with the AVO laws.
Below is a guide on how to get the police (or ‘protected person’) to pay your legal costs in an AVO case.
Getting costs in AVO cases require experienced AVO lawyers to carefully prepare and persuasively present your case for costs in court.
Types of Cost Orders in AVO Cases
The law on costs in AVO cases is section 99 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It allows the court to order the police to pay your legal fees in certain circumstances in AVO cases, outlined here.
3 Types of Cost Orders the Court Can Make are outlined in the below table.
The types of avo cost orders in court:
|Costs for an adjournment||
The court can order that the alleged victim/protected person or the police officer in the AVO pay your legal costs for arranging a lawyer to appear in court for you, if that court date ends up being adjourned to another date due to the other sides ‘unreasonable conduct or delay’.
An example of this is where your case ends up getting adjourned to another court date due to the other sides fault(s)- the other side’s continued failure to comply with court orders.
Section 99 Crimes (Domestic and Personal Violence) Act 2007 (NSW)
|Costs against the alleged victim (‘protected person’) at the end of the AVO Case||
The court can order that the alleged victim (who made the AVO complaint) pay your legal costs in the AVO proceedings where:
|Costs against the police officer (‘applicant’) at the end of the AVO case:||
The court can order that the police officer (who made the AVO application on behalf of the alleged victim (protected person)) pay your legal cost in the AVO proceedings if the court is satisfied that either one or more of the following occurred:
Where the AVO is related to a criminal charge, section 214 Criminal Procedure Act 1986 (NSW) allows the court to order the police prosecutor to pay your legal fees if:
- The investigation of the allegations was unreasonable and improper in the manner conducted by police; or
- The AVO proceedings started without reasonable cause, or in bad faith, or it was conducted by the prosecutor in an improper manner; or
- The police prosecutor unreasonably failed to investigate a relevant matter which if aware, or aught reasonable to have been aware, which suggested you might be ‘not guilty’; or
- Due to other exceptional circumstances relating to the conduct of the proceedings by police, it’s just and reasonable to award costs.
These types of charges with avo’s are referred to as domestic violence charges. If you’re facing this, get in touch with our domestic violence & AVO lawyers in Sydney today.
Case Example of Getting Legal Costs Awarded in An AVO Case
An avo cost case example:
|Case of Redman v Willcocks |
This case was a Supreme Court decision considering the issue of legal costs in an AVO case.
It held that, because the person who made the complaint told the police officer that she no longer feared the defendant, the police then confirmed with the defendant that this was true, but advised the defendant that appropriate paperwork had to be done to confirm whether the AVO was to be dropped or not.
The police didn’t end up confirming the withdrawal of the AVO. This caused the defendant to pay a lawyer to attend court for the hearing day on the basis that it was highly probable that the matter would still proceed.
The police had failed to undertake the necessary paperwork which was sufficient grounds for the court to order costs against police.
In this case, the costs order was made due to the procedural failures by the police, which caused the defendant to incur legal costs of having his lawyer appear on the AVO hearing day in court.
Can the Defendant Get Costs Awarded if the ‘Protected Person’ Named in the AVO Fails to Attend Court or Doesn’t Want the AVO?
Generally, a police officer (who made the AVO application on behalf of the ‘protected person’) CANNOT be ordered to pay defendant’s legal costs in DVO proceedings if the police officer made the AVO application in good faith, even if the ‘protected person’ named in the AVO does any one or more of the following:
- Indicates to police that he/she will be giving unfavourable evidence in the police case.
- Indicates to police that he/she doesn’t want the AVO.
- Indicates to police that he/she holds no fears from the defendant in the AVO.
- Attends court and gives unfavourable evidence in court.
- Doesn’t end up attending court to give evidence for police.
Generally, the ‘protected person’ named in the AVO cannot be ordered to pay the defendant’s legal costs in the apprehended domestic violence order or apprehended personal violence order proceedings if the ‘protected person’ simply fails to appear in court.
What Happens at an AVO Hearing?
A contested AVO hearing is called a ‘show cause hearing’ in the Local Court.
Written Statements as Evidence in Court
All evidence is given by written statement(s) by each party in court, namely the ‘protected person’ and the defendant give their evidence through written statements.
The written statements are required to be served to each party before the hearing day.
This means, the ‘protected person’ (or police, or lawyer acting on behalf of the ‘protected person’) is required to serve their written statements to the defendant in the AVO. The written statement is meant to form the basis of convincing the court to make a final AVO against the defendant.
After the defendant receives a copy of that written statement, the defendant will then be required to draft and serve a copy of his/her own written statement in reply to the other side.
Opening of the Applicant’s Case
On the avo court hearing, the ‘protected person’ will rely on his/her written statement to the court as ‘evidence in chief’.
The Presiding Magistrate will read that statement. After this occurs, the ‘protected person’ while in the witness box of the court room will then be subjected to questioning by the defendant (or defendant’s AVO lawyer). This questioning is called ‘cross-examination’.
During cross-examination, the defence will test the ‘protected person’s’ evidence so far and outline inconsistencies. If this is done well by an experienced AVO lawyer, it can create significant doubts in the other side’s case, leading the court to disbelief the ‘protected person’s’ version.
After the ‘protected person’s’ cross-examination is complete, the same process will occur for any other witnesses for the ‘protected person’s’ side.
After all this evidence is concluded, the Defendant will be asked to open its case. The defendant is not necessarily required to give evidence, but can choose to do so.
Whether or not the defendant chooses to give evidence in reply really depends on the ‘protected person’s’ evidence. Generally, the defendant ends up choosing to give evidence.
Opening of the Defendant’s Case
Once the all evidence has been given and subjected to cross-examination, the defendant will get into the witness box of the court and rely on his/her written statement during the hearing. This will be considered the defendant’s evidence in chief.
The Magistrate will read the defendants’ written statement.
After this, the defendant will then be subjected to cross-examination by the ‘protected person’ (or either the police prosecutor, or lawyer acting for the ‘protected person’).
During cross-examination of the defendant, the other side will try to test the defendant’s version, while attempting to raise inconsistencies in order to try to convince the court to not accept the defendant’s version.
At the conclusion of the defendant’s evidence, the same process will occur for any of the defence witnesses.
Where a child is a witness in an AVO hearing in court, the defendant is not allowed to cross-examine the child. The cross examination can only be done by the defendant’s legal representative or a suitable person appointed by the court (s41A). This is important to remember if your case involves a child witness.
After the defence evidence has all been given in court, the defence will close its case.
Submissions in Court at the Conclusion of All the Evidence
Once both sides have closed their cases, the Magistrate who has heard both sides of the evidence will decide whether or not to make a final avo order.
The Magistrate will then either dismiss the AVO, or order an final AVO against the defendant with conditions. Either way, the AVO case will then come to an end.
Can I Appeal an AVO?
There are two main types of AVO appeals in NSW. The first is an appeal to the District Court, and the second is a review by way of an annulment of the local court decision to make or dismiss the avo application. Both are outlined in the below table.
The types of avo appeals in NSW:
|AVO Appeal to the District Court
Section 84(2) Crimes (Domestic and Personal Violence) Act 2007 (NSW).
A defendant or applicant (‘or protected person’) has a right to appeal a local court’s AVO decision if the Local Court has done any of the following:
If a defendant has consented to an avo in court, yet later wishes to appeal that avo, then the District Court’s permission will first be required in order to be allowed to appeal.
|Annulment: AVO Review in the Local Court
Section 84(1) & 84(1A) & 84(1B) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
A defendant can apply to the local court to annul an avo order that was made in the absence of the defendant in court, if:
An applicant, such as the ‘protected person’, or police or lawyer acting for this person can ask the court to annul the original order by the local court to dismiss the avo, if the avo was dismissed in that person’s absence in court, and if there is just cause for doing so given the circumstances.