Complete Guide on Breach of AVO Laws in NSW

Breach of an AVO in New South Wales occurs as a result of breaching AVO condition(s). An AVO breach is a criminal offence in NSW, carrying a jail sentence, fine, and a criminal record, prescribed in section 14 of the Crimes (Domestic and Personal Violence) Act (NSW).

All AVOs contain specific conditions to protect a ‘person in need of protection’ (PINOP) named in the AVO.

If the Defendant in an AVO fails to comply with one or more of the AVO conditions, it will result in an AVO breach, also known as contravention of AVO criminal offence.

The AVO conditions can extend to protect people other than the PINOP, including the PINOP’s children, partner or family member (only applies in DVOs).

Breach AVO Jail Terms | Contravene AVO Penalties

The penalties for breaching or contravening an Apprehended Personal Violence Order (APVO) or a Domestic Violence Order (ADVO) can be severe.

The penalties for breaching an ADVO is usually heavier than the penalties for breaching an APVO under the law.

Maximum Penalty for Contravening/breaching an AVO

Charge Maximum Penalty
300 51.8%

Consequences of Breaching an Apprehended Violence Order

What happens if you breach an AVO? A Judge or Magistrate in court is required under section 14(4) of the Crimes (Domestic and Personal Violence) Act (NSW) to impose a jail sentence to an offender who’s guilty of an AVO breach charge if the offending conduct was an act of violence against a person.

In those circumstances, if the court decides not to impose a jail sentence, the court must provide reasons for taking this course.

A jail sentence includes either full-time imprisonment or an alternative to full-time jail, namely an Intensive Correction Order (ICO).

Anyone guilty of committing a domestic violence offence, will end up facing one of the following types of sentences/penalties in court:

  1. Full-time Imprisonment
  2. Intensive Correction Order (involving supervision)
  3. Community Correction Order (involving supervision)
  4. Conditional Release Order (involving supervision, either conviction or non-conviction similar to section 10)

If you’re guilty and convicted of a domestic violence charge, the conviction will be recorded on your record as a domestic violence offence. This will have the following consequences:

  • Any prior offences reflected on your record can also be marked as domestic violence offences if they were domestic violence offences, which can then affect any future bail application, if you ever get in trouble with the law again.
  • If ever appearing in court in the future for allegations of domestic violence, the previous recorded domestic violence offence can be used against you in determining whether you stalked or intimidated the complainant in any new allegations brought to court.
  • The previous recorded domestic violence offence can be used by police as a reason to take out a new AVO against you in the future.
  • The sentence can be much harsher if you end up being sentenced by the court into the future again for a domestic violence offence, even if unrelated.

What to do if an Apprehended Violence Order is Breached?

If an existing AVO is breached, what to do depends on whether you’re the defendant, PINOP or witness to the alleged contravention.

If an AVO is allegedly breached, and you’re the defendant who is accused of breaching it, you should immediately contact a lawyer who specialises in AVO cases, such as an experience criminal lawyer.

It’s highly recommended to speak to a criminal lawyer before speaking to police to avoid making the situation unnecessarily worse, and to know your rights and what to expect.

It’s possible that police will refuse you bail at the police station, which may require you to make an urgent bail application in court.

If an AVO is allegedly breached, and you’re the PINOP in the existing AVO, then you should generally seek independent legal advice from an AVO lawyer, or report it to the police. If police become aware of a potential AVO breach by the defendant, they will investigate this. This means they will contact the PINOP for purposes of providing a written or video statement, which will then form part of the police evidence.

Any witnesses to an alleged breach of AVO may be approached by police for purposes of providing a statement. If the witness agrees to providing a statement, it will then go towards proving the contravention against the defendant.

Witnesses should generally cooperate and not hinder or conceal a serious crime, which can otherwise result in separate criminal charges. However, any such witness can also obtain independent legal advice about this.

Contravene Meaning

Contravening an AVO means breaching an AVO, which occurs if a defendant in an existing AVO fails to comply with any one or more of the conditions outlined within the AVO, whether the AVO is provisional, interim or final.

Difference between an ADVO and APVO

An apprehended domestic violence order (ADVO) only applies in a ‘domestic relationship’, where the PINOP and defendant are partners (or ex-partner), in an intimate relationship, live together (or used to live together), or a family or relative.

An apprehended personal violence order (APVO) only applies where the defendant and PINOP do not have a domestic relationship. i.e. neighbours.

What the Police Must Prove in Court

To be found guilty of breaching an AVO charge, the police/prosecution is required to prove each of the two elements outlined in the table below, beyond reasonable doubt.

What the Prosecution Must Prove in Court
  1. You breached an AVO condition; and
  2. You knew that you were breaching the AVO at the time.

This means, if the prosecution fails to prove beyond reasonable doubt, any one of the above two elements of the AVO breach charge, the court will return a verdict of ‘not guilty’. This means, the breach of AVO charge will be dismissed in court, putting an end the case.

In some cases, you can also seek for legal costs to be awarded in your favour.

Defences to a Breach AVO Charge

The below table outlined some of the main defences to an AVO breach charge under the law.

If anyone or more of these defences to a breach of AVO apply, the charge will either be dismissed in court, or dropped early through negotiating with the police, saving legal fees and stresses of having to attend court.

Defences to a Breach of AVO Charge
  1. Absence of Knowledge Defence: Applies if the defendant was genuinely unaware that he/she was breaching an AVO condition at the time.
  2. Self-defence: Applies if the defendant breached an AVO condition due to acting in self-defence to protect either him/herself, his/her property or to protect someone else.
  3. Defence of not being served with the AVO Papers: Applies if the defendant was not served with a copy of the AVO notice papers containing the avo conditions. This equally applies if the AVO was made in court in the absence of the defendant.
  4. Mediation Defence: Applies if the defendant breached an avo condition while complying with a court referred mediation session to resolve the avo dispute.
  5. Property Recovery Order Defence: Applies if the defendant breached an AVO condition while complying with a court orders property recover order for the defendant to attend the property to retrieve his/her items.

What AVO Conditions Can be Breached?

Failing to comply with any AVO condition outlined on the AVO notice will constitute a breach of AVO.

The types of AVO conditions that can be enforced against a defendant to protect the PONOP comprise of the ‘mandatory conditions’ and ‘additional conditions’.

The ‘mandatory conditions will always be included in every AVO. Whereas, the ‘additional conditions’ are optional, and if included, must be complied with by the defendant.

The following table outlines these two types of AVO conditions.

Mandatory/Standard AVO Conditions Additional AVO Conditions
  • Not to assault or threaten the PINOP or anyone else within a ‘domestic relationship’ with the PINOP.
  • Not to stalk, harass or intimidate the PINOP or anyone else the PINOP has a domestic relationship with.
  • Not to intentionally or recklessly destroy or damage the PINOP’s property, or any such property in the PINOP’s possession, or any property of a person who has a domestic relationship with the PINOP.
  • Not to approach the PINOP
  • Not to access the premises or place the PINOP lives or works at or frequents.
  • Not to approach the PINOP or a specified premises within 12 hours of consuming illicit drugs or alcohol.
  • Not to find or try finding the PINOP.
  • Not to have a firearm or a prohibited weapon.
  • Not to interfere, deliberately damage or destroy the PINOP’s property.
  • Not to conduct specified behaviour that may affect the PINOP.

How Do you Know if an AVO is Enforceable or Not?

A defendant in an AVO is required to comply with the AVO conditions only if the AVO is either a provisional AVO, interim AVO or final AVO. These types of AVOs are enforceable.

An ‘application for an AVO’ notice is NOT enforceable, which means a defendant is not required to comply with the AVO conditions in it.

Victim or Protected Person Breaching AVO

A victim or protected person (‘PINOP’) cannot technically be in breach of an AVO. The AVO is there to impose conditions on the defendant named in it, not on the PINOP named in it.

If the PINOP fails to comply with the AVO conditions, it will not result in an AVO breach against the PINOP. If the defendant fails to comply with the AVO conditions, the defendant will be charged with an AVO breach offence.

However, if the PINOP for example approaches or contacts the defendant in the AVO which otherwise prohibits the defendant from doing the same to the PINOP, then this can be used in favour of the defendant in the AVO hearing in court.

In addition, the PINOP approaching or contacting the defendant can set the defendant up to the temptation to respond, which can result in the defendant getting into more trouble, including, a breach of the avo.

Click here for an outline on what happens if the ‘protected person’ in the AVO fails to attend court.

AVO Application Form NSW

An AVO usually starts by submitting an AVO application form in NSW. The form once completed can then be lodged at the local court registry or police station. Police can also submit the avo application form on behalf of the ‘protected person’ (PINOP).

After lodging the avo application form, it will either be:

  1. Rejected; or
  2. Turned into an ‘application for an AVO’; or
  3. Turned into a Provisional AVO, which can then later be turned into an interim or final avo for a certain period of time specified by a court (unless it is struck out or revoked by the court or withdrawn by the applicant).

Click here for a guide on how to get an AVO or grounds for an avo.

For a sample of an AVO application form in NSW click any one of the following:

FAQ

How do I withdraw my AVO NSW?

The ‘protected person’ or defendant in an avo can apply to have an avo revoked or withdrawn. This can be done by lodging an application to revoke the avo with the court. An avo breach charge can also be withdrawn or dismissed if the protected person fails to attend the hearing or writes to the police.

A ‘protected person’ who wishes for the avo to be withdrawn should seek independent legal advice and possible legal representation in court, especially if the police are not listening. Get in touch with our team for a free initial consultation.

What happens if I breach an AVO in New South Wales?

Breaching an avo in NSW is a crime which attracts up to two-years imprisonment or $5,500 fine, or both, under s14 Crimes (Domestic and Personal Violence) Act 2007 (NSW). These are the maximum penalties, which are rarely ever applied by courts. Other possible penalties include non-conviction section 10, Conditional Release Order non-conviction or Community Correction Order.

What happens when you breach a DVO?

The penalties for breaching a DVO is up to $5,500 fine or 2 years jail, or both, but because it’s a domestic violence order breach, the Judge will be required to impose either a full-time jail sentence or any other sentence with a supervision order (including a conditional release order without conviction under section 10).

Will I have to go to court for a breach of an AVO?

You must appear in court for a breach of an AVO allegation if the police charge you for an avo breach offence. If you get charged for this, you will be served by police with a Court Attendance Notice summons’ outlining the court, the date of court, and details of the AVO breach charge.

Can you go to jail for breaching an AVO?

The court must sentence you to a term of imprisonment if your conduct of breaching an AVO involved an act of violence against a person. But the court can also decide not to impose a prison sentence at its discretion, although it will be required to state reasons for taking this course.

What about accidental breaches of an AVO?

Accidental breaches of an AVO is a defence to an AVO breach offence, if you weren’t aware that you were breaching the avo at the time. It’s only a crime to intentionally breach an AVO.

What if I didn’t know about the AVO?

It is a defence to an avo breach charge if you did not know about the AVO, either because you weren’t served with the avo paper(s) and you weren’t in court when the avo was made.

Can the protected person consent to you breaching the AVO?

The protected person (PINOP) in the avo is not able to consent the defendant breaching any of the conditions in it. While the protected person is not restricted by the avo, the defendant is only if the avo is either a provisional, interim or final avo.

Which court will hear your matter?

An AVO breach charge is usually listed before the Magistrate or Judge sitting in the Local Court. The NSW local courts across the state regularly deal with avo breach matters.

How long is an AVO for?

An avo can last for as long as the court considers is necessary to ensure the protection and safety of the ‘protected person’. Practically, an AVO will usually last for between 1 to 2 years in respect to final avo’s. Provisional avo’s last for up to 28-days until a court converts it into an interim avo. An interim avo will continue until the case is finalised in court.

Does an AVO breach go on your record?

An AVO breach does go on your record because it’s considered a crime under the law if you are found guilty and convicted by the court. If it’s a breach of a ADVO (as opposed to a APVO) it can be used against you later in life:

  • By police when considering whether or not to take out an avo against you again.
  • By the court to take the previous domestic violence offence into account when determining whether you’re guilty of intimidating or stalking in the future (if ever charged).
  • By the court when determining bail if you’re ever in that position in the future.
  • By the court, which can impose a heavier sentence for any future assault offence you end up ever being sentenced for.

Can you travel overseas with a breach AVO conviction?

You may be more restricted in traveling overseas with an avo breach conviction than someone who has not previous convictions on their record. However, generally, it shouldn’t prevent overseas travel, albeit every country will have their own discretion.

Can I appeal an AVO breach conviction?

You have within 28-days to lodge an appeal from the day the local court Magistrate convicts you for an avo breach. During this time frame, you have a right to appeal either the sentence or the finding of ‘guilty’ (conviction) of the avo breach charge by the Magistrate.

After lodging the appeal, the appeal will be ultimately then decided afresh in the District Court by a Judge.

What happens in an AVO Breach hearing?

The Local Court Magistrate will hear evidence from both sides before determining whether the defendant (accused) person is ‘guilty’ or ‘not guilty’ of the AVO breach charge.

For the court to find the accused person guilty, the police must produce enough admissible evidence to convince the Magistrate beyond reasonable doubt, that the accused committing the breach of AVO offence.

Each witness will give their evidence in the witness box, which involves the witnesses being cross examined where their evidence will be tested in-front of the Magistrate in a fair way. A good criminal defence lawyer will be able to fairly point out any inconsistencies and holes in the police evidence during this process.

Each side will then close their cases before submitting to the Magistrate with their closing submissions, for the Magistrate to then deliberate a verdict.

If the Magistrate finds the accused ‘not guilty’, the avo breach charge will be dismissed. If the Magistrate finds the accused ‘guilty’, the accused will be sentenced with a penalty. The penalty imposed will be determined after the Magistrate gives the opportunity for the accused or his/her lawyer to produce further evidence.

Can you get costs awarded in AVO breach cases?

Under section 213 of the Criminal Procedure Act, the Magistrate can order that the prosecutor pay the accused/defendant’s legal costs, at the end of the local court proceedings if the breach of avo charge ends up being dismissed or withdrawn. The extent of legal costs the court can order the police to pay must be reasonable and just.

Costs can only be awarded in limited circumstances outlined in section 214 Criminal Procedure Act. Click here for an outline on how to get costs in avo cases in NSW.

Property recovery orders

It is a defence to a breach of avo charge in NSW if a defendant in an avo breaches the avo solely due to the fact that he/she was complying with a property recover order granted by the court. Click here for an outline on property recover orders in avo proceedings in NSW.

Do I need a lawyer for an AVO breach charge?

AVO laws are complex, and requires a considerable amount of navigating around the legal procedures and court process. It’s just as important to also have a working practical knowledge of breach of AVO cases in court. It’s highly recommended to talk to an AVO criminal lawyer before speaking to police, during and after being charged.

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