Dr. Weatherburn, director of the NSW Bureau of Crime Statistics said that “there is no question that apprehended violence orders are effective but they are not a miracle cure”.
How effective are AVOs when it involves children, family court proceedings, and changes in life circumstances after it was made?
What happens if the police have been granted a final AVO against you in court, and your partner or (ex-partner) is referred to as the person in need of protection (PINOP) in the AVO?
What if the conditions of an AVO order:
- Prohibit you from contacting, approaching or living in the same premises as your partner.
- Prohibit you from going within 200 meters of the premises at which your partner lives or works?
Your partner may not have even wanted those orders in place, but the police applied for it anyway.
These AVO orders may cause significant problems later on if:
- You need to pick up or drop the kids off at your partners home to work with the children changeover times.
- If your place of work is located in an area that happens to be within the 200 meters distance from where your partner lives or works.
- If your job requires you to travel to an area (or areas) located within the 200 meters distance of your partner’s home or work, or where the frequent path you need to take to get to work incidentally results, at some point, in you falling within the 200 meters distance.
As AVO lawyers we often advise people about these potential issues at the beginning of cases. They are important factors that attention needs to be drawn to when deciding on what to do when faced with an AVO by the police.
It’s important to understand that an AVO is not a criminal charge.
An AVO is considered a civil proceeding in court. It will therefore not show up in a criminal background check against your name. However, a breach of an AVO order will become a criminal offence.
An AVO can have consequences concerning you ever working with children, tenancy agreements, child custody disputes in the family court, security licences, and firearms licences. For more information on this, see this article on what are the consequences of an AVO.
Understandably, life circumstances change from time to time. Some of those changes will interfere in your ability to meet your work and family commitments- and ability to continue complying with AVO orders at the same time.
What is an AVO?
To recap from our previous blog on AVO’s, an apprehended violence order (‘AVO’) is an order the court imposes on a defendant, prohibiting or restricting certain conduct.
It’s aimed at protecting the person in need of protection (‘PINOP’) referred to in the AVO.
Conditions include, not to harass, intimidate, assault, stalk or destroy or damage the PINOP’s property, or anyone the PINOP has a domestic relationship with. There can be additional orders imposed.
A domestic relationship includes:
- Someone the PINOP was or is married to;
- Someone the PINOP was or is in a De facto relationship with;
- Someone the PINOP has or had an intimate relationship with;
- Someone the PINOP was or is living in the same home with;
- A relative of the PINOP. A child of the PINOP is also included in the meaning of domestic relationship.
What is the Difference Between an Apprehended Personal Violence Order and an Apprehended Domestic Violence Order?
An apprehended domestic violence order is slightly different, but similar to an apprehended personal violence order.
The difference between the two is essentially the nature of the relationship between the defendant and the PINOP listed in the AVO. An apprehended domestic violence order is where the PINOP has or had a domestic relationship with the defendant. Whereas, an apprehended personal violence order is where there is no such domestic relationship.
How do I Get an AVO on Someone?
Generally, a court will only agree to making a final AVO if:
- The person in need of protection holds reasonable grounds to fear, and actually fears that the defendant will engage in a domestic violence offence, or that the defendant will intimidate or stalk the PINOP; and
- After considering the safety and protection of the PINOP and any child. The court can only impose AVO orders that are necessary for the safety & protection of the PINOP and any child.
Before it gets to court, an AVO can be sought by simply going to a police station and making a complaint- the police may then decide to take out a provisional AVO on behalf of the alleged victim. Alternatively, a provisional AVO can be taken out by simply attending and applying for one at a Local Court Registry.
Who Else Gets Protected in an AVO?
If the Court makes an apprehended domestic violence order against the defendant, where the PINOP is an adult, the Court must also include a child or children of the PINOP into the AVO- this means the children will also then be protected with the same conditions of the AVO orders that the defendant is required to comply with. This is expressed in section 38(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Generally, the court who makes an AVO, whether it’s a personal or domestic apprehended violence order, has the power to extend the order to include anyone the PINOP has a ‘domestic relationship’ with.
In some circumstances you can ask the court not to include a child as a PINOP in the AVO order.
Section 38(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) allows the court to not include the child as a protected person if there are ‘good reasons’.
‘good reasons’ can include circumstances where:
- There’s no allegation of direct physical violence towards the child;
- There’s no allegations of physical violence in the presence of the child;
- There’s no threats of violence towards the child;
- The conduct grounding the AVO application consists of only words;
- There’s no allegation that the child was even present during the conduct complained of
What are the Benefits of NOT Having a Child Included in the AVO?
If a child is not included in the AVO as a PINOP, then this can have the following benefits to the defendant:
- The defendant won’t be as restricted with communicating and contacting the child.
- The defendant will more likely get a better outcome in any Family Court proceedings concerning child custody disputes.
- The defendant will not face the extended difficulties in later trying to change or revoke the AVO.
How to Get an AVO Revoked or Varied
Revoking or changing the orders of an AVO that is already on foot isn’t a straight forward procedure.
However, it is easier to revoke or vary an AVO where a child isn’t listed in the AVO as a protected person/PINOP.
How to Vary or Revoke an AVO Where a Child is a Protected Person
Where a child is included in the AVO as a protected person, the defendant must seek the court’s leave to make an application to ask for the existing AVO to be changed or revoked. However, pursuant to s72B of the Crimes (Domestic & Personal Violence) Act 2007 (NSW), you can only get that leave from the Court if:
- Notice of the application to vary or revoke the AVO has been given to the Police; AND
- There is not a significant increase in the risk of harm to the child (in the event the AVO is changed or revoked); AND either of the following
- There is a significant change in circumstances since the order was made or last varied; or
- It is otherwise in the interest of justice to grant the leave; or
- DOCS make the application on the basis that a care plan for the child is inconsistent with the police initiated AVO order.
Where the application is only to vary or change the AVO, then in considering the variation of sought, the court considers the safety and protection of the Protected Person and child.
How to Vary or Revoke an AVO where a Child is Not a Protected Person
Where the AVO doesn’t include a child as a protected person, instead, the protected person (PINOP) is an adult, the police, PINOP or defendant can apply to the court to vary or revoke the AVO.
However, where the person applying to revoke or vary the AVO is not the police, then notice of the application must be given to the police where the AVO is a police-initiated order.
You can vary or revoke an AVO if the Court finds it proper to do so in the circumstances, only where you can show:
- A change in circumstances; and
- Where notice has been served on each protected person
This is reflected in s73 of the Crimes (Domestic & Personal Violence) Act 2007 (NSW).
The test to vary or revoke an existing AVO, whether it is interim, or final is easier to do where the AVO doesn’t include a child as a protected person/PINOP.
What Happens if Someone Makes a False or Misleading AVO Application?
Section 49A of the Crimes (Domestic & Personal Violence Act 2007 (NSW) says, that you will face a criminal conviction, maximum term of imprisonment for 12 months and/or a $1,100 fine if you:
- Knowingly make a false or misleading (in a material particular) statement (orally or in writing), where the statement is made to a Registrar or Magistrate to make an application for an AVO.
For further information, click here on frequently asked questions surrounding domestic violence & AVO’s.
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