It isn’t easy convincing the Court to get the other side to pay your legal costs, but it is achievable, and has been achieved in court many times. Below is a general guide on how to fight an AVO, and how to get costs from police.
There are generally 2 types of AVO’s – ‘Apprehended Domestic Violence Order’ and ‘Apprehended personal Violence Order’. An AVO is often filed and served against you by the police, who act on behalf of the person who made the complaint, known as the complainant or ‘Person in Need of Protection’ (PINOP).
What is the difference between the two kinds of AVO’s?
An Apprehended Personal Violence Order attempts to protect someone you don’t have a domestic relationship with. This includes your neighbour. An Apprehended Domestic Violence Order attempts to protect someone you have a domestic relationship with i.e. your partner or housemate.
Is an AVO a criminal charge?
AVO’s are civil proceedings in the Local Court. They, by themselves, are not a criminal charge. They can restrict you in aspects of life. For example, an AVO can prevent you from getting a firearms licence. It can also effect family law proceedings where children are involved.
An AVO can become a criminal charge if it’s conditions are breached either during a provisional AVO or during the period of a final AVO.
How to get police to pay your legal costs
Costs in AVO cases are more difficult to get than in other civil or commercial law cases. That said, they are not impossible to get if you are familiar with the law on AVO’s.
The law governing costs in AVO cases is section 99 Crimes (Domestic and Personal Violence) Act 2007 (NSW). It allows the court to order the police prosecutor to pay your legal costs in certain circumstances in AVO cases. Those circumstances include the following, where:
- The AVO application lacks seriousness and/or is without sufficient grounds, or serves only to cause annoyance.
- The AVO application contains matters that the police officer knew were false or misleading.
- The law allows for costs to be ordered against the police where one or more of the following circumstances exist under section 214 of Criminal Procedure Act:
- The Investigation of the allegations in the AVO was unreasonable and improper in the manner conducted by police
- The AVO proceedings started without reasonable cause or in bad faith, or it was conducted by the prosecutor in an improper manner
- The police prosecutor unreasonably failed to investigate a relevant matter which if aware, or aught reasonable to have been aware, and which suggested you might not be guilty
- Due to other exceptional circumstances relating to the conduct of the proceedings by the police, it is just and reasonable to award costs.
The case of Constable Redman v Willcocks  is a decision of the Supreme Court which considered the issue of legal costs. It held that because the person who made the complaint told the police officer she no longer held fears from 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 did not confirm 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 failed to undertake the necessary paperwork which was sufficient ground for the court to order costs pursuant to section 214(1)(d) Criminal Procedure Act against the police.
In that case, the costs order was made only in respect of the procedural failures by the police which caused the defendant to incur the costs of his lawyer’s appearance on the AVO hearing day.
What is an AVO?
An AVO is an attempt by either the complainant, or the police who act on behalf of the complainant, to obtain an order restricting your communication or contact with the complainant for a certain period of time.
An AVO process usually starts when it’s served to you. It’s usually served by police if police act on behalf of the complainant. It usually starts of as an ‘application for an AVO’ or a ‘provisional AVO’ containing a court date that you are required to attend. As to procedures of an AVO and your options in court after being served with one, see Your options in court for AVO.
Some of the common conditions of an AVO include the following:
- Standard orders: Prohibiting you from molesting, harassing, stalking or intimidate the person or a person whom he or she has a domestic relationship with, these are known as orders 1(a)(b)(c) of the AVO.
- The AVO can have additional orders for the protection of the complainant. For example, “the defendant must not approach or contact the complainant within 12 hours of consuming alcohol”; “the defendant must no approach within 5 km of where the PINOP resides or works”.
Negotiating an AVO
You always have the option to negotiate the AVO for it to be either completely dropped, or its conditions changed on a mutual agreement. Sometimes an AVO application can be dropped on conditions of giving an undertaking that you will comply with certain agreed conditions. Those conditions could reflect the conditions in the AVO. The benefit of this is not having an AVO against your name.
What the Court looks at when considering to grant an AVO
For an AVO to be final, the court must apply a test. This test is stated in section 19 Crimes (Domestic and Personal) Violence Act 2007 (NSW), and begs 2 main questions:
- On the balance of probabilities, is the complainant fearful that you will commit a personal violence offence i.e. stalk, intimidate? And
- On balance of probabilities, is there reasonable grounds for the complainant to hold those fears?
The first test can be easily satisfied by the complainant by simply telling the Magistrate that he or she fears you will commit a person violence offence.
The second test is more difficult, and is an objective test. Here, the court will consider whether the complainant has reasonable grounds to fear you will commit a personal violence offence. What is or isn’t reasonable will ultimately be decided by the Magistrate in court. The police can fail to satisfy this test in several ways. For example, the police will likely fail this test where the complainant’s credibility is very low, leading the Magistrate to not believe the version given by the complainant. Even if the Magistrate believes certain parts of what the complainant says against you, the alleged conduct may not amount to something that even requires an AVO.
Once the Court has considered the above two questions, it must then consider whether it thinks the conduct alleged in the AVO (if proven on balance of probabilities) is sufficient to make the orders the police are seeking in the AVO? If, yes, it will make a final order against you, otherwise, it will not. Proving you attended the complainant’s workplace on one occasion would generally not be sufficient to make an AVO. Unless it occurs numerous times, it would not necessarily be considered stalking.
It’s worth knowing that the police have the responsibility to prove, in court, on the balance of probabilities, what the complainant is alleging you did. Although you can produce evidence to contradict the allegations, you don’t have a responsibility to prove your innocence. If police fail to prove the allegations to the requisite standard of proof, they will likely fail in getting a final AVO against you.