By Jimmy Singh & Tayla Regan
Apprehended Violence Orders exist for the purposes of protecting the ‘the person in need of protection’ (PINOP), or Applicant.
Applying for an AVO on your own isn’t rocket science. Anybody with sufficient grounds can do it.
Our AVO lawyers Sydney team specialise in complex avo cases, including avo cross-claims. Get in touch with our Sydney city office to arrange a free consult today.
AVO’s can have far reaching consequences against an individual. While some AVO’s are based on legitimate grounds, it’s even more concerning where some AVO’s are taken out as a strategic move against a partner to influence Family Court proceedings concerning child custody disputes.
What is an AVO Order?
An AVO, whether it’s an apprehended domestic violence order (‘ADVO’) or an apprehended personal violence order (‘APVO’), it involves certain orders restricting or prohibiting the defendant for the protection of the PINOP or Applicant to the AVO.
Those orders are broken down into two main categories, mandatory order and additional orders.
The mandatory orders include the kind of things you are not allowed to do anyway:
Not to assault, molest, threaten, harass, or interfere with the PINOP or anyone who he/she has a ‘domestic relationship’ with.
Not to engage in conduct that intimidates or stalks the PINOP or anyone else he/she has a ‘domestic relationship’ with.
Additional order can include:
Not to contact, approach, or go within a certain distance (i.e. 100m) from where the PINOP works or lives.
Not to approach or contact the PINOP within 24 hours of drinking alcohol.
For an interesting read on getting your legal costs back in AVO cases, see our article on how to get costs in AVO cases.
Types of AVO’s
An AVO can be either an apprehended domestic violence order (ADVO) or an apprehended personal violence order (APVO).
An AVO can either be a private AVO- where police are not involved, often a step the applicant can take by simply filing an AVO with the Court Registry. Or an AVO can be related to a criminal charge- where police are involved and will act on behalf of the PINOP for the AVO and the criminal charge(s).
Police are more often involved to act for the PINOP in ADVO’s concerning domestic violence.
The main difference between the two types of AVO’s is, the ADVO involves a situation where the PINOP has or had a ‘domestic relationship’ with the defendant.
A ‘domestic relationship’ includes a marriage, de facto relationship, intimate relationship, living in the same home, relatives, which includes children of the PINOP. If there is no domestic relationship between the defendant and PINOP, then the AVO will usually be treated as an APVO.
Will an AVO Affect Your Rights in a Child Custody Dispute?
An AVO does impact family court proceedings involving issues about the custody of children.
The Family Law Act 1975 requires a party to a parenting proceeding to advise the court of an AVO involving a child or family member of the child. The Family Court will then be allowed to take the AVO into consideration.
Where the AVO involves the child as the PINOP who is alleged to have been a victim of domestic violence, then it is likely the Family Court will wish to provide higher protection for the child against the defendant of the AVO.
Where the AVO involves an adult as the PINOP who is alleged to be a victim of a personal violence offence, the Family Court is likely to impose less protective parenting orders against the defendant where the child was not exposed or within view of the personal violence offence alleged.
In the event an AVO is consented to, on the basis the defendant does not admit to the allegations expressed in the AVO grounds, the Family Court is likely to impose even less protective parenting orders against the defendant concerning access to children (supervised or unsupervised).
However, the fact an AVO is in existence, even if by consent on a without admission basis, an AVO will still likely have an impact in parenting/child custody proceedings in the Family Court.
The PINOP or Applicant is likely to use the existence of an AVO to later suggest (in the Family Court) that the defendant is a violent person and an unsuitable parent.
It’s for this reason, family lawyers will often advise their clients to oppose AVO proceedings (not consent to an AVO).
AVO’s can be based on legitimate grounds for the protection of the PINOP or applicant and any related children. However, the Family Courts are experienced enough to also recognise that some AVO’s are used as tactful attempts to influence the Family Court to impose more favourable parenting order for one parent over the other.
As a result, Family Court Judges may give less weight to certain AVO’s in child custody disputes- especially where an AVO is consented to by the defendant where the facts of it were not admitted to in the Local Court AVO proceedings.
What are the Consequences of an AVO?
Apart from the consequences of an AVO in Family Court proceedings concerning child custody disputes, an AVO against you can have other potentially disastrous consequences, including:
- An AVO can impact on you being allowed to work with children. Any job involving an exposure with dealing with children will mean that you will be subject to a working with children check. Where there is an AVO made against you by the court, or where you consent to an AVO (even if it’s on a without admission basis), this will show up on a working with children check. This may affect you getting the job.
Examples of jobs involving exposure to children include, child care work, school teachers and bus drivers.
- An AVO will preclude you from getting or maintaining a firearms or weapons permit. In the case of an interim AVO- your firearms or weapons permit will be automatically suspended until the AVO is finalised.
In the case of a final AVO- your firearms or weapons permit will be revoked. You will then be required to surrender the firearm or weapon to police.
- An AVO can also affect your tenancy agreement if the final AVO order stops you (as the tenant) from accessing the property (under the tenancy agreement).
Can You Get an AVO Dropped or Dismissed?
An AVO can be dismissed in Court in a number of ways.
- The Court will refuse to grant an AVO if the PINOP or applicant is unable to convince the Court that it is more likely than not that the defendant did the things complained of in the grounds of the AVO. This is where it’s critical to engage a very competent AVO lawyer who has mastered the art of cross examination.
- The court will also refuse to grant an AVO, if the Court is not satisfied, that on the balance of probabilities, the PINOP or Applicant:
- Has reasonable grounds to fear and actually fears that the defendant will commit a personal violence offence or engage in intimidating or stalking behaviour;
- being such conduct that the court believes is enough to make an AVO order.
Where an interim AVO has been on foot for a long period of time, with orders protecting the PINOP or Applicant- the court will more likely dismiss the AVO where there have been no breaches of the interim AVO orders, and where the PINOP or applicant has no reasonable basis to hold continued fears.
- Some allegations in AVO applications may be baseless allegations of behaviour that do not actually amount to a personal violence offence, intimidation or stalking behaviour.
- The Court will likely dismiss the AVO- If the PINOP or Applicant in an ADVO case (not involving a child as a PINOP) tells the Court that he/she holds no fears from the defendant.
- The court can also dismiss the AVO case where the PINOP fails to appear on the hearing date of the AVO.
- Negotiation the AVO: it is strongly advised to engage a competent lawyer to engage in negotiations. You can attempt to negotiate the AVO, to do any one of the following:
- To withdraw the AVO on condition of the defendant providing an undertaking expressing the orders sought by the PINOP or Applicant in the AVO. This undertaking can then be used against you in any later AVO allegations (if the later AVO case goes to hearing in court). This is the ideal outcome because it will result in the AVO being dismissed.
- Another option in negotiating, albeit a less attractive one for some, is to consent to the AVO on your terms without any admission to the allegations for an agreed period of time. This option is preferred where the evidence against the defendant is very strong.
Where the PINOP is a child in an ADVO, or where the PINOP is a child in an APVO, the court only looks at where it is satisfied (on the balance of probabilities) whether the PINOP has reasonable grounds to fear a personal violence offence, intimidation or stalking behaviour by the defendant. Here, the court doesn’t consider whether the PINOP actually holds fears. This is reflected in section 16(2) and 19(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Is an AVO a Criminal Record?
An AVO is not a criminal record. It will not show up on a background check.
AVO’s are civil proceedings and can only become a criminal offence if an AVO order is breached.
Click here for a complete guide on AVO laws.