Experiencing the burden of an Apprehended Violence Order (AVO) can have a profound impact on various aspects of your life. It may disrupt your ability to maintain contact with loved ones, limit career opportunities, and affect eligibility for certain licenses - all this, despite an Order not being classified as a criminal conviction by law. The responsibility of proving the necessity of an AVO lies with the applicant, whether it is the police or the complainant themselves. They must establish, based on the balance of probabilities (the civil standard), that the imposition of an AVO is warranted based upon a somewhat complex assessment of the existence of fear that exists based upon the behaviour of the defendant the subject of the application. If someone is seeking to make an AVO against you, it is highly recommended that you seek the assistance of specialised defence lawyers with a wealth of experience in effectively defending AVO applications. The defence team at KPT Defence Lawyers boasts decades of experience in consistently opposing and defeating AVO applications. Whether these applications are initiated by the police on behalf of a 'protected person' (referred to as 'police AVOs') or by an individual privately seeking personal protection, the team has expertise in dealing with both types. This expertise also extends to apprehended domestic violence orders involving parties with a domestic relationship and apprehended personal violence orders where no domestic relationship exists. We offer a complimentary initial consultation for those facing court proceedings concerning an AVO. Our exceptional team utilises specialised experience and strategic techniques honed over many years to enhance your chances of success in the case, allowing you to put this ordeal behind you and move forward with your life.
An Apprehended Violence Order (AVO) is a legal directive designed to protect a ‘protected person’ from various forms of harm; including violence, harassment, intimidation, stalking, property damage, or other specified behaviors.
AVOs can be obtained in two ways:
1. Police AVOs: Law enforcement can issue AVOs if they are concerned about the safety or welfare of a protected person, even if the individual does not request the order.
2. Private AVOs: A person who believes they need protection can apply for an AVO on their own behalf.
AVOs are categorised into two broad types:
1. Apprehended Domestic Violence Order (ADVO): This type of order is issued when there is an existing domestic or family relationship between the protected person and the subject.
Examples include relationships between spouses, de-facto partners, intimate partners, parent and child, caregiver and patient, relatives, house-mates, or individuals within the same Indigenous kinship system.
2. Apprehended Personal Violence Order (APVO): This type of order is issued when there is no domestic or family relationship between the involved parties. It applies, for instance, to situations where the protected person is a neighbor, work colleague, friend, or acquaintance.
While an AVO does not result in a criminal record, its effects on both your personal and professional life can be significant.
An active AVO will be visible on background checks conducted by many employers, potentially affecting your prospects for certain jobs that involve working with children or require firearm possession.
Moreover, an AVO can have adverse consequences on your family and personal relationships. It might prevent you from living with the person who initiated the AVO, leading to difficulties in maintaining connections with your children and extended family.
Even if you are allowed to continue living or associating with the person who sought the AVO, the strain on your family relationships can be immense due to the constant worry about potential breaches of the AVO conditions.
Given these serious implications, seeking assistance from a highly experienced criminal lawyer is strongly recommended. Such a lawyer can provide guidance on the best approach to defending against the AVO.
Our team of lawyers possesses extensive experience in handling AVO cases and regularly represents clients in court regarding these matters.
Throughout the entire process, we will stand by your side, ensuring you comprehend the AVO conditions and, if necessary, advocating for modifications in court.
Typically, before an application for an AVO reaches a ‘defended hearing,’ there are several court dates required. At these appearances the parties will be directed to accomplish certain tasks to ensure the contested final hearing is able to be run.
During the first court date, known as a ‘mention,’ the magistrate will inquire whether you consent to the AVO or intend to contest it. If you contest the application, during the final hearing, the magistrate will hear evidence and decide whether to grant the application.
Before you get to this point, it is essential to carefully consider whether you want to simply consent to the AVO, and save yourself considerable time, stress and money. If you do consent to the order(s), the person seeking the AVO will be the one who has specified the conditions they wish to impose upon you.
Keep in mind the importance of adhering to the AVO conditions, as failure to do so may result in a criminal charge occuring for breach of the orders, and cause you further negative legal consequences, including fines, bonds and even in more serious cases, a prison sentence. If you disagree with any of the conditions, inform the court accordingly. Once the AVO is ordered, it becomes effective immediately and enforceable against you.
You may consent without admissions necessary to ensure compliance with this.
During the final hearing, the magistrate will review the statements and allow each party to present evidence and cross-examine each other’s witnesses, which includes the person the subject of the order (the ‘person in need of protection’ or PINOP), and the defendant who is resisting the making of the order restraining them.
Although self-representation is allowed, professional representation is advised in most cases. The main reason is that the most important ability to test and disprove an allegation in a court hearing is by the performance of cross-examination of an opponent’s witness on his or her evidence in their statement.
Cross examination is generally considered the most difficult of lawyering skills to obtain. It requires a great deal of experience practicing on one’s feet in court, and is not known to be picked up quickly as a skill-set.
It is a highly technical exercise in logic, clarity and the mental and oral ordering of facts and thought. It is also a performance art with its own rules and the breaking of these when required. It is something that is acquired really only after considerable experience in its performance.
It is very difficult to teach, hard to learn and can, from the wrong person, harm a case more than simply remaining seated and silent at the bar table. It is a professional activity performed well with difficulty by many trained lawyers, and it is always going to be a serious challenge to perform competently for the uninitiated and inexperienced in its performance. It is for this reason alone advisable to seek a lawyer with a proven track record in defending AVOs.
Once the magistrate has heard each side’s cross examination, and closing oral arguments, and then having considered all the evidence, will give their reasons to grant the AVO or dismiss the application.
Even if one party does not attend the AVO hearing, the court may still proceed with the matter and determine the necessity for the making of the order in their absence.
If you disagree with the magistrate’s decision, you have the option to appeal the matter to the District Court.
In most cases, the applicant (or ‘protected person’) must establish some key points about fear on the balance of probabilities (as in, to a standard of more than 50%) to finalise an AVO:
If the applicant fails to prove essential criteria on the balance of probabilities, the court will not grant an AVO. Some approaches to consider may include:
It must be understood that for AVO applications made by police, also referred to as ‘police AVOs,’ the decision to withdraw the application rests solely with the police or a police prosecutor in court, not with the protected person.
This applies to both apprehended domestic violence orders (ADVOs) and apprehended personal violence orders (APVOs).
The reason behind this is that the police officer who applied for the AVO, known as the ‘informant,’ is technically responsible for initiating the case.
While the protected person cannot directly ‘drop’ a police AVO, they have the option to formally request that the police withdraw the application.
To support this request, the protected person may provide a letter explaining the reasons for seeking the withdrawal.
The final decision to withdraw or proceed with the AVO application brought by police lies with the police.
On the other hand, in the case of personally initiated AVOs, the applicant (or their lawyer) can withdraw the AVO application on any court date.
In such instances, it is the applicant (not the police) who initiates the proceedings, hence it is up to them to withdraw it or proceed with it to a hearing.
If the personal applicant withdraws the AVO, the defendant can apply in court for the applicant to cover their legal costs up until the date of the withdrawal.
A Private Apprehended Violence Order (‘Private AVO’) is a court order sought by an individual to protect themselves from potential violence, harassment, or intimidation by another person. It is called ‘private’ because it is initiated by the individual seeking protection rather than being initiated by the police.
To seek a private AVO, you will generally need to do the following:
1. Consult with a lawyer: It is advisable to consult with one of our experienced criminal defense lawyers. We can guide you through the process and ensure you meet the specific requirements to make such an application.
2. Gather evidence: You will need to provide evidence of the alleged violence, harassment or intimidation. This evidence may include text messages, emails, photos, witnesses or any other relevant documentation.
3. File an application: As your lawyer we can help you prepare and file an application for a private AVO with the appropriate court. The application will outline the reasons why you need protection and present the evidence you gathered.
4. Court Hearing: Once the application is filed, the court will set a hearing date. During the hearing, you will have the opportunity to present your case and the evidence to support your application. The person you are seeking protection from (the respondent) will also have a chance to respond to the allegations.
5. Court decision: After considering the evidence and argument from both parties, the court will decide whether to grant the private AVO. If the AVO is granted, the terms and conditions of the order will be specified, and the respondent will be legally required to comply with them.
If you are facing a situation in which you require private AVO, please do not hesitate to reach out to our office for assistance.
If you find yourself accused of breaching your AVO, which constitutes an offence under section 14 Crimes (Domestic and Personal Violence) Act 2007, you face a maximum penalty of 2 years in prison and/or a fine of $5,500, unless you can successfully have the charges withdrawn or dismissed in court.
This highlights the importance of seeking assistance from criminal defence lawyers who possess extensive experience and specialist accreditation in representing clients facing allegations of contravening AVOs and have a remarkable track record of successful outcomes. Most practitioners in criminal defence are not accredited specialists, many firms have no accredited specialists.
We do. We have nearly three decades of combined professional criminal defence law experience, ten as an accredited specialist.
The defence team at KPT Defence Lawyers has extensive specialised experience in defending both AVO and contravene AVO cases.
If you are going to court, do not hesitate to contact us at any time on (02) 9267 5555, and allow our team to vigorously protect your reputation and secure your future.
What are the Consequences?
If you violate your AVO, your case will be handled by the Local Court.
In New South Wales, the maximum penalty for contravening an AVO is 2 years of imprisonment and/or a fine of 50 penalty units, equivalent to $5,500.
If you plead guilty or are found guilty of the charges, the magistrate can impose one of the following penalties:
1. Section 10(1)(a) Dismissal: No conviction is recorded, and you are not penalised further.
2. Conditional Release Order (CRO) (with or without conviction): You must adhere to certain conditions set by the court.
3. Fine: A monetary penalty is imposed.
4. Community Correction Order (CCO): You must engage in community service and comply with specified conditions.
5. Intensive Correction Order (ICO): A prison sentence, but served in the community with strict supervision.
6. Full time imprisonment: The most severe penalty, involving confinement for a period usually of 6-months or more in a NSW Correctional Centre. The sentence is divided between the larger non-parole period in custody, and the parole period at strict liberty in the community under supervision.
Ultimately, the type of penalty you receive will depend on the specific circumstances of your case and the nature of the breach.
Our team of specialist criminal lawyers regularly represents clients in ‘contravene AVO’ cases, advocating vigorously for our clients’ rights by presenting compelling evidence to strengthen their defence.
In numerous instances, we have helped individuals avoid lengthy prison sentences or more often full-time custody at all by persuading the magistrate to treat ‘contravene AVO’ cases with leniency, despite the legal provision stating that those who breach an AVO using physical violence should be incarcerated.
Our consistent high achievements in AVO cases give you confidence that your freedom is in capable hands.
What is Required for the Prosecution?
For a conviction in a breach of AVO case, the prosecution needs to establish the following elements:
1. You breached a condition or restriction specified in the AVO.
2. The breach was committed knowingly, indicating that it was not accidental.
The maximum penalty for breaching an AVO is 2 years of imprisonment and/or a $5,500 fine. If you are facing charges of contravening an AVO, it is essential to consult with a lawyer experienced in handling such cases.
A competent lawyer will assess your situation and provide guidance on whether you have any valid defences that could explain or justify your actions. If you present a defence that is accepted, you will be found to have not breached the AVO.
What Defences Are Available?
There are several examples of defences that can be utilised in a breach of AVO case, including:
Lack of Awareness: If you were unaware or had no knowledge that you were contravening the AVO.
Non-Service or Absence in Court: When you were not served with an AVO or were not present in court when the AVO was issued.
Compliance with Orders: If you breached the AVO to attend mediation or comply with a property recovery order.
Self-Defence: When you breached the AVO to protect yourself, another person (e.g., your children), or your property due to genuine fear for safety.
Coercion or Threats: If you were coerced or threatened into breaching the AVO by the person who sought the AVO, also known as duress.
Necessity: When breaching the AVO was necessary to prevent serious injury or danger.
It is crucial to understand that an ADVO itself is not a criminal charge. However, if you breach the conditions specified in the ADVO, it becomes a criminal offence. A breach occurs when you violate any of the restrictions set out in the order, such as attempting to contact the protected person or going to their residence.
The maximum penalty for breaching an ADVO is a fine of $5,500 and/or imprisonment for up to 2 years. If the breach involves an act of violence and you are at least 18 years old, a custodial sentence may become the primary consideration.
It is important to note that breaching an ADVO is taken seriously by the courts, as it involves the violation of a protective order put in place to ensure the safety and well-being of the protected person. If you are facing charges for breaching an ADVO, seeking legal representation from experienced criminal defence lawyers is essential to protect your rights and explore the best defence strategies for your specific situation. Our team can help you navigate the legal process, challenge the charges, and work towards achieving the most favourable outcome in your case.
Experiencing the burden of an Apprehended Violence Order (AVO) can have a profound impact on various aspects of your life. It may disrupt your ability to maintain contact with loved ones, limit career opportunities, and affect eligibility for certain licenses, despite not being classified as a criminal conviction by law.
Nevertheless, it is crucial to understand that the responsibility of proving the necessity of an AVO lies with the applicant, whether it is the police or the complainant themselves. They must establish, based on the balance of probabilities (the civil standard), that an AVO is justified considering all circumstances.
Keeping this in mind, it becomes essential to seek the assistance of specialised defence lawyers with a wealth of experience in effectively countering AVO applications. These lawyers should possess a long and proven track record of successfully defeating such claims.
The defence team at KPT Defence Lawyers boasts decades of experience in consistently opposing and defeating AVO applications. Whether these applications are initiated by the police on behalf of a ‘protected person’ (referred to as ‘police AVOs’) or by an individual seeking personal protection, the team has expertise in dealing with both types. This expertise also extends to apprehended domestic violence orders involving parties with a domestic relationship and apprehended personal violence orders where no domestic relationship exists.
We offer a complimentary initial consultation for those facing court proceedings concerning an AVO. Our exceptional team utilises specialised experience and strategic techniques honed over many years to enhance your chances of success in the case, allowing you to put this ordeal behind you and move forward with your life.
An Apprehended Violence Order (AVO) is a court directive that imposes restrictions on an individual’s behaviour to protect a specific person from harm. AVOs may prohibit actions like assaulting, harassing, or intimidating the protected person. They can also include restrictions on contacting or visiting certain locations related to the protected person. Violating an AVO can lead to arrest and charges.
These alternatives to custody aim to promote rehabilitation, deterrence, and community safety while offering individuals a chance to address their behaviour without the need for imprisonment. If you require legal guidance or representation, you can reach out to KPT Defence Lawyers at (02) 9267 5555.
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