There are two types of AVOs:
- Apprehended Domestic Violence Order (ADVO) and
- Apprehended Personal Violence Order (APVO)
Domestic Violence (ADVO)
An ADVO related to the protection of a person/s where a domestic relationship exists between the parties- for example:
- Where you are married, de-facto, or in an intimate relationship with the person in need of protection
- Where you live in the same household (a parent or child) with the person in need of protection
Personal Violence (APVO)
An APVO relates to the protection of a person/s where there is no domestic relation between the parties- for example:
- The person in need of protection is a friend or acquaintance
- The person in need of protection is a co-worker
- The person in need of protection is a neighbour
Conditions of Apprehended Violence Orders
The defendant must not do any of the following to the protected people, or anyone they have a domestic relationship with:
- assault or threaten them
- stalk, harass or intimidate them
- deliberately or recklessly destroy or damage anything that belongs to the protected person
Additional orders can be sought depending on the circumstances, for example:
Restrictions put in place against the Defendant:
- No longer allowed to reside at the family home
- Not allowed to contact the protected person except through the use of a lawyer
- Not allowed within a certain distance from the protected person/s residence, work or school
- Not allowed to be in the company of protected person for at least 12 hours after taking alcohol or drugs
- Not allowed to possess any firearms or prohibited weapons
- Not allowed to try and locate the Protected Person.
Who can apply for Apprehended Violence Orders?
- A person over the age of 16 years or a Police Officer can apply for an AVO on behalf of the person in need for protection
- If a person is alleged to have been a victim of physical or sexual assault, threatened with physical harm, been stalked, harassed or intimidated and believes this behaviour will continue
Property Recovery Order
- If you have left your person belonging at the home of the protected person, or the AVO conditions are preventing you from returning home, then you can get them through the court Property Recovery Order.
- When you go to court to respond to an AVO, you can ask for a ‘Property Recovery Order’.
- Before you apply for a Property Recovery Order, you should prepare a list of the property you want recovered.
- The Court may not make orders about some items if there is a dispute about who owns them, unless you have proof you own them.
- The court can order the police to accompany you in recovering your property.
- If you need to recover your property urgently and are unable wait until the matter is heard in court, you should contact the police, as they may be able to help you get your belongings.
- The police cannot help you take property if you and the protected person disagree about who owns it, as disputes about property ownership need to be resolved in court
Your Options in Court
The first court date is called a ‘mention’. The magistrate will want to know:
- if the applicant still wants to go ahead with the application
- how you want to respond to the application.
If the police applied for the Apprehended Violence Order (AVO) on behalf of the protected person, they will represent the protected person.
How you and the applicant respond will determine what orders the Court will make.
It is important that you obtain legal advice prior to the first mention as there are a number of ways you can respond to an application for an AVO, for example:
- You can request an adjournment to obtain legal advice if you have not already done so prior to the first mention date
- The court can refer your case for mediation. These are only applicable in Personal Violence Order (APVO). At the mediation, you will have to discuss your case with the protected person and the mediator. If you reach an agreement, you can have this made into an enforceable agreement. The cost of the mediation will be covered y the court.
- Consent to the AVO order without admissions. This means you agree to an AVO being made against you, but you are not admitting to any of the allegations in the application. The court can make an AVO without deciding whether the facts in the application are true, and whether the applicant fears you. If you do not agree with all the orders the applicant is seeking, you can try to negotiate with them the conditions.
- Do not consent to the order and contest the AVO. This means that parties will be given a compliance date to file and serve their evidence. Parties will be provided with a further court mention date to confirm compliance. Once all parties have complied with their timetable, the court will give you a hearing date.
Consequences of an Apprehended Violence Order
If the court makes a Final Apprehended Violence Order (AVO) against you, it may affect your:
- Criminal history- It will be recorded on your criminal history, but will not be recorded on your criminal record and it will not appear in a criminal record check. If you breach the AVO, it will be a criminal offence and if convicted by the court, the offence will be listed on your criminal record
- Family Law matter- the AVO may affect you in children custody matters. You should get legal advice from a Family Lawyer
- Firearms Licence– If you are charged with domestic violence offences, the police will suspend your firearms licence. If an interim or Final AVO is made against you, your firearms licence will be automatically suspended.
- Security Licence– If the licence is a Class 1F or P1F (a licence which allows you to carry a firearm), you may not be able to work under that licence, because your firearms licence will have been suspended or cancelled.
- Ability to work with children– Usually having an Apprehended Violence Order (AVO) will not stop you being cleared to work with children, but it is possible in some cases that an AVO may be considered in a Working with Children Check. You will need speak to the Office of the Children’s Guardian.
- Rental property– If you and the person in need of protection (PINOP) are co-tenants of a rental property, an Apprehended Violence Order (AVO) may affect your tenancy. An exclusion order is an order that prohibits you from living or going to the rental property.
Penalties for Breaching or Contravening an Apprehended Violence Order
If you breach an Apprehended Violence Order (AVO) you may be arrested and charged with contravening the AVO. The police may give you a Court Attendance Notice and you will have to go to court.
If the Court convicts you of breaching an AVO, you can be fined $5,500 and/or imprisoned for up to two years.
If you breach an AVO by committing a crime, you can receive a separate sentence (punishment) for:
- breaching the AVO, and
- any crime(s) you are convicted of.
If the breach involves violence, it is considered a serious offence and there is a strong chance you will be sent to prison if you are convicted.
Any conviction will appear on your criminal record and in a Working with Children Check.
If you have been charged with a criminal offence, you should get legal advice.
If you decide or have been advised to plead guilty to contravene AVO after receiving legal advice from an experienced criminal defence lawyer, it is crucial that your case is sufficiently prepared to maximise your chances at obtaining a lenient sentence.
Utilitarian Value or 25% discount on punishment
The discount for the utilitarian value of the plea of guilty will be determined largely by the timing of your plea entered. That means, the earlier you enter a plea of guilty, the greater discount you receive on your punishment and also the type of sentence you receive.
The utilitarian value of a delayed plea is less and consequently the discount is reduced
Types of Penalties
Types of penalties the Judge can impose on you include any one of the following:
- Conditional Release Order
Our expert defence team at Criminal Lawyers Sydney may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.
Our team will guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.
These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.
If you have been charged with AVO or contravene AVO, call Criminal Lawyers Sydney anytime on (02) 91528619 to arrange a free first conference with one of our experienced AVO lawyers who will review the allegations and advise you of your options and the best way forward.