Police can either apply for an AVO on its own, or it can arise where a person has been charged with a domestic violence offence.
If an AVO arises in combination with a domestic violence criminal charge, it will run on an interim basis until the resolution of the charge matter. If a person pleads guilty to a domestic violence offence, then an AVO must be made final (however conditions can be negotiated with the police and the court).
At times, police may only initiate an AVO (without an associated criminal charge). If that is the case, then the way in which the matter proceeds takes a different course, discussed below.
Where police refuse to initiate an AVO, and you require the protection of an order, you can file an application with the Local Court for an AVO yourself.
Apprehended Violence Orders are governed under the Crimes (Domestic and Personal Violence) Act 2007.
A person who is protected by the order is referred to the ‘person in need of protection’ (PINOP). The person who has been served with the order is referred to as the ‘Respondent’.
Unlike criminal offences where the test is ‘beyond reasonable doubt’, the court only needs to be satisfied on the ‘balance of probabilities’ to make a final AVO. This is a much lower threshold.
However, in saying this, the court at the time of hearing the matter, must be satisfied of the following:
That there are reasonable grounds to fear the respondent; and
The Person in Need of Protection in fact fears:
The commission of a domestic violence offence; or
The engagement of conduct that is intimidating or stalking.
The court decides this on the ‘grounds of the application’ and the evidence relied upon by both parties.
It is important to note that a stand alone AVO is a civil matter and not a criminal matter.
If an AVO has been issued against you, there is the option of ‘consenting’ to the AVO on a ‘without admissions basis’.
This means that you do not agree with the grounds of the application, however you agree to comply with the conditions.
If you choose this option, the matter is capable of being finalised on the first court date.
AVO applications are usually for a period of 2 years, however this can be negotiated along with the conditions prior to being made final.
Where you do not agree with the AVO and do not consent to a final order being made, you ‘oppose’ the AVO.
Once the AVO is formally opposed, the court will adjourn the matter for a further court date and make orders for parties to file statements to rely upon.
Once those statements are filed, the matter will be listed for a future Hearing date. This is a date where the PINOP, any witnesses and yourself attend court and give verbal evidence in court to the Magistrate. There are exceptions where the PINOP is a child.
While waiting for the matter to be determined in court, the AVO will continue as an interim order.
In some cases, PINOPs are restricted in applying to the court to vary an AVO. Respondents at all times can apply to the court.
An application to vary the conditions of the AVO can be made where a party does not agree with the orders that police have imposed. For example, a condition that prohibits a respondent from returning home or contacting their partner.
Even where the PINOP agrees to the variation proposed by the respondent, the police can still refuse to vary the conditions. If this occurs, the court will set down some time for the application to be heard and materials relied upon to try and convince the magistrate as to why they should make such an order.
An application to revoke a final AVO can be made by either the PINOP or the Respondent.
However, one must bear in mind that this is not an easy task and can be difficult. An applicant will have to prove that there has been a change in circumstances since the making of the final AVO. Where it relates to a child, the court must be satisfied of a significant change in circumstances.
Where you are alleged to have breached a condition of an enforceable AVO, you will be charged pursuant to section 14 Crimes (Domestic and Personal Violence) Act 2007.
If you are found guilty or plead guilty to Contravening an AVO, the maximum penalty is 2 years imprisonment and/or a fine of $2,200.
The maximum penalty is reserved for the most serious offenders, and this does not mean you will receive jail. Each matter turns on its own circumstances.
In order to prove this offence, the following must be proven beyond reasonable doubt:
There is an enforceable AVO against you;
You knew the conditions of the AVO;
You breached one or more conditions of that AVO; and
You did that knowingly.
1. The AVO was not enforceable (for example, it was not served on you);
2. You did not breach a condition;
3. You didn’t know you were breaching a condition at the time;
4. Any breach was accidental.
Any breach of a court order is taken extremely seriously by the courts. It is important that you speak to an experiences criminal lawyer before entering a plea of guilty to the offence. In most cases, the court will consider the recording of a conviction to be appropriate.
In order to try and avoid a conviction, it is important to be guided by an expert legal team who will help prepare important materials for the court on sentence.
25% Utilitarian Discount
Where a Plea of Guilty is entered at the earliest opportunity, you will receive a reduction in your penalty by 25% on sentence.
