New South Wales – Apprehended Violence Orders
Can I protect myself from violence or harassment?
If you fear violence or harassment from your husband or partner, you can take steps to protect yourself by applying for a protection order from a local court or a Federal Magistrates Court or a Family Court. The best form of protection order you can get is from the local court. All Apprehended Violence Orders made by the Court prohibit the person who is causing these fears from assaulting, harassing, threatening, stalking or intimidating you. Other conditions can be included.
What is a protection order?
Protection orders (called Apprehended Violence Orders in New South Wales) are orders made under State or Territory laws that provide a quick and flexible method of obtaining legal protection from many forms of violence, for example:
|Physical abuse, e.g. using physical force|
|Sexual abuse, e.g. forced sexual activity|
|Psychological abuse, e.g. harassment, intimidation|
The local courts can make an “Apprehended Violence Order” (called “AVO” for short).
This is a restraining order, which orders the violent person to stay away from you, your home and/or your workplace. As a general rule, an AVO will stop the violent person from continuing to harass you. No one can guarantee that it will work but facing the violence by yourself is very dangerous.
There are two types of Apprehended Violence Order:
- An Apprehended Domestic Violence Order – used when there is a domestic relationship between you and the other person e.g. partner, relative, house member etc.
- An Apprehended Personal Violence Order -used when there is a not a domestic relationship between you and the other person – neighbour.
Who can apply?
You can apply for an Apprehended Violence Order against a person if you can show that you fear:
|Damage to your property|
|Harassment, intimidation or offensive behaviour|
How to apply
An application can be made to a Local Court by:
|A solicitor, friend, support worker who is authorised by you|
|A police officer.|
In some cases the police must make the application, for example, for children under 16 years and in certain circumstances involving violence against women.
If you called the police for help, then the police can apply for an AVO for you. The police prosecutor would then go to court to ask the magistrate to give you an AVO. You will still need to go to court to tell the magistrate why you need protection.
How do I get a protection order from the Local Court?
You can apply for your own AVO yourself or the police can apply for you. If you apply yourself, the court staff must, as a matter of law, allow you to make an applicatin for an Apprehended Domestic Violence Order.. You must explain to the chamber magistrate that you are afraid of violence or harassment and tell him or her what has happened that makes you afraid. The application will tell the defendant (the person who is causing fears for your safety) the date and time they have to attend court. The application wil be served on the defendant by the police.
If you need protection straight away, you can ask the chamber magistrate to help you get an interim AVO that will last until the case comes up for hearing.
On the day the violent person comes to court you need to come as well and tell the court why you want the order. You must tell the magistrate in court that you are afraid of the violent person and point to particular acts of violence and/or threats of violence that have happened that make you afraid this person will be violent to you in the future.
The order the magistrate makes will vary depending on your circumstances. Three conditions will always be included. These conditions prohibit the following behaviour:
- Assaulting, molesting, harassing, threatening or interfering with the Protected Person;
- Intimidating the Protected Person; and
- Stalking the Protected Person. Anyone in a domestic relationship with the Protected Person can also be protected by these conditions. This may include your children.
The magistrate can also order that the violent person be prohibited from:
- Approaching the Protected Person
- Approaching or enering places where the Protected Person may live, work or go to;
- Approaching the Protected Person, or places where the Protected Person may be, after drinking alcohol or taking illegal drugs;
- Damaging property; and/or
- Any other conditions as agreed by both parties or decided by the Court.
Women’s Domestic Violence Court Advocacy Services are in many Local Courts to assist women who have experienced or are experiencing domestic violence to get appropriate Orders and to provide information and advice. List of WDVCAS phone numbers
The order can be written to suit your situation.
Violence of any kind is a crime and should be reported to the police. The police do not always charge offenders with assault or some other crime. But making the report will help you get your AVO.
Stalking is also a crime and should be reported to the police.
Many police stations now have Domestic Violence Liaison Officers who should be helpful and understanding of your situation.
If police come to your home as a result of violence they are able to get a temporary AVO immediately over the telephone to protect you until you can go to court.
Police may also take any firearms away from the violent person.
If the violent person is on bail for assault or some other crime, you can ask that he be made to report to a police station far away from where you and the children live. It is important to report the violence you suffer to the police.
If you have difficulty with the police contact the Domestic Violence Advocacy Service for assistance. Domestic Violence Advocacy Service
The Domestic Violence Advocacy Service specialises in this area and offers free telephone advice on how to protect yourself and your children.
Can my children be protected too?
You can ask that your children be included as protected persons on your AVO. Children over 16 years old can make their own application for an AVO. Police can make a separate application to obtain an AVO for children under 16 years of age.
You will be given a copy of the order, and the police will keep a copy of it on a central computer. The order stays in place for the period set by the court, usually two years. If you still fear violence after that period you should reapply for a new order. It is always better if you apply for an extension of time on the order before it expires.
If things change, you can apply to the court to have the order altered.
If the violent person disobeys the order, the police can arrest him immediately and charge him with breaching the order.
Breaching an order
The order is a civil order but breach of an order may be a criminal offence. You should keep a copy of your Apprehended Violence Order on you at all times. Contact the police if there is breach of this order.
AVOs and child contact
Where there is an Apprehended Violence Order (AVO) in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system. If the Family Court makes a residence/contact order that conflicts with an AVO, the residence/contact order takes priority. The AVO will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.
Under the Family Law Act, all state and territory orders are described as family violence orders. Such orders may forbid one parent from coming within a set distance of another parent or stalking or harassing them.
Sometimes the Family Court or Federal Circuit Court makes an order or an injunction that is inconsistent with the state or territory order (see Sections 68P and 68Q of the Family Law Act). Under the Family Law Act, family violence orders can allow parties to come into contact with each other only for:
- delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or
- enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings.
For example, if you have a contact order that gives the father contact on weekends but the AVO only allows contact between the father and child on Saturday, you have a conflict about contact on Sunday. The contact order will over-rule the AVO and contact will happen for the entire weekend.
This situation can weaken the AVO and also make it more difficult for the Police to enforce.
Apprehended Violence Orders can be modified by the court to take into account the practical arrangements for contact. Alternatively, contact orders can be made to take into account AVO’s, for example, by arranging for an independent person to be present during contact hand-over times.
A magistrate cannot usually make orders about children in relation to residence, contact and specific issues if there is any dispute between the parents. However, if a Woman applies for a protection order or a variation of her protection order, then the magistrate may at the same time make or vary the terms of her existing Family Court contact order to make it safer for her and the children when contact takes place. The magistrate can also discharge or suspend an existing Family Court order, if among other things, the magistrate is satisfied it would be too unsafe for the Woman or her children if contact continued.
If you have Family Court contact orders in place before you have a domestic violence protection order, try to seek legal advice about whether these laws apply to you before you apply for your protection order.
Sydney Criminal Defence Lawyers
We have experts in all areas of the Criminal Law, ensuring that each of our clients receives the most comprehensive legal advice.
Our Criminal Defense Lawyers will carefully consider your case, advise you on all your legal options and recommend the best way forward.
Our Expert Traffic Lawyers help our clients win their traffic matters in Courts throughout Sydney, every day of the week!