I've Been Served with an Apprehended Violence Order in NSW - What Is It & What Do I Do?
Introduction
Being served with an Apprehended Violence Order in New South Wales can be a confusing and stressful experience. This comprehensive guide will help you understand what an Apprehended Violence Order (AVO) is, how it can affect your life, and the steps you can take to navigate the legal process.
What is an Apprehended Violence Order in NSW?
An Apprehended Violence Order (AVO) is a court order designed to protect a person from violence, intimidation, and stalking by another person. There are two main types of AVOs:
Apprehended Domestic Violence Order (ADVO): This order is made when the parties involved are related, living together, or have had a domestic relationship, such as current or former partners, family members, or individuals living in the same household.
Apprehended Personal Violence Order (APVO): This order is made when there is no domestic relationship between the parties, such as disputes between neighbors, co-workers, or acquaintances.
How Does an Apprehended Violence Order Affect Me?
Having an AVO against you can have significant consequences in various aspects of your life:
Background Checks and Employment
While an AVO itself is not a criminal offense and will not appear on your criminal record, it may still show up on certain background checks conducted by employers. This can potentially impact your ability to secure employment, especially in roles that require a high level of trust or involve working with vulnerable individuals.
Firearms Licence
If you have a firearms licence, a provisional or interim AVO will automatically suspend your licence. If a final AVO is issued against you, your firearms licence will be revoked, and you will be prohibited from holding a firearms licence for a period of 10 years from the date of the order.
Working with Children Check
An AVO that lists children as protected persons may affect your ability to obtain or maintain a Working with Children Check (WWCC). This can limit your employment opportunities in fields that involve direct contact with children, such as education, childcare, or youth work.
Family Law Proceedings
The existence of an AVO can have implications in family law proceedings, particularly in relation to child custody and parenting arrangements. The Family Court of Australia considers the presence and nature of any AVOs when assessing the best interests of the child and determining parenting orders.
Travel
While an AVO itself does not restrict your ability to travel, breaching the conditions of an AVO is a criminal offense. If you are convicted of breaching an AVO, this may result in a criminal record, which can affect your ability to travel to certain countries.
What Must Be Proved to Get an Apprehended Violence Order?
For a court to issue an AVO, the protected person (or the police acting on their behalf) must demonstrate that:
- The protected person has reasonable grounds to fear violence, intimidation, or stalking by the defendant. This fear must be based on the defendant's conduct and not merely on a subjective feeling of apprehension.
- The conduct of the defendant is sufficient to warrant the making of an AVO. The court will consider the nature, frequency, and severity of the alleged conduct when determining whether an AVO is necessary for the protection of the person.
How Can I Defend Against an Apprehended Violence Order?
If you have been served with an AVO and believe that the allegations against you are unfounded or exaggerated, you have the right to defend against the order. To do this, you can:
Oppose the AVO: You can enter a plea of not guilty and contest the AVO application. This means that the matter will proceed to a hearing, where both parties will have the opportunity to present their evidence and arguments.
Attend the Hearing: At the hearing, you (or your legal representative) will have the chance to cross-examine the protected person and any other witnesses, challenge the evidence presented by the prosecution, and present your own evidence and witnesses to support your case.
Present Your Arguments: You can argue that the alleged conduct did not occur, that the protected person does not have reasonable grounds to fear your conduct, or that the making of an AVO is not necessary for the protection of the person.
What Happens If I Breach an Apprehended Violence Order?
Breaching the conditions of an AVO is a serious criminal offense. If you are found guilty of a breach of an AVO, you may face significant penalties, including:
- Fines of up to $5,500
- Imprisonment for up to two years
- A criminal conviction on your record
It is crucial to understand and adhere to the conditions of the AVO to avoid any breaches and potential criminal consequences. When an AVO is made by a court, the order may impose additional conditions on the defendant from contacting or approaching the protected person.
How Can I Stop an Apprehended Violence Order?
If you have been served with an AVO and wish to have the order withdrawn or varied, you have the following options:
Negotiate with the Other Party: If the protected person agrees to withdraw the AVO, you can request that the court dismiss the application. This is more likely to occur in cases where the parties have resolved their issues or where the protected person no longer holds fears for their safety.
Apply to Revoke or Vary the AVO: If there has been a significant change in circumstances since the AVO was issued, you can make the application to the court to have the order revoked or varied. You will need to provide evidence to support your application and demonstrate why the AVO is no longer necessary or why the conditions should be modified.
What Are Your Options When Served with an Apprehended Violence Order?
When you are served with an AVO, you have several options:
Consent to the AVO: You can choose to accept the AVO and its conditions without admitting to the allegations made against you. This means that the order will be in place, but you are not making any admissions of wrongdoing. If you consent to the order, the court may make the AVO without requiring a hearing.
Oppose the AVO: If you disagree with the allegations and wish to defend against the order, you can oppose the AVO and have the matter go to a hearing. In AVO proceedings, the court will consider evidence from both parties before deciding whether to make an interim or final AVO.
Seek Legal Advice: Given the complexity of AVO laws and the potential consequences of having an order made against you, it is highly recommended that you seek legal advice from an experienced solicitor who can guide you through the process, help you understand your rights and options, and represent your interests in court.
Types of Conditions in an Apprehended Violence Order
In New South Wales, under the Crimes (Domestic and Personal Violence) Act 2007, every Apprehended Violence Order (AVO) must include specific mandatory conditions to protect the person in need of protection (PINOP). These conditions are designed to prevent the defendant from engaging in violent or threatening behaviour towards the protected person or anyone they have a domestic relationship with.
Mandatory AVO Conditions:
These conditions are standard in every AVO and include:
- No Assault or Threats: The defendant must not assault or threaten the protected person.
- No Stalking, Harassment, or Intimidation: The defendant must not stalk, harass, or intimidate the protected person.
- No Damage to Property: The defendant must not deliberately or recklessly destroy or damage any property belonging to the protected person or anyone they have a domestic relationship with. This includes pets.
These mandatory orders provide a baseline level of protection. They don't prevent all contact or necessarily exclude the defendant from shared premises, so they can be made even if the parties involved are still living together or in a relationship.
Additional AVO Conditions:
Besides these mandatory conditions, the court may impose additional orders if they deem them "necessary or desirable" to ensure the safety and protection of the protected person and any children or family members involved. These additional conditions can include:
- Restrictions on Contact: The defendant may be prohibited from approaching or contacting the protected person directly or indirectly, except through a lawyer or as otherwise specified by the court (e.g., for court-ordered counseling or child contact arrangements).
- Restrictions on Location: The defendant may be prohibited from living at a certain address, going to certain places frequented by the protected person (like work or school), or coming within a specified distance of the protected person's home, workplace, or other locations.
- Restrictions After Alcohol or Drug Use: The defendant may be prohibited from approaching or being in the company of the protected person for a specified period (usually at least 12 hours) after consuming alcohol or illicit drugs.
- Weapon Restrictions: The defendant may be prohibited from possessing firearms or other prohibited weapons.
- Other Restrictions: The court can impose other restrictions as needed, such as prohibiting the defendant from trying to locate the protected person or engaging in specific behaviors that could affect the protected person's safety.
The specific additional conditions included in an AVO will vary depending on the individual circumstances of the case and the specific risks faced by the protected person.
Property Recovery Orders
If you live with the protected person and an AVO prevents you from returning to the residence, you may still be able to negotiate or apply for a property recovery order to collect your belongings. There are a few options to arrange access to the premises to retrieve your personal belongings, such as:
- Arranging access through you and the protected person's legal representatives;
- Requesting a police escort to the premises to collect your belongings. The police will attend the premises with you and supervise as you collect your things.
- Applying to the Court for a property recovery order. The conditions for a property recovery order can include:
- nominating another person who can collect the belongings on your behalf;
- allowing a police officer to accompany you to retrieve your property;
- specifying the date and time to attend the premises to collect your property, agreed between you, the protected person and the police; and
- the protected person must grant you access to the premises and allow you to retrieve the specified belongings, with police in attendance if needed.
It is important to note that a property recovery order cannot be used to recover possession of the property, only your personal belongings that are located at the property.
Consequences of an Apprehended Violence Order on Your Record
Having an AVO made against you can have long lasting consequences in addition to the specific conditions of the AVO:
- Limitations on employment opportunities: certain professions and industries require employees to pass background checks or obtain specific clearances. Having an AVO may impact your ability to work in fields such as law enforcement, security, or child-related services.
- Negative impact on future legal proceedings: if your are involved other legal matters, such as family law proceedings or criminal charges, the existence of an AVO may be taken into account by the court and potentially influence the outcome of those proceedings.
Appealing an Apprehended Violence Order
If you believe that an AVO was wrongly made against you, you have the right to appeal the decision. There are two main avenues for appealing an AVO:
Appealing to the District Court: You can lodge an appeal against the Local Court's decision to make the AVO. The appeal must be made within 28 days of the order being made, and you will need to demonstrate that there was an error in the original decision or that new evidence has come to light that could affect the outcome.
Applying for an Annulment of the AVO: If an order was made in your absence, you can apply to the Local Court for an annulment if you were not present at the hearing. You must show that you were unaware of the court date, or unable to attend due to illness, accident, misadventure or other causes, or alternatively that it in the interests justice grant the anullment. An application for an annulment should be made within 2 years the order being made.
Importance of Seeking Legal Advice
Navigating the legal system and defending against an AVO can be a complex and daunting process. Seeking legal advice from an experienced solicitor who specializes in AVO matters is crucial to ensure that your rights are protected and that you have the best possible chance of achieving a favorable outcome.
A skilled solicitor can:
- Advise you on the strengths and weaknesses of your case
- Explain your legal options and the potential consequences of each course of action
- Represent you in court and advocate on your behalf
- Negotiate with the other party or the police to seek a withdrawal or variation of the AVO
- Help you gather evidence and prepare your defense
- Provide guidance on complying with the conditions of the AVO and consequences of breaching order
By engaging legal representation, you can ensure your case is properly presented and that you have access to support and guidance throughout the process.
Conclusion
Being served with an Apprehended Violence Order can be a stressful and confronting experience, but understanding rights options help navigate legal process greater confidence. seeking legal advice, complying conditions order, taking proactive steps address situation work towards resolving matter minimizing impact on life.
Remember, AVO serious matter far-reaching consequences, essential take necessary precautions seek professional support protect interests ensure best possible outcome.
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