How Do AVOs Work?
AVOs (Apprehended Violence Orders) are court-issued protective measures designed to safeguard individuals. These orders, aimed at ensuring the well-being of the person seeking protection, prohibit the individual known as the ‘defendant’ from engaging in actions such as assault, molestation, harassment, intimidation, or stalking against the protected person for a designated duration.
There are a number of tricky details involved with the AVO process.
This article will deal with common questions people may have about AVOs and provide the answers you need if you are applying for or have been served an AVO.
What evidence do you need for an AVO?
To obtain an AVO you will need to demonstrate two basic requirements:
- That you fear the defendant; and
- There are reasonable grounds to fear the defendant.
The best way to go about this is to report any violence you suffer immediately to the police. When speaking to the police, provide as much detail as possible about the defendant, including their name, address and details of the incidents which cause you fear. It can be useful to support this with various forms of evidence – photos, doctors’ reports or information on the defendant such as their drug habits can all be useful evidence.
If the AVO proceeds to a hearing you may have to justify your case to a magistrate. This is where supplying evidence to the police can come in handy, because a police prosecutor can argue your case on your behalf.
What Happens when you get an AVO?
If you are served an AVO you can either consent to the order or oppose the order. Consenting to the order means that you agree to the terms of the AVO and will comply with those terms. It is NOT an admission of crime by yourself, merely an acceptance that you will follow the order.
If you choose to oppose the AVO you will proceed to a hearing where a magistrate will determine whether the fear faced by the protected person is reasonable.
Most importantly, remember to strictly abide by the terms of an AVO if you are served one, as any breach could land you with a harsh criminal penalty.
Does an AVO stay on your record?
The AVO itself does NOT appear on your criminal record but will appear in your criminal history. This is so the court can access the information for its own purposes – however, a criminal background check (e.g., by an employer) will not turn up an AVO on your record.
However, if you breach your AVO and are charged with an offence, that offence will be recorded on your criminal record.
How to get an AVO dismissed?
There are a few ways to get an AVO dropped. The first is to negotiate with the protected person to drop the AVO if you provide a signed undertaking to comply with the conditions asked for in the AVO. This undertaking is not legally enforceable but can be relied on by the court if the protected person should wish to serve an AVO on you in the future.
Alternatively, you could oppose the AVO. If the court finds the claims to be baseless or doesn’t form the view that the protected person should be reasonably fearful, the court can dismiss the AVO.
If you are a protected person and an AVO was filed on your behalf by police or a family member you can also seek to have an AVO dismissed. To do this you would have to give evidence in court showing that you have no fear of the defendant.
What do I do about a false AVO claim?
It can be difficult to disprove an AVO claim, given that most violence occurs in domestic settings without witnesses. The best course of action would be to avoid breaching the AVO and to seek a defence lawyer. That defence lawyer can help you oppose the AVO and prove that on the balance of probabilities the protected person has no reason to fear you.
How much does an AVO cost?
There are some financial risks associated with AVOs. Where AVOs go to final hearings the winning party can ask the court to impose costs on the losing party. Furthermore, the court can make orders for costs against protected persons who provide frivolous or vexatious claims.
What are Personal Violence Orders?
Apprehended Personal Violence Orders (APVO) are one of two AVO types. The other is the Apprehended Domestic Violence Order (ADVO). ADVOs require a domestic relationship to exist between the protected person and the defendant. If you are not in such a relationship an APVO applies.
How to find out if someone has an AVO?
As stated above, an AVO only appears in court histories and not in a general criminal background check. This means that an unrelated third party cannot find out if someone has an AVO.
Can I lodge an AVO on behalf of a child?
A child under 16 cannot lodge an AVO by themselves. However, someone in a domestic relationship with the child in addition to the police can lodge an AVO on behalf of the child. Police have a special duty of care that compels them to lodge an AVO for a child if they have recently been, are currently or will likely be a victim of violence, abuse or neglect. Importantly AVO matters for children are run slightly differently. Children generally will not need to provide evidence in court. If a child has to give evidence, they can have a parent or support person in the courtroom.
Do you have to attend court for an AVO?
You must attend court for an AVO. If you are a defendant and are served an AVO and do not appear in court the magistrate can make an ‘ex parte’ order in your absence to impose the orders on you regardless.
AVOs can be quite complex and require different courses of action depending on your circumstances and whether you are a protected person or a defendant. If you require an AVO or are served an AVO a specialist lawyer can help advise the best way forward. Contact us via the form.
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