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Everything You Need To Know If You Have Been Served With An AVO

, Everything You Need To Know If You Have Been Served With An AVO

Everything You Need To Know If You Have Been Served With An AVO

WHAT IS AN AVO?

An Apprehended Violence Order (AVO) is a Court order made to protect a Person in Need of Protection (PINOP) from the Defendant, the person whom the order is made against.

TYPES OF AVO’S

There are two different AVOs a Court can impose, and this depends on the nature of the relationship between the defendant and the PINOP. There are, Domestic (ADVO) and personal (APVO). An ADVO protects individuals from a spouse, de facto partner, ex-partner, family member, carer or other person living in the same household. This essentially covers any relationship to the PINOP that is domestic in nature

An APVO protects individuals from anyone who they are not in a domestic or family relationship with.

CONDITIONS

A Court may order any condition on a defendant’s seen as appropriate to ensure the safety of the protected person.

However, section 36 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘The Act’) states that every AVO must contain the three following conditions that prohibit the defendant from:

  1. Assaulting, threatening, molesting, harassing, or interfering with the protected person;
  2. Stalking or threatening the protected person; and
  3. Intentionally or recklessly destroying or damaging any property belonging to the protected person.

Other types of conditions that may be imposed include:

  • 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.

DURATION OF AVO

There are three different forms an AVO may take: Provisional, Interim, and Final.

Provisional Orders are short-term AVOs that can be granted in urgent situations without the matter having to be brought before the Court. Police decide, based on information provided by the PINOP, whether to make a Provisional AVO. It is a requirement that the PINOP had a fear or apprehension of violence at the time of the incident which led them to go to the Police.

A provisional AVO cannot be amended until it is brought before the Court, when it becomes an Interim Order.

Once the Defendant submits that the Order should be Interim, the Court can amend or extend a Provisional Order or put protection(s) in place for the victim until a final ADVO application can be considered by the Court. An application is made pursuant to section 18 of The Act.

A final AVO can be made by the Court after a defended hearing, if a Defendant has been served with the AVO documents but fails to appear in Court, or in cases where both parties consent to the conditions specified in the Order.

The duration of a final AVO is specified by the Court and can be as long as the Court deems necessary to ensure the safety of the protected person, or 12 months if there is no date specified. If an AVO is breached, a Defendant can face criminal charges for breaching the Order under section 14 of The Act.

WHAT SHOULD YOU DO IF YOU HAVE BEEN SERVED WITH AN AVO

If you have been served with an AVO you should first contact a Criminal Lawyer. A Criminal Lawyer will review the AVO with you and explain the conditions imposed and the importance of not breaching them. They will then gather some information about your current circumstance and discuss your options in respect of consenting or contesting the AVO at Court (Note, an AVO is a civil order. The Process is different if there is a criminal charge involved).

If you instruct the Criminal Lawyer to contest the AVO, at the first Court mention the Lawyer will inform the Court the AVO is contested and seek for a timetable to be set. The Court will set dates for the following:

  1. Applicant to file and serve evidence
  2. Respondent to file and serve evidence; and
  3. Compliance check.

APPLICANT

In most circumstances the applicant will be the police making an application for the PINOP. To comply with the timetable set, the police will need to serve a brief of evidence consisting of all the material they intend to rely upon in support of the application by a certain date.

RESPONDENT

The respondent is the defendant, and they are usually required to draft a statement in response to the brief of evidence by a certain date. The statement is an opportunity for the defendant to highlight that the PINOP was not in fear or in fact fear. The test for a AVO is not difficult to satisfy so it is important the statement is prepared well with comprehensive instructions.

A well prepared statement in circumstances where the prosecution appear to have a weak case can be powerful for negotiations. Successful negotiations can result in the AVO being withdrawn and dismissed before the AVO hearing.

COMPLIANCE CHECK

The compliance check is a simple Court mention whereby the Court confirms both parties filed evidence and sets a hearing date if the respondent still wants to proceed with contesting the AVO.

CONCLUSION

At National Criminal Lawyers® we often deal with AVO matters. If you or someone you know has been served with an AVO, contact us

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