In the state of New South Wales, an AVO is a court order which is made pursuant to the ‘Crimes (Domestic and Personal Violence) Act 2007’with the object of protecting a Person In Need Of Protection (PINOP) from any harassment, intimidation, and or violence.
AVO applications in New South Wales can be made by the police or they can also be personally made by the person.
The person who applies for the AVO is commonly known as the ‘Applicant’ and the other party who the AVO is made against is known as the ‘Defendant.’
Can the police apply for AVO on a person’s behalf?
Usually, police will apply for an AVO on behalf of the person if any of the following exist:
- A person has been or is likely to be a victim of a Domestic Violence in the foreseeable future.
- A Child has been or is likely to be a victim of an Offence
- A Person is being or has been stalked or intimidated by another person, with the intent to cause fear of physical or mental harm.
- Any other reason which the police see necessary given their assessment of the facts and circumstances of the matter.
The Court Process.
In NSW if the defendant does not agree to an AVO order being made against him or her, the matter will be adjourned and proceed to a Hearing.
The Applicant and the defendant will be required to provide written witness statements and if the written witness statements are not provided on time, the court may dismiss the AVO Application.
It should also be noted that in the event the defendant in the proceedings does not provide a statement then that person may not be allowed to give any evidence at the Hearing.
Once both the Applicant and Defendant in the proceedings have filed the statements then the matter will be assigned a Hearing date.
Please note that it is a criminal offence to make a false or misleading statement when applying for an AVO.
If the Applicant does not attend the Hearing, then the AVO application will be dismissed. Likewise, if the defendant does not attend Court, then the AVO may also be made in that person’s absence.
If the Police have applied for an AVO on your behalf, then the Police Prosecutor will represent you in court.
If you have personally applied for an AVO then you can either get a lawyer to represent you in the AVO proceedings or alternatively you can also represent yourself.
On the day of the Hearing, the Applicant will give his or her evidence first. After the applicant gives their evidence then the defendant will be given the opportunity to give their evidence. In some instances, the court could make an order that the unsuccessful party pay the other parties’ costs incurred as a result of the AVO proceedings. In Domestic Violence Matters this only usually happens if the court decides that the application which was made was intended to cause unnecessary trouble or if there was no basis for the application etc.
In AVO proceedings, what ORDERS can the court make in NSW?
It should be noted that if you are in urgent need of an AVO in NSW then the court can make an Interim AVO which protects you until the Hearing.
If the AVO was applied for on your behalf, through the NSW police, then the police can also make a Provisional AVO to protect you until the Hearing.
If serious charges are laid against the defendant in the proceedings, then the court must make an interim AVO order.
When can the Court make Final Orders for an AVO?
The court can make a Final order for an AVO in the event that:
- The defendant consents to the AVO without admitting that he or she have done anything wrong, and this is pursuant to section 78 of the Crimes (Domestic and Personal Violence) Act 2007; or
- After the Hearing, if the court is satisfied on the balance of probabilities that there are reasonable grounds for the Applicant’s fear(s) for his or her safety; or
- If the defendant has been served with the AVO application but did not attend court and did not have a proper reason as to why he or she failed to attend court.
If an AVO is made against me, do I get a criminal record?
In the event that you are the defendant in the AVO proceedings, and the court makes an AVO order against you, you do not get a criminal record, however it should be noted that any breach of the AVO is a serious criminal offence as it is a breach of a court order, and it may result in a Criminal Conviction.
Can an AVO affect my firearms licence?
If you are the defendant in the AVO proceedings and you hold a firearms licence, then pursuant to the Firearms Act 1996, the firearms licence will be cancelled for 10 years and any firearms which you may hold will be seized.
Can I vary the AVO?
Yes, however an application to vary the AVO must be applied for in court. Only the police have the power to change or even cancel an AVO in the event that a child or children have been named in the AVO.
Can I extend the AVO?
Yes, if you are the applicant in the AVO proceedings, you can apply to have the AVO extended prior to the AVO’s expiry if you still hold a ‘reasonable fear’ of the defendant.
Our team of experienced solicitors are there for you and can help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects the Laws of NSW as at 9th May 2022.
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