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  • Apprehended Violence Orders (AVOs) in New South Wales (NSW)

    The rights and dignity of all lives in Australia are non-negotiable, and that is why special laws protect; abuse, neglect, threats or assaults to a person.

    In New South Wales (NSW), these laws are called the Apprehended Violence Orders (AVOs). It is an order of restraint or prevention that protects one party (applicant or accuser) from abuse or assault from another (accused or the respondent).

    There are various forms of abuse or assault covered under the legislation, including

    • Physical abuse
    • Mental abuse
    • Emotional
    • Sexual abuse

    The Crimes (Domestic and Personal Violence) Act of 2007 stipulates order, details and breaches under this law.

    In most instances, a breach of an AVO is a criminal offence and will show up on a national police check NSW. The offence is disclosed in accordance with the spent convictions legislation.

    What are the types of AVOs?

    Following the circumstances around the charge, the court may order;

    ADVO (Apprehended Domestic Violence Order)

    It is a protection order against the accused where there is a domestic relationship between both parties. It includes;

    Acts of violence or threats

    • Among tribes of kin
    • Between partners
    • Among blood relatives or siblings

    APVO (Apprehended Personal Violence Order)

    Where the court does not see a reason or relationship around the charge, it imposes an APVO. Such cases involve those of;

    • Co-workers
    • Neighbours

    Who can apply for an AVO in NSW?

    A person can apply to the local court in NSW for an AVO against a person that threatens their safety. They can also appeal to the Police office to make a temporal/provisional order pending when the court gives a final order.

    An example of where a Provisional order is made is in cases of domestic violence where or a person is in urgent need of protection (Physical bullying or abuse)

    Police officials are also allowed by law to apply for an AVO depending on the circumstances;

    • Where the sufferer can't apply
    • In urgent cases
    • Without the consent of the sufferer (severe cases)

    The Police may make an application where it senses the person is suffering from cases of violence. It includes;

    • Domestic violence
    • Stalking

    An applicant can engage the services of lawyers when completing their AVO applications.

    On completing the application, the court sends a notice or summon to the accused and fixes a date for the hearing.

    Who Orders AVO orders in NSW?

    The Local or Magistrate court handles all cases of the AVO charges in NSW.

    1. For an Apprehended Domestic Violence Orders

    The court will impose conditions of an AVO where it establishes;

    • The applicant has a domestic relationship with the defendant (accused)
    • The applicant has a valid reason to fear for their life especially from the accused
    • And other relevant evidence and circumstances that may lead to apprehension

    1. Apprehended Personal Violence Orders (APVO)

    The Court will make an APVO order where it establishes that;

    • Those seeing protection have reasonable grounds to fear
    • There is no relationship between the parties (applicant and respondent)
    • The respondent has a previous history of violence or causing apprehension

    The court may not need proof of fear in some cases, such as where it concludes a finding of apprehension. An example of such is where the applicant is under 16 years of age.

    The court considers other factors such as;

    • Potential hardships the conditions may cause
    • The impact on other people such as children
    • The accommodation needs and primary rights of the party

    What are the conditions of an AVO in NSW?

    The conditions of the AVO may contain extra restrictions than those stated in the legislation, but not for a longer period than stated.

    The Court will order these conditions based on the circumstances and protection requirements.

    Section 36 of the Act mandates the flowing conditions on the recipient of an AVO order;

    The Order must explicitly contain conditions that prohibit the recipient from;

      ✔ Assaulting, Molesting, Harassing, Interfering or blackmailing the protected person
      ✔ Stalking, attempting violent acts or threatening the protected person
      ✔ Vandalizing, revenging, including; other intentional or reckless acts of destruction against the protected person or their properties.

    Other restrictions or conditions may include;
    • Removal or ejections from a shared apartment
    • Barred from contacting the protected person except through a lawyer
    • Not allowed to be within distance of the protected person especially after taking alcohol or drugs
    • Not allowed to possess a firearm or prohibited weapon
    • Not allowed to locate the protected person

    The applicant may also appeal to the court through their solicitor/lawyer on other custom conditions the court can impose that will guarantee their safety.

    How long does an AVO last?

    The Crimes Act allows the court to decide a running period of the AVO depending on when the applicant feels safe. These orders usually carry the duration of the order given in court, depending on when they feel the applicant will be safe.

    However, the order will remain in force for 12 months from the issue date if no expiry date is given.

    Breaching an AVO

    While an AVO is not a conviction or guilt finding, a breach is a criminal offence and the offence will show up on a national police check NSW in accordance with the spent convictions scheme of NSW. Breaching an AVO includes refusing or contravening any conditions stipulated by the order.

    Section 14 of the Crimes Act stipulates and guides the court in issuing the pertinent penalties to offenders.

    The maximum penalty imposed by the court is;

    • 2 years jail term
    • Maximum fines of 50 penalty units ($5500)
    • Both options

    However, the court does not deem it an offence if the protected person aids, abets counsels or procures the accused to breach the condition.

    When does an AVO become active?

    The AVO is enforceable as soon as the court makes the final order. If a court order involves the defendant moving out of a settlement or apartment, they must proceed immediately.

    What should I do if I receive an AVO summon?

    If you receive a court summons for an AVO charge, you must appear in the court at the specified date with your lawyer. An experienced lawyer will get you better terms or even argue out the legality of the AVO.

    The available lines of response to an AVO order include;

    • Agree to the AVO terms
    • Give the court an undertaking
    • Make a cross-application
    • Challenge the application

    What happens if I do not show up in court?

    If you don't show up in court for an AVO summons, the court may issue a serious warning. Else, the court may just impose all conditions in your absence.

    Also, if the court or police charge you for a breach and you don't show up, you will face stiffer penalties (in your absence) than those stated here.

    Source

    Crimes (Domestic and Personal Violence) Act 2007 (NSW) - http://www5.austlii.edu.au/au/legis/nsw/consol_act/capva2007347/

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