AVOs an introduction
What is an AVO? | Types of AVOs | How is a domestic relationship defined?
Who can be included in the AVO? | AVOs and suspected child abuse offences
Orders included in an AVO | Duration of AVOs | External protection orders
What is an AVO?
An Apprehended Violence Order (AVO) is a Court order which prohibits a person from behaviour such as harassing or intimidating another person.
The order itself does not give a criminal record. However the breach of an AVO is a criminal offence and the police may arrest and charge a person who breaches an order.
The purpose of an AVO is to protect a person against acts of violence such as physical assault, non-physical abuse such as harassment or intimidation, or damage or threatened damage to property.
The victim does not have to be living with the person who abuses her.
There are two types of AVOs, domestic and personal. This section is primarily concerned with domestic AVOs (ie ADVOs). | On what basis is an AVO made?
An AVO is made by a Magistrate if satisfied, on the balance of probabilities, that the person who is seeking the protection order has reasonable grounds to fear and in fact fears that the defendant will commit a personal violence offence, or fears harassment, molestation, intimidation or stalking.
A person under 16 years of age or a person who suffers from an 'appreciably below average general intellectual function' is not required to show the same level of proof.
What is the law?
The law regarding Apprehended Violence Orders (AV0s) is contained in Part 15A of the Crimes Act 1900 (NSW). In April 2000, amendments to Part 15A made significant changes in relation to AV0s including the introduction of the distinction between domestic violence orders (ADVOS) and orders sought in relation to personal violence (APV0s). |
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Types of AVOs
Although all AVOs operate in the same way, they are divided into two categories -
- Domestic (ADVOs)and
- Personal (APVOs).
ADVOs
Apprehended Domestic Violence Orders (ADVOs) are made when a domestic relationship exists between the victim (complainant) and the abuser (defendant).
APVOs
Apprehended Personal Violence Orders (APVOs) are made to protect a person from an abuser (defendant) when there is no domestic relationship which links the two people, for example, neighbours or work colleagues.
| Similarities and differences: AVPOs and AVDOs
As noted above, an AVO granted when there is a domestic relationship (ADVO) and one which is granted when there is no specific relationship between the parties (APVO) are the same in legal effect and consequences.
However, some significant differences flow from the two categories:
- Police have an obligation in certain circumstances involving domestiv violence, to apply for an ADVO.
- Legal aid is available to victims (complainants) in ADVOs, and in exceptional circumstances, to abusers (defendants).
- Legal aid is not granted to either party in APV0s.
- In certain cases, APV0s may be referred to a community justice centre for mediation. This should not take place in respect of ADVOS.
- The authorised justice” has discretion to refuse to issue process in an APVO unless the complaint was made by a police officer.
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How is a domestic relationship defined?
A domestic relationship exists when a person:
- Is a current or former spouse; or
- Is a current or former defacto partner (which includes couples in gay and lesbian relationships); or
- Is in or has been in an intimate relationship with the victim; or
- Cares or has cared for the victim; or
- Resides with or has resided with the victim; or
- Is or has been a relative of the victim.
Whether a perpetrator is a relative of the victim, and therefore in a domestic relationship with her, can be a difficult question. The definition of "relative" given by the legislation includes people related by marriage as well as those related by defacto partnership.
| A relative is:
- a father, mother, grandmother, grandfather, step-father, step-mother, father-in-law or mother-in-law
- a son, daughter, grandson, grand-daughter, step-son, step-daughter, son-in-law or daughter-in-law
- a brother, sister, half-brother, half-sister, brother-in-law or sister-in-law
- an uncle, aunt, uncle-in-law or aunt-in-law
- nephew or niece
- cousin
- in the case of defacto partners, a person who would be such a relative if the defacto partners were married.
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Who can be included in the AVO?
An AVO can protect members of the victim's family and the victim’s new partner, if any, if they are also at risk of violence from the defendant.
It is not necessary that these people live with the person in need of protection. It is therefore possible for a woman to extend her AVO to provide protection to her children.
However, where a child under the age of 16 is the specific person in need of protection, the police must make a complaint for an order, if a domestic violence offence, stalking offence or offences under the Children and Young Persons (Care and Protection) Act 1998 NSW.
For example, a young woman of 15 who is being stalked and harassed by her ex-boyfriend must contact the police to apply for an AVO to give her protection. She cannot make the application herself.
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AVOs and suspected child abuse offences
Police must apply for an AVO for a person under 16 years if they suspect or believe that a child abuse offence, as defined in the Children and Young Persons (Care and Protection Act) 1998 has been committed, is being committed, is imminent, or is likely to be committed.
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Orders included in an AVO
Unless the Court orders otherwise, every AVO
prohibits the defendant from conduct which
intimidates the woman or any person with whom she has a domestic relationship, and also prohibits the defendant from stalking the woman.
These prohibitions are stated in Part 15A of the
Crimes Act.
Magistrates may make any orders they see fit. There are a number of "standard orders" which are
commonly made. None of these standard orders are set in stone, so the AVO can be adapted to suit the woman's circumstances.
Magistrates may also vary or revoke AVOs.
Orders in section 562BC Crimes Act 1900
- The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s).
- The defendant must not stalk the protected person(s).
Other optional orders
1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person
2. The defendant must not reside at the premises at which the protected person may from time to time reside, or other specified premises
3. The defendant must not enter the premises at which the protected person may from time to time reside, work, or other specified premises
4. The defendant must not go within........ metres of the premises at which the protected person may from time to time reside, work, or other specified premises
5. The defendant must not approach, contact or telephone the protected person, except as agreed in writing or for any purpose permitted by an order or directions under the Family Law Act 1975 as to counselling, conciliation or mediation.
6. The defendant must not approach, contact or telephone the protected person except for the purpose of arranging or exercising access to children, as agreed in writing or as otherwise authorised by an order, or registered Parenting Plan under the Family Law Act 1975 (Cth).
7. The defendant must not contact the protected person by any means (including through a third party) except through the defendant's legal representative.
8. The defendant must surrender all firearms and related licenses to NSW Police.
9. The defendant must not approach the school or other premises at which the protected person may from time to time attend for the purposes of education or child care or other specified premises
10. The defendant must not approach the protected person within 12 hours of consuming intoxicating liquor or drugs.
11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person.
12. That the Court extend the operation of these orders to protect the following persons with whom the complainant has a domestic relationship.
| The woman can ask for an order that the defendant not go within a certain distance of her residence or work, without actually disclosing the address. This has been specifically provided for by the legislation.
Note also that these orders can be requested in interim orders, including Telephone Interim Orders.
Exclusion orders
It is possible to seek an order that the defendant be excluded from the party's home, even if he would otherwise have a right to be there. This is called an ‘exclusion order’. In deciding whether or not to make an exclusion order, the Court should consider each party's accommodation needs, the effects on any children ordinarily living at the residence if an exclusion order is made, and the consequences for the protected person and any children ordinarily living at the residence if an exclusion order is not made. If an exclusion order is sought but not granted, the Court must give reasons for its decision.
Inclusion of family members in AVOs
A woman can include any person with whom she has a domestic relationship (for example, her new partner, her mother or her child) in her AVO, without that person having to take out a separate AVO against the defendant. In this way, a child under the age of 16 years may be protected under his or her mother's AVO, without a separate police application.
Including others with whom the woman has a domestic relationship is not something that will be automatically granted if asked for. There must be grounds to seek that the order covers additional people.
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Duration of AVOs
Telephone Interim Orders (TIO)
Telephone Interim Orders usually last only for 14 days and will be listed by the police as a complaint within this time.
In special circumstances a TIO may be made for an extended period lasting 28 days if the authorised justice is satisfied that the Local Court closest to the place at which the application for the order is made is not sitting within the 14 day period following the making of the order.
Interim order
An Interim Order, on the other hand, remains in force until:
- It is revoked by the court, or
- Until the complaint is withdrawn or dismissed, or
- Until a final APVO or ADVO is made, or
- Until a final APVO or ADVO is served on the defendant where the defendant was not in Court when the final order was made.
| Final AVO
A final AVO can be made for as long as the Court believes it is necessary to ensure the woman's protection. While theoretically, an AVO can be made for ten or twenty years, the usual duration ranges from between six months to two years. |
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External protection orders
A protection or restraining order made in another State or Territory, and a restraining order made in New Zealand, may be registered in New South Wales so that it is enforceable as an AVO. Similarly, an AVO made in NSW can be registered in other Australian jurisdictions.
An application for registration can be made at any Local Court or the Children's Court if the defendant is under 18. The protected person should provide the Court with a copy of the order and proof that it has been served. | Notice of the registration should not be given to the defendant unless the protected person consents. This is particularly appropriate for women who move interstate to escape domestic violence and do not wish to notify the defendant of their whereabouts.
The order can be registered at the Court office without the woman having to go before the Magistrate.
If the order needs to be modified or adapted in order to be enforceable in NSW, it will be referred to a Magistrate or Children's Magistrate for modification or adaptation. |
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