Understanding AVOs in NSW – Legal Protection & Defence Guidance

Your Rights, Court Process, Defences & What to Do Next

What is an AVO?

AVO’s are Orders that a Court makes to protect people by ordering a person known as the ‘defendant’ not to assault, molest, harass, intimidate or stalk the protected person for a specific period of time. During this period of time it restricts certain conduct and may have additional Orders that prohibit you from keeping in touch and contacting your loved ones or certain other people in your life. It seeks to protect a ‘person in need of protection’ (PINOP), from violence, harassment, intimidation or stalking.

AVO’s do not give defendants a criminal record, unless convicted for breaching the conditions of the AVO.

If you do not comply with the conditions of an AVO the maximum penalty for disobeying an AVO is two years imprisonment and/or a fine of $5,500.

The consequences for defendants is that they are not allowed to keep any firearms, or to hold a firearms licence for 10 years after the AVO ends, unless the AVO is cancelled by the court. If you are a defendant and have a firearms licence, or any firearms, you must immediately surrender them to the police.

How to Apply for an AVO

Police Officers can apply for an AVO or alternatively a person over the age of 16 can apply for a private AVO at the court registry. Police evaluate situations and if there a welfare and safety concerns made by the police officer, they can issue an AVO even when the PINOP doesn’t want one.

If the AVO is approved, it can be in the form of an application for an AVO, provisional AVO or interim AVO, before it is either consented to by the defendant or a final determination is made by the magistrate in court

Types of AVO’s

ADVO (Apprehended Domestic Violence Order)

An ADVO relates to the protection of a person/s where a domestic relationship exists between the parties. Examples are:

• Parent and child

• Married, intimidate relationship, De-facto relationships

A domestic relationship means the people involved are related, living together in the same household, in a current or former intimate relationship, in a dependant care arrangement including foster carers, carers for a person with a disability or disability support workers, or people living in the same residential facility.

APVO (Apprehended Personal Violence Order)

An APVO relates to the protection of a person/s where there is no domestic relationship between the parties. Examples are:

• Co-workers and neighbours.

• Friend or acquaintance

Consequences of an AVO

An AVO is a civil court proceeding and will not appear on your criminal record. Breaching an AVO will result in significant criminal charges which are dealt with very seriously by courts. However, even if no breach occurs AVO’s can have a major impact on your professional and personal life. It places vast amounts of stress on your family life and there is always is a possibility a breach could occur that could have serious implications for both you and your family.

AVO Conditions in NSW

Mandatory Condition – Condition 1

The defendant must not do any of the following to (the protected people), or anyone they have a domestic relationship with:

A) assault or threaten,
B) stalk, harass or intimidate and
C) deliberately or recklessly destroy or damage anything that belongs to the protected people.

Additional Orders

Additional orders can be sought depending on the circumstances, for example:

Restrictions put in place against the Defendant:

• 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

• Not allowed to possess any firearms or prohibited weapons

• Not allowed to try and locate the Protected Person

What Happens at Court?

The court can make an AVO if:

• the defendant consents to an AVO being made; or

• after hearing evidence, the magistrate is satisfied that there are fears for the PINOPS safety and those fears are reasonable; or

• the defendant has been served but does not show up at court.

Consent Orders

If you agree to the Order being made the magistrate can make an AVO. This means you can consent (agree) to the Order being made, without admitting you have done anything wrong.

Defending an AVO

By presenting evidence that the protected person (PINOP) does not fear and has no reasonable grounds to fear the defendant and the AVO isn’t required to protect the people named in it. The AVO can be dismissed by the magistrate or withdrawn by the prosecution.

Can You Apply to Change the Conditions on an AVO?

Yes, but only If there is a change of circumstances, an application to the Local Court or the police can be made to have the Order changed or cancelled. Police can only apply to change or cancel an Order if children are named on it.

The ‘person in need of protection’ (PINOP) cannot make a decision to stop or withdraw and AVO, when the application for an AVO is made by the police.

Commonly, AVO’s last for periods of between 6 months to two years. In certain situations it can be in force until it is considered to be necessary.

Property Recovery Orders

If personal property has been left with the defendant, or the defendant has left personal property with the PINOP, you can get them returned through the court Property Recover Order. The order can only be made at the same time that a Provisional, Interim or Final AVO is made.