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Applying for an AVO in New South Wales
An Apprehended Violence Order or AVO in New South Wales is a Court order made under the Crimes (Domestic and Personal Violence) Act 2007 to protect you from violence, intimidation or harassment in the future.
An AVO in New South Wales is called an Apprehended Domestic Violence Order (ADVO) if you and the person against whom you are seeking the order have been or are in a domestic relationship. This means:
- being married or in a de facto relationship
- living at the same premises (including in a residential care facility)
- being in an intimate relationship
- being related (including as kin or extended family if you are an Aboriginal or Torres Strait Islander person).
Otherwise, the AVO is called an Apprehended Personal Violence Order (APVO). In an APVO the court will order you and the defendant to go to mediation unless there is good reason not to.
Applying for an AVO in New South Wales
An application for an AVO in New South Wales can be made for you by the police or by you personally at your local court. If you are under 16 then only the police can apply for your AVO.
The person applying for the order (either you or the police) is called the applicant and the person to be protected is called the protected person. The person from whom you need protection is called the defendant. If you need protection from more than one person you will need to make a separate application for each.
The police will apply for the order on your behalf if:
- you have been or are likely to be a victim of a domestic violence offence
- you are being stalked or intimidated with the intent to cause you to fear physical or mental harm
- a child is or is likely to be the victim of an offence.
Coming to court
When an application for an AVO in New South Wales first comes before the Court, if the defendant doesn’t agree to the order being made, the matter is adjourned for hearing.
You and the defendant may be told to provide written witness statements. If you don’t, you may be allowed more time to file them or the court might dismiss your application. If the defendant doesn’t provide a statement, they may not be allowed to give evidence at the hearing. If both of you file your statements the matter will be given a hearing date.
If you don’t attend for the hearing your application may be dismissed. If the defendant doesn’t attend, the AVO may be made in their absence.
The Police Prosecutor will represent you in court if they applied for the AVO on your behalf. If you applied yourself, you can represent yourself or you can get a lawyer. The Domestic Violence Practitioner Scheme is available at some courts to advise and represent you at no cost.
At the hearing
At the hearing the applicant gives evidence first and then the defendant. The defendant or their solicitor will be able to ask you and your witnesses any questions about your evidence. You, your lawyer or the Police Prosecutor will then be able to ask them and their witnesses any questions about their evidence.
Sometimes the court will order the unsuccessful person to pay the other person’s costs. In Domestic Violence matters this can only happen if the court decides that your application was not serious or was intended to cause unnecessary trouble.
It is an offence to make a false or misleading statement when applying for an order. Before making your statement, or making any changes to it, you should get legal advice.
If you need an AVO in New South Wales urgently, the Court can make an interim AVO to protect you until the hearing. If you have applied through police, a senior police officer can also make a Provisional AVO to protect you until the hearing. Where someone is charged with certain serious offences the court must make an interim order for your protection whether or not an application has been made.
Final orders can be made if:
- the defendant was served with the application but didn’t come to court and has no good reason for failing to attend
- the defendant agrees – they can agree without admitting that they have done anything wrong, or
- after hearing the evidence the magistrate accepts that there are reasonable fears for your safety. A fear is reasonable if a person in your situation would likely feel that way.
Every AVO in New South Wales prohibits the defendant from assaulting, threatening, harassing, stalking, or intimidating you. Other orders can include staying away from your home, work and other places you go, not contacting you and not damaging your property.
After an AVO is made
Once you have received an AVO in New South Wales, whether it is an Interim, Provisional, or Final AVO, a Property Recovery Order can be made. It orders the return of property left with you or with the defendant. It can also authorise police to accompany you or the defendant to get property back. Property includes personal papers, clothes, and children’s toys owned by you.
When an AVO is made the defendant doesn’t get a criminal record but a breach of an AVO is a criminal offence. Also, under the Firearms Act 1996, if the defendant has a firearms licence it will be cancelled for 10 years and any firearms seized. If the AVO bans the defendant from living at certain premises the Residential Tenancies Act 2010 allows their name to be removed from the tenancy agreement.
If you want the AVO changed or cancelled you can apply to the Local Court or the police. Only the police can apply to change or cancel an AVO if children are named on it. You can apply for an extension of the AVO before it expires if you still have a reasonable fear of the defendant.
This article reflects the state of the law as at 19 November 2015. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.wpengine.com.