Apprehended Domestic and Personal Violence Orders (ADVOs & APVOs)

There are two types of Apprehended Violence Orders (AVO) that can be applied for: Apprehended Domestic Violence Orders (ADVO) and Apprehended Personal Violence Orders (APVO). The difference between the two lies in the relationship between the defendant and the person in need of protection. The fundamental basis for an AVO and the matters to be considered when making an Order remain the same. 

The most common form of Order, being an ADVO is in the context of a domestic relationship. Despite an AVO not being a criminal charge or conviction, breaching an Apprehended Violence Order (AVO) warrants criminal sanctions. Even if an Order is not breached, the existence of a Final Order can have additional consequences for some people. It is important to know where you stand.

There can be far reaching ramifications when an AVO is in place and it is important to seek the assistance of an experienced solicitor if ever served with an Application. Our Domestic Violence Lawyers are experts at defending AVOs and criminal charges that often accompany them.

Apprehended Domestic Violence Order (ADVO)

According to the legislation, a Court may make an Apprehended Domestic Violence Order (ADVO) if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:

(a) the commission by the other person of a personal violence offence against the person, or

(b) the engagement of the other person in conduct in which the other person:

(i) intimidates the person or a person with whom the person has a domestic relationship, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

Apprehended Personal Violence Order (APVO)

According to the legislation, a Court may make an Apprehended Personal Violence Order (APVO) if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears:

(a) the commission by the other person of a personal violence offence against the person, or

(b) the engagement of the other person in conduct in which the other person:

(i) intimidates the person, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

Commentary

AVOs are usually applied for when there is an allegation made that certain acts have already been committed and, based on that behaviour, it is anticipated (apprehended) that such behaviour will continue or reoccur. It is usually the police that make the Application on behalf of the protected person(s), however, someone can also make a "private" Application on their own behalf.

It is important to note that one difference between the grounds for an ADVO and an APVO is that in the case of an ADVO, there is a key, additional ground where it is feared that the defendant may engage in conduct that intimidates a person with whom the other person has a domestic relationship. A clear example would be a complaint that it is feared that an ex-partner will try to intimidate the current partner of the protected person.

Even where it can be proved that certain conduct already engaged in may amount to intimidation or stalking, for example, the Court still needs to be satisfied (but for certain exceptions) that the person genuinely fears the future commission of a personal violence offence, or some form of intimidation being committed against them and further, that those fears are reasonably held. 

The Court therefore has to find that it is more probable than not that the above will occur. For that reason, notwithstanding that there may, at the time the complaint is made, have been conduct that caused a person to make a complaint or apply for an AVO, in certain cases, it can be argued that with the passage of time and a change in circumstances, it is not probable that the defendant will engage in the conduct in the future.

What is also important to remember is that the decision to grant an AVO is still discretionary. The legislation clearly states that a Court may make an Order if certain preconditions are met, not that the Order must be made. This is another reason that defendants should strongly consider opposing an Application for an AVO against them, as the circumstances may be such that it could be argued with the Court that an AVO should not be granted.

The Options

When faced with an Application for an AVO a person has several options: to oppose the Application and the Orders sought; accept the Orders; attempt to negotiate the conditions sought and then accept the Order; or accept an Order being made and arguing over the conditions before a Court.  

Should I accept an AVO?

In accepting a Final AVO, a defendant can do so on a "without admissions" basis. That means that the AVO has been accepted, but no admissions have been made in relation to any allegations contained in the Application and further, no admission of any wrong doing is made. For some people, this may be a desirable outcome (for example, where the allegations are likely to be proved and/or an AVO is likely to be granted even if the matter proceeds to a hearing); however, for others, accepting a Final AVO may of itself have detrimental consequences.

For example, if someone is subjected to an AVO, consequences may be that they will not be able to obtain or retain a firearms licence; will not be able to obtain or retain a security licence; may not be able to pass "working with children" checks; or may not be able to work as a Registrar of a hospital. Of course, where allegations are falsely made and the AVO is being used as a "weapon", particularly in the context of a child custody dispute, there is the danger that further false allegations will be made once the AVO is in place, which would mean the defendant later is charged with the serious offence of breaching the AVO.

If you have been served with an Application for an Apprehended Violence Order (AVO), our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a lawyer at your nearest Prime Lawyers office.

Contravene AVO

Although being subjected to an Apprehended Violence Order (AVO) is not a criminal offence or criminal conviction, being charged with "contravene AVO" is considered serious and the penalties can be severe. When someone accepts a Final AVO (or an AVO is made against them) they need to be aware that strict adherence to the conditions is important, at all times. The police take a very hard-lined approach to allegations of AVO breaches and the penalties imposed by the Courts reflect the seriousness of the offence.

The Law

Pursuant to section 14 of the Crimes (Domestic and Personal Violence) Act, if a person knowingly contravenes any condition of an Apprehended Violence Order (AVO), then they are guilty of an offence.

Penalties

The maximum penalty for breaching or contravening an AVO is 2 years' imprisonment and/or a $5,500 fine.

Commentary

The most common breaches of Apprehended Violence Orders occur with Domestic AVOs. Any breach of a condition, no matter how slight, will be enough to be charged with the offence. Therefore, if a condition of the AVO does not allow the defendant to contact the person in need of protection (PINOP) by any means, calling out "hello" to the PINOP in the street or sending a text message irrespective of the content of the message or the intention behind it, will be enough to breach a condition and therefore, contravene the AVO. In fact, even making contact through a third party is enough to breach the condition.

Although there are different levels of offending conduct when an AVO is contravened, the law states that if the contravention is by way of an act of violence, (such as any assault offence), then the offender must be sentenced to a term of imprisonment, unless the Court otherwise orders. This essentially means that the starting point for a contravention by an act of violence is imprisonment. 

The most common forms of contraventions are usually by harassment or, where there is a "not to contact" condition, by simple means of contact. It must be remembered that even if the contact is invited by the PINOP and then contact is in fact made, then the person is in breach of the condition and in contravention of the AVO and can (and almost always will be) charged with an offence (should it be brought to the attention of police).  All too often we see defendants being set up by ex-partners to breach "no contact" conditions. Although AVOs are supposed to be a "shield" to those who genuinely rely on them for protection, they are unfortunately too often abused and used as "weapons".