Why an AVO?

• The relevant legislation is: Crimes (Domestic and Personal Violence) Act 2007.
• Apprehended Domestic Violence Orders (“AVO”)

When police attend after a report of domestic violence, they will usually be required to take legal action. Legal action can be in the form of charges and an application for an AVO, or an application for an AVO.

What is the purpose of an AVO?

When the court makes an AVO it assumes that the making of the order will protect the person or persons named as being in need of protection.

Superficially, an AVO can protect a person if there is, in fact, a risk posed to a person, and the person who poses the risk to them is law-abiding and diligently complies with the order. In reality, an AVO provides little to no direct protection to anyone at serious risk of harm.

Importantly, the Courts are required to give significant weight to the simplicity, speed and expense when exercising authority under the Crimes (Domestic and Personal Violence) Act 2007.

Case Study - Condition 1

Consider condition 1. Condition 1 is a mandatory condition for all AVOs. It prohibits a defendant from assaulting, harassing, stalking or damaging the property of a person named as being in need of protection.

Each of the prohibitions contained in Condition 1 is a criminal offence carrying a penalty of between 2 and 5 years’ jail. Condition 1 doesn’t prohibit murder, sexual assault, robbery, aggravated break and enter, etc. What then is the purpose of selectively criminalising conduct that is already a criminal offence?

From a logical point of view, condition 1 provides no direct protection to anyone who needs it. If a defendant doesn’t already know that it is wrong and unlawful to assault someone, an order stating they are prohibited from assaulting someone is unlikely to achieve the desired outcome.

The simple answer has its foundation in policy rather than law. People with AVOs against their name are profiled by the court and police as domestic violence offenders. As a domestic violence offender, they are more likely to be charged and jailed than someone who is not.

The Courts and Police do not distinguish meaningfully between an AVO made with your consent without admissions, and one that is made after a determination of the merits of the application.

Case Study - Firearms Licence

When police file and serve an application for AVO, there is an enforceable Provisional AVO. When the Provisional AVO is first before the court, the court is typically required to make the provisional AVO, an interim AVO which is an order of the Court. The court only has limited jurisdiction over a provisional AVO, and it is often important that it be made into an interim AVO. The next step will usually be to make a final AVO or dismiss the application.

When the court makes an interim AVO, section 22 of the Firearms Act 1996 operates to automatically suspend any firearms license held by the defendant. If the interim AVO is made into a final AVO, the defendant is prohibited from holding a firearms license for 10 years. There is no appeal process.

Whether or not you agree with people owning firearms, the idea that an entitlement available to all other people could be denied for a period of 10 years, without a determination on the merits or an appeals process, is outrageous.

The broad and negative impacts of AVOs are rapidly expanding with the changes to mandatory reporting and working with children's checks. Again, this is an overlap between law and policy.

Before agreeing to an AVO, you must carefully consider what impact the AVO may have on your lifestyle, capacity to work and your future employment prospects. There may be many unforseen consequences.

Preventative Detention

In many cases, it is arguable that AVOs operate to protect people by way of preventative detention. That is, a defendant may not have committed a criminal offence by way of causing any harm to anyone or doing anything objectively wrong, but go to jail simply because they breached a condition of the AVO.

Obviously, when a person is serving time in jail on remand or serving a sentence, they are less likely to cause harm to the person named as being  a person in need or protection.

Lapsing Order - Pilot Scheme

In the local court, a pilot program commenced that allows the Court, on application of the parties, to avoid the need for a hearing of an AVO application in circumstances where there are no charges and the defendant does not consent to the making of the order.

This pilot scheme allows the court to adjourn the application brought by the police for a period of time, typically six months or more, and, if there are no reported breaches of the order by the police, the application is dismissed.

Fundamentally, this pilot scheme is about saving court time rather than addressing the unnecessary work created by NSW Police policies for making AVO applications.

The existence of the AVO is an ongoing risk that must be mitigated in all circumstances.

Get Legal Advice

The consequences of an AVO can last for a decade or more.

Don't consent to an AVO before you receive legal advice.

Oppose the making of any AVO until you have received the legal advice you need.

Jeremy McGrath - Principal Solicitor