Guide to Defending AVO Proceedings In NSW
An ‘AVO’ is an abbreviation for ‘Apprehended Violence Order.’ If an AVO is served on you, you will be required to appear in Court and should obtain legal advice. You may receive advice to defend the proceedings against you. If so, this guide will assist in your preparation for defending those proceedings.
Court Procedure for AVO
AVO proceedings are considered civil proceedings in Court, not criminal proceedings. Accordingly, defended AVO proceedings usually follow the below procedure.
First Court date (First Mention)
At the first Court date, if you are defending the avo proceedings against you, the Court will set a timetable. After that, the Court will order a timetable for the parties to complete before the case is set for a hearing.
An example of the timetable set down by the Court could be;
- The “applicant” or “protected person” named in the AVO is to provide written statement(s) intended to be used as evidence in 2 weeks;
- the defendant named in the AVO is to provide written statement(s) in reply (intended to be used as evidence) in 4 weeks; and
- The case will be adjourned for 5 weeks to a second or subsequent court date for a ‘compliance check’ for the Court to be updated on whether parties have complied with these orders.
There is usually a provisional AVO or interim AVO that Police impose when they make an application for an AVO. You can choose whether to oppose the provisional or interim AVO on the first court date. Depending on the gravity of the allegations against you, the Magistrate will usually make an interim or provision AVO. You should seek legal advice if you wish to oppose making an interim order. An interim AVO is a temporary AVO that is enforceable while the Court case is ongoing.
Second Court date (Compliance Check)
The second Court date is known as a compliance check. On this date, the Court will ask the parties if everyone has complied with the Court’s orders. If the evidence has been If a defendant has consented to an AVO in Court, yet later wishes to appeal that AVO, then the District Court’s permission will first be required in order to be allowed to appeal. served and both parties are ready to proceed, the Court will give a hearing date.
Final Court Date (Hearing)
At the hearing, the Court will read any statements that have been filed and consider the evidence that the parties present.
The procedure for hearing is that the applicant will first give evidence in chief against you. After completing this, you will have the opportunity to cross-examine that witness by asking them questions. However, from 1 September 2021, in domestic violence criminal matters or related apprehended violence order proceedings where a lawyer does not represent you, you are not allowed to ask the applicant questions about their evidence in Court directly. In this situation, the Court will appoint a suitable person to ask the questions on your behalf. Court-appointed questioners are court staff.
Once the applicant has presented all their evidence, you will have the opportunity to call or give evidence in your defense. Usually, this may be you giving evidence in chief and then the applicant cross-examining you.
Rules of evidence apply in the above proceedings. Generally, you or the applicant are not allowed to ‘surprise’ each other with evidence not filed with the Court before the compliance check. Defending AVO proceedings can be complicated, and it is a good idea to seek advice from criminal defense lawyers.
What The Applicant Must Prove Against You
For a final AVO to be made against you, Section 16 of the Act sets out the factors that must be proved on the balance of probabilities. This section states;
(1) A court may, on application, make an apprehended domestic violence order 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 domestic 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.
If you have been found guilty of associated criminal charges such as common assault, an AVO order will be made automatically. However, the AVO will be dismissed if the applicant is unable to prove that:
(a) he or she fears that you will engage in certain types of conduct towards the PINOP, such as assault, molestation, harassment, threats or other types of prohibited conduct; and
(b) that their fears are warranted in all of the circumstances.
If an AVO order is made against me, Can I appeal?
Yes, you can appeal to the District Court of NSW. However, it is different if you have consented to an AVO in Court and wish to appeal that AVO. You are required the District Court’s permission before you are allowed to appeal.
