False AVO Claims in NSW
Domestic violence is an offence that must be taken seriously and penalised. Unfortunately, false allegations and fabricated claims made by alleged victims lead to the dismissal of charges and dropped restraining orders.
However, there are many cases where innocent people are being unjustly punished and subjected to provisional and final AVO orders which stem from false accusation made by family members.
A false AVO (Apprehended Violence Order) allegation is when someone deliberately presents false, malicious or invented allegations against another person in order to acquire the advantages associated with an AVO. This type of claim can be made for a variety of motives, such as retribution, damaging a person’s reputation, attaining a financial advantage or attempting to gain custody of children. Since AVOs largely address domestic violence issues, it is likely that the police may make a wrong decision while trying to be cautious.
What is an Apprehended Violence Order?
An AVO prohibits another person from engaging in certain behaviours. The law that covers this is the Crimes (Domestic and Personal Violence) Act 2007 (NSW). An AVO application is usually dealt with in the Local Court of NSW.
Every AVO will have conditions that the person does not assault, molest, threaten, harass, intimidate or stalk you. In addition, the court may make other orders appropriate to your circumstances. For example, the violent person must not approach the protected person or your work. In NSW, there are two types of AVOs being ADVO and APVO. An ADVO is an Apprehended Domestic Violence Order and can be obtained when there is a domestic relationship between the parties. The definition of a domestic relationship is contained in section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It states;
A person has a “domestic relationship” with another person if the person–
(a) is or has been married to the other person, or
(b) is or has been a de facto partner of that other person, or
(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) is living or has lived in the same household as the other person, or
(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987 ), or
(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or
(g) is or has been a relative of the other person, or
(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.
An APVO is an Apprehended Personal Violence Order and can be obtained when there is no domestic relationship between the parties.
False AVO Claim Legislation
Under section 314 of the Crimes Act 1900 (NSW);
A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that the other person is innocent of the offence, is liable to imprisonment for 7 years.
To be guilty of this offence, the crown must prove beyond reasonable doubt that the AVO applicant and victim:
- Made an accusation against another person;
- Intended for that person to be investigated;
- Knew accusation was false; and
- Knew the accused person was innocent.
As you can tell, this is extremely difficult to prove unless there is objective evidence which exists to the contrary, for example CCTV footage. In addition, sentencing data from the Judicial Commission of NSW indicates the gravity of the crime of making a false accusation, with nearly half of offenders receiving a custodial sentence, and the rest being handed down intensive correction orders, community correction orders or good behaviour bonds.
Is an AVO a Criminal Record?
An Provisional AVO and Final AVO order is Not a criminal record. However, if you are charged with breaching your avo and are ultimately convicted, this is a criminal record and a criminal offence.
The penalties for an AVO breach can be serious, especially if it involves acts of violence. Section 14 of the act stipulates the penalties for breach of an ADVO. A breach is regarded as non-compliance, attempt to or contravention of the conditions of an ADVO or ADPO. Breaching AVO attracts the maximum penalty imposed by the court is; 2 years imprisonment or a fine of 50 penalty units or both.
If you believe you are a person who has been subject to false allegations and false claims leading to an AVO application against you, you should contact a criminal defence lawyer at Lyons Law Group.
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