What Effect Will an AVO Have On My Future?
An Apprehended Violence Order (AVO) is not a criminal charge and if the court makes an AVO against you this does not mean that have a criminal record. However, an AVO can have some serious consequences.
The consequences of having an AVO made against you include:
- If you have firearms, you must give them to the police. Your firearms licence or firearms permit is automatically suspended by a provisional or interim order and revoked by a final order. You cannot obtain a new firearms licence for 10 years after the order has finished. However, the Magistrates Court may, on application when the final order is made, order that the firearms licence not be cancelled if the final order is a personal protection order (as opposed to a Domestic Violence Order) and, according to the Act, “the court is satisfied that the firearms licence should not be cancelled”. The Magistrates Court may make a consent order that the firearms licence not be cancelled only if the final order is a personal protection order. The Court may order the seizure of the firearms licence and the seizure of any firearm or ammunition in the respondent’s possession.
- The police will record the fact that an AVO was made against you on a database.
- An order may affect your ability to work as a security officer or a police officer.
- If the AVO includes orders for children, the relevant child authorities may be advised. An AVO may also affect your ability to work with children.
If you breach an AVO you can be charged with the criminal offence of contravene AVO. The maximum penalty for contravening an AVO is a fine of up to 500 penalty units and a prison sentence of up to 5 years.
Do I Need a Lawyer?
If you want to consent to the making of an AVO or don’t care if one is made, there may be no real advantage in having a lawyer appear for you, although they can take the fear out of the court appearance for you.
If you are disagreeing with the making of an AVO, we recommend that you use a lawyer who specialises in criminal law and has experience in running hearings in the Magistrates Court in domestic-violence matters. You really need a lawyer who is good at cross examination.
Undertakings and Representations
Unlike NSW, where the police are the applicants for AVOs on behalf of protected people, orders in the ACT are generally sought by one citizen against another.
Similarly, the two parties can agree to enter undertakings, in the same terms as proposed orders.
An order is an order of the court. A breach of an order is a criminal offence and you should expect to be arrested if a substantial breach of an order is alleged. A breach can involve no violence at all, and is often caused by a respondent simply making contact with a protected person.
An undertaking is a promise to the court. It is generally a promise to do all the things listed in an order, but it does not have the effect of an order. A breach of an undertaking cannot of itself lead to a criminal charge, but the action that caused the breach could, depending on the circumstances, be the subject of a separate criminal charge.
It is always open to a respondent to approach an aggrieved person (or their solicitor if they are represented) and make representations about the orders sought. These representations might seek the withdrawal of the application, the modification of the orders sought (which might then be consented to) or they might propose that the applicant and respondent enter into undertakings in preference to an order.
What Conditions Can the Court Impose?
The Domestic Violence and Protection Orders Act 2008 allows the Magistrates Court to make an order containing any “conditions or prohibitions” that the court considers “necessary or desirable”.
Without limiting what the court can do, the Act says orders may include one or more of the following conditions:
- Prohibit the respondent from being on premises where the aggrieved person lives.
- Prohibit the respondent from being on premises where the aggrieved person works.
- Prohibit the respondent from being on premises where the aggrieved person is likely to be.
- Prohibit the respondent from being in a particular place.
- Prohibit the respondent from being within a particular distance from the aggrieved person.
- Prohibit the respondent from contacting, harassing, threatening or intimidating the aggrieved person.
- Prohibit the respondent from damaging the aggrieved person’s property.
- Prohibit the respondent from doing anything mentioned above in relation to
- a child of the aggrieved person; or
- any other child if the Magistrates Court is satisfied that there is an unacceptable risk of the child being exposed to domestic violence.
- Prohibit the respondent from causing someone else to do something mentioned above.
- State the conditions on which the respondent may
- be on particular premises; or
- be in a particular place; or
- approach or contact a particular person.
Some orders can also prohibit the respondent from taking possession of particular personal property that is reasonably needed by the aggrieved person or a child of the aggrieved person.
They can require the respondent to give the aggrieved person particular personal property that is in the respondent’s possession and is reasonably needed by the aggrieved person or a child of the aggrieved person.
Interim and Final Orders
Interim orders are sought by individuals, known under the legislation as “aggrieved persons”, who approach the court and make an application.
This application is decided ex parte, meaning that a registrar of the court considers the application without hearing anything from the nominated respondent.
Generally, the first a respondent knows of the presence of an order against him or her is when he or she is formally served with a copy of the order.
The standard of proof used to decide protection order applications is the “balance of probabilities” (known as the civil standard), which is a much lower threshold than the criminal standard which is “beyond reasonable doubt”.
When an interim order has been made, the court sets a date for a “return conference”, which is the first chance a respondent has to contest the order. The time between the making of an interim order and that conference can be up to 16 weeks.
At the return conference, which is conducted by a registrar on a “shuttle” basis with the parties kept separate, the respondent can take a number of options:
- consent to the orders as proposed;
- consent to the orders as amended;
- agree to undertakings;
- continue to disagree with the orders sought.
In the latter case, the matter will be set for a further conference, but will be placed also in a protection order list on the same day. This means that if the matter does not resolve at conference it will go to a full hearing before a magistrate.
An interim order can only be granted if there is an application on foot for a final order. Final orders are generally sought for either 12 or 24 months.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.