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In NSW the law states that a police officer must make an application for an AVO if a domestic violence offence has recently been or is being committed, or is imminent, or is likely. In November 2008 the Police published a domestic and family violence policy. It includes the following statements:
"The NSW Police Force will use a proactive approach in dealing with offenders. This approach requires police to not only respond to incidents of domestic and family violence and give strongest consideration to arrest, but to develop strategies to reduce the negative behaviour of offenders who have had AVO applications consistently withdrawn."
"The NSW Police Force is committed to using all lawful means to policing domestic and family violence. This includes wherever possible, removing offenders from the victim, taking out an AVO on behalf of victims and any children living or spending time with the victim (whether they are by consent or not), investigating breaches of AVOs, and developing solutions to managing repeat offenders."
The police policy for more than a decade has been to actively arrest alleged offenders of domestic violence despite the wishes of the alleged victim. The police domestic and family violence policy says: "The NSW Police Force encourages police to give the strongest consideration to arrest offenders of domestic and family violence. The safety, protection and wellbeing of victims are of paramount concern to police."
"The NSW Police Force enforces a pro prosecution response to the investigation and management of domestic and family violence. Charges will be laid against offenders where evidence exists to support criminal charges."
You will not get a criminal record if the court makes an AVO. However, if you breach the AVO you may be charged with a criminal offence. The maximum penalty for breaching an order is a fine of $5,500 and a prison sentence for 2 years. Unless the court otherwise orders, a person who is convicted of breaching an AVO must be sentenced to prison if breach was an act of violence against a person.
Although you will not get a criminal record, you should be aware of the consequences of having an AVO against you. They include:
Although all AVOs work in the same way, they are divided into two categories:
The ADVO can state that you may not approach the children. If a Parenting Order or Injunction is in place allowing you to contact your children, the ADVO will be made accordingly. However, if the children's safety is threatened, courts have the power to amend the Parenting Order to ensure their safety. Note as well that the courts have the power to vary an AVO.
An AVO lasts a specified period of time, e.g. two or three years. This depends on what the magistrate considers necessary to protect the person in need of protection.
Before that period ends, it is possible for the protected person to apply for an extension of the AVO, as long as he or she still has a reasonable fear of the defendant.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.