This page is designed to answer most of the questions you may have in relation to an AVO.
- Why did the police take out an AVO?
- Why did the police charge me with assault? My partner did not want me charged?
- Can the charges of assault or the AVO be withdrawn?
- Can the AVO be dismissed if the alleged victim does not go to court?
- What effect will an AVO have on my future?
- Do I need a lawyer?
- What conditions can the court impose?
Why did the police take out an AVO?
In NSW the law makes it clear that police must make an application for an AVO if they suspect or believe that a domestic violence offence (DVO) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made.
The NSW Police have an internal domestic and family violence policy. This policy makes includes the following quote:
“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but to develop strategies to reduce the negative behaviour of offenders who have had AVO applications consistently withdrawn.”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.”
Why did the police charge me with assault?
For over a decade the NSW Police have had a policy to actively arrest alleged offenders of domestic violence despite the wishes of the alleged victim. In November 2008 the NSW Police service published a domestic and family violence policy. The NSW Police have an internal domestic and family violence policy. This policy makes includes the following quote:
“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.”
Can the charges of assault or the AVO be withdrawn?
The answer is yes, but rarely occurs. It is clear that the NSW Police are determined that alleged domestic violence offenders are prosecuted before the courts for their actions. Unfortunately, this often means that most cases continue to court are proceeded with despite the merit of the submissions made by the alleged victim or alleged offender.
The NSW Police service’s domestic and family violence policy also states:
“Offenders of violence will be held accountable and challenged to take responsibility for their actions.”
Can the AVO be dismissed if the alleged victim does not appear at court?
If the alleged victim in a domestic violence case does not appear at court a number of things may occur including:
- The AVO is dismissed.
- A warrant is issued for the arrest of the alleged victim (this is only likely to occur where the victim has been served with a subpoena).
- The matter is adjourned to see if the police can get the alleged victim to attend court on another date.
- The court deals with other matters to give the police a chance to go to the alleged victim’s house or workplace and get them to come to court.
What effect will an AVO have upon my future?
An AVO is not a criminal charge and if the court makes an AVO you wont get a criminal record. However, you and AVO can have some serious consequences. They 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.
- 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 Commission for Children and Young People 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 offence of contravene AVO. The maximum penalty for contravening an AVO is a fine of $5,500 and a prison sentence for 2 years.
Section 14(4) of the Crimes (Domestic and Personal violence) Act states that unless the court otherwise orders, a person who is convicted of an offence of contravening an AVO must be sentenced to a jail term if the offence involved an act of violence against a person.
Do I need a lawyer?
If you want to agree with 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 disagree 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 local court in domestic violence matters. You really need a lawyer who is good at cross examination.
What conditions can the court impose?
Every AVO, must, without exception, include the following mandatory conditions. This applies to AVOs commenced privately as well as AVOs commenced by the Police:-
- An order prohibiting the defendant from assaulting or threatening the protected person or a person with whom the protected person has a domestic relationship;
- An order prohibiting the defendant from stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship; and
- An order prohibiting the defendant from intentionally or recklessly destroying or damaging any property that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.
Other Conditions that can be Imposed
The Crimes (Domestic and Personal Violence) Act 2007 also allows the Court to impose other conditions on the defendant. Additional conditions can be sought by the applicant to the AVO and are imposed at the discretion of the Court: The Act gives the Court the power to impose broad and onerous conditions as part of an AVO. These conditions can include:-
- An order prohibiting or restricting approaches by the defendant to the protected person;
- An order prohibiting or restricting access by the defendant to any or all of the following:-
- any premises occupied by the protected person from time to time or to an specified premises occupied by the protected person;
- any place where the protected person works from time to time or to any specified place of work of the protected person;
- any specified premises or place frequented by the protected person,
whether or not the defendant has a legal or equitable interest in the premises or place.
- An order prohibiting or restricting the defendant from approaching the protected person, or any such premises or place, within 12 hours of consuming intoxicating liquor or illicit drugs;
- An order prohibiting or restricting the defendant from locating or attempting to locate the protected person;
- An order prohibiting or restricting the possession of all or any specified firearms or prohibited weapons by the defendant;
- An order prohibiting the defendant from destroying or deliberately damaging or interfering with the protected person’s property;
- An order prohibiting or restricting specified behaviour by the defendant that might affect the protected person.
WHERE TO NEXT?
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.