Police Applications for Apprehended Violence Orders
When Police charge a person with personal or domestic violence, an AVO is almost always taken out for the protection of the complainant. Police can also seek an AVO for the protection of the complainant without filing charges. Where the Police apply for an AVO on a person’s behalf, these are known as “Police AVOs”.
There are two types of AVOs that Police can apply for which vary depending on the relationship between the defendant and the person seeking protection:
- Apprehended Domestic Violence Orders (ADVOs): This order offers protection to a person with whom they share a “domestic relationship” with, such as a spouse, de facto partner, ex-partner, family member, carer or person living in the same household.
- Apprehended Personal Violence Orders (APVOs): This order protects a person from violence, threats and harassment from any person that they are not in a domestic or family relationship with, and have never been in a relationship with. This commonly includes disputes between neighbours, employees/colleagues or friends.
Police AVOs and Related Criminal Charges:
The AVO is a separate matter to the criminal charges and will follow along with the criminal proceeding as it progresses through the Court system.
Where a person pleads guilty to or is found guilty of a serious offence (including domestic violence offences) the legislation requires that the Court makes a “final order AVO” for the protection of the victim. The final AVO will be on the conditions and duration sought by the Police.
Where a person is found not guilty of a criminal offence, the AVO is not automatically dismissed. The Court still needs to consider whether the complainant on the balance of probabilities has reasonable grounds to fear and in fact fears the commission of a domestic violence offence, with that conduct being sufficient to warrant the making of the AVO. If the Court finds these elements to be proven on the balance of probabilities, the Court will grant a final AVO protecting the complainant even though the criminal charges have been dismissed.
Police AVOs with No Related Criminal Charges:
Police can take out an AVO even if they do not bring criminal charges against that person. With stand-alone Police AVOs, the defendant has the option to:
- Consent to the AVO without making admissions to the conduct described in the grounds of the AVO, or
- Consent to the AVO and admit to the conduct described in the grounds of the AVO, or
- Contest (dispute) the AVO.
If the AVO is consented to, either with or without admissions, a “Final Order” will be made on the conditions and duration sought by Police.
If the AVO is contested, the Court will impose a timetable for the filing and service of written statements that will be used as the evidence in the hearing. The Court will consider whether the complainant, on the balance of probabilities, has reasonable grounds to fear and in fact fears the commission of a domestic or personal violence offence, with that conduct being sufficient to warrant the making of the AVO. If the Court finds these elements to be proven on the balance of probabilities, the Court will grant a final AVO.
If you require legal advice about Apprehended Violence Orders or any other legal matter, please contact Armstrong Legal.
This article was written by Sophie Ogborne
Sophie Ogborne has a Bachelor of Laws from University of Wollongong and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in New South Wales in 2020. Sophie has experience in criminal law, civil law, family law and in the criminal and equity divisions of the Supreme Court. Sophie now practices exclusively in...
