Private Applications for Apprehended Violence Orders

Apprehended Violence Orders (both ADVOs and APVOs) are orders made by the Court that restrict a person from engaging in certain conduct (such as contacting or residing with a person or destroying property belonging to a person) as a way of preventing a protected person from experiencing domestic or personal violence. AVOs can be taken out by either Police or private individuals in their personal capacity. Where a person takes out an AVO on their behalf, these are known as “Private AVOs”

Types of Private AVOs:

There are two types of private AVOs that can be applied for, which vary depending on the relationship between the person seeking protection and the defendant (person whom the AVO is being taken out against):

• 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. 

With Apprehended Personal Violence Orders (APVOs), the legislation encourages the parties to participate in a mediation to determine if the issues between the parties can be resolved without the need for the Court to be involved. Often, the Court will refer the matter to mediation on the first listing date unless there are good reasons not to do so (such as allegations of violence or harassment).  If the parties mediation is unsuccessful or the defendant continues to contest the AVO, the Court will apply the below procedure as per the Practice Note. 

Options in Responding to Private AVOs:

In response to a person taking out a private AVO, the defendant has the option to either:

1. Consent to the AVO without making admissions to the conduct described in the grounds of the AVO, or
2. Consent to the AVO and admit to the conduct described in the grounds of the AVO, or
3. 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 the Applicant. 

If the AVO is contested, the Court will follow the procedure in the Practice Note where: 

1. A timetable will be set for the filing and service of evidence.
2. The usual timetable is for the applicant to file material in support of the AVO on the defendant within 4 weeks from the first mention date at Court, 
3. The defendant will usually have 4 weeks to review and file material in response to the applicant’s material, 
4. The Court will list the matter for a “compliance check” mention to confirm the material has been filed and whether the matter is ready to proceed to hearing. 
5. Once confirmed, the Court will list the AVO matter for a hearing. 

The “Test” To Determine Whether an AVO Should be Granted:

The legislation requires the Magistrate to consider whether, on the balance of probabilities, the applicant:

1. Has reasonable grounds to fear, and 
2. In fact fears, 
3. The commission of:
   1. A domestic/personal violence offence, or
   2. An offence under Section 5 or 6 Conversion Practices Ban 2024, or
   3. The engagement of the other person in conduct in which intimidates or stalks the person. 
4. With such conduct being sufficient to warrant the making of the AVO. 

If the Magistrate is satisfied of all the above factors to the standard of the balance of probabilities, then the Court will grant a final order of the AVO. 

Private AVOs are a Costs Jurisdiction:

AVOs are not criminal matters but are within the civil jurisdiction of the Local Court. This means that private AVOs operate in a “costs jurisdiction” where the losing party may be liable to pay for the winning party’s costs. It is incredibly important that you get advice from a lawyer because of this risk. 

If you require legal advice about Apprehended Violence Orders or any other legal matter, please contact Armstrong Legal.