Common Questions about an AVO (NSW)

This page answers some common questions about domestic violence matters:

1 – My partner did not want an AVO, why did the Police take out an AVO against me?

The Crimes (Domestic and Personal Violence) Act 2007 (NSW) prescribes that an application for an AVO must be made if the Police investigating the matter suspects or believes that a domestic violence offence has or is being committed, is imminent, or is likely to be committed. 

There are limited circumstances where the Police do not need to apply for an AVO, being where the complainant is over 16, intends to make their own application for an AVO and there is “good reason” not to make the application. 

The Act goes on to say that the reluctance of the person to have an AVO applied for by Police does not, on its own, constitute a good reason for Police to not apply for an AVO if Police reasonably believe that the person has been the victim of violence, or there is a significant threat of violence to the person, or the person has an intellectual disability and no guardian. 

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but to develop strategies to reduce the negative behaviour of offenders who have had AVO applications consistently withdrawn.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.

Practically, if a person complains of a personal or violence offence to Police, even if they do not want an AVO taken out against their partner, Police will usually always take out an AVO for that person’s protection. 

2 – My partner did not want me to be charged, why did the Police charge me?

The NSW Police Force is required to act in the public interest and charge people who are suspected of having committed an offence. The Police policy is to charge alleged offenders of domestic violence where they have evidence that a domestic violence offence has occurred. This includes  where an alleged victim has provided a DVEC (Domestic Violence Evidence in Chief), a written statement, or even a verbal account of a crime to police. In these circumstances, Police will often bring charges against the alleged defendant. This often happens based on the allegation of the victim alone and does not need to be corroborated by an admission, photographs, an eyewitness or other evidence. That being said, the absence of these things may make successfully defending the matter more likely.

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.”

3 – If my partner wants the AVO withdrawn, will the AVO be withdrawn?

Not necessarily. Once an AVO is applied for by Police the application is listed at a Local Court before a Magistrate. A Police Prosecutor will take carriage of the AVO as it makes its way through the Courts. While the Police should take the views of the protected person about the AVO into account, the Police Prosecutor /Domestic Violence Liaison Officer (“DVLO”) will have final say about the AVO application. 

4 – Me and my partner have reconciled our relationship, can we have the AVO changed or removed?

Yes, you can apply to the Court to have an interim or final AVO varied (changed) or revoked (removed). The legislation says that the Court may vary or revoke a final or interim AVO if satisfied in all the circumstances that it is proper to do so; however the Court may decline to hear the application to change or remove the AVO if there has been no change in circumstances since the making of the order. 

If the AVO also includes children as well as a person’s partner, then the person applying to have the AVO varied or revoked requires “leave” (permission) of the Court to do so. The applying party must satisfy the Court that there has been a significant change of circumstances since the order was last made and/or that it is in the interests of justice to do so. The court is not to grant leave (permission) if it is of the opinion that the change in the AVO would significantly increase risk of harm to the child. 

5 – What is the difference between an ADVO and an APVO?

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. 

6 – What happens if the person in need of protection does not attend Court?

If the AVO is a private AVO and the applicant / person in need of protection does not attend Court, the defendant can seek that the AVO is dismissed. 

If the AVO is a Police initiated AVO and the person in need of protection does not attend Court, the Police can still proceed with the application and seek the Court make the order. If the person in need of protection has provided a Domestic Violence Evidence in Chief (DVEC) or filed written statements in support of the AVO, the Police can rely on this material on behalf of the applicant and seek the Court make a final order. 

7 – What happens if the defendant does not attend Court?

If the defendant does not attend Court for the AVO the Court has the power to make a final AVO in the defendant’s absence. The AVO will take effect as soon as a copy has been served on the defendant. 

8 – Will I get a Criminal Record for an AVO?

An AVO is not a criminal matter. The consenting to or making of a final order of an AVO is not a criminal offence and will not result in a criminal conviction being recorded. However, the fact that an AVO order has been made will appear on the Court Record and will be available in Police databases. 

It is a criminal offence to contravene / breach any condition of an AVO. If a person pleads guilty or is found guilty of breaching / contravening an AVO it may result in a conviction being recorded on their criminal record. For more information about the offences of breaching / contravening AVOs, please see our related articles:

• Contravene (breach) AVO, 
• Contravene (breach) AVO with intent to cause harm or fear, 
• Contravene (breach) AVO on 3 occasions in a 28 day period – “Persistent Breach AVO”.  

9 – What effect will an AVO have on my future?

Although you will not get a criminal record, you should be aware of the consequences of having an AVO made against you. They include:

• Any firearms you have must be surrendered to the Police. Your firearms licence or permit is automatically suspended by an interim AVO and revoked by a final AVO.
• You cannot get a new firearms licence until 10 years after the AVO has ended.
• The fact that an AVO was made against you will be kept on a Police database.
• An AVO can also affect your licence to work as a security officer, a Police officer or other specific jobs, even though you do not get a criminal record.
• If the AVO includes children, the Commission for Children and Young People may be notified. An AVO may affect your ability to hold a job which involves contact with children.

10 – What effect will an AVO have on my children?

If your child/children are listed as ‘persons in need of protection’ on the ADVO, then the AVO applies to the protection of those children as well as the complainant. If a person is wanting to remove children listed on an AVO, they require leave of the Court to do so and to establish 

If the AVO also includes children, then the person applying to have the AVO varied or revoked requires “leave” (permission) of the Court to do so. The applying party must satisfy the Court that there has been a significant change of circumstances since the order was last made and/or that it is in the interests of justice to do so. The Court is not to grant leave (permission) if it is of the opinion that the change in the AVO would significantly increase risk of harm to the child. 

11 – Do I need a lawyer to represent me at Court?

It is not a requirement that a person has a lawyer acting for you at Court, however, due to the impacts and consequences of having an AVO taken out against you, it is best to get legal advice and have a lawyer assist with the AVO. 

12 – How long does an AVO last?

An AVO will last for the period of time that is sought by the Police / the Applicant, unless a different period is negotiated and agreed between the parties, or if the Magistrate considers a different period of time is required to provide adequate protection to the complainant. 

The usual period of time sought for an AVO by Police is a period of 2 years. 

When an AVO is taken out and served on the defendant, it is in effect immediately. Where the AVO is contested or follows along with a criminal matter, the Court will put in place an interim AVO which has the same effect as a final order and will continue until the final hearing. If the Court decides to grant a final AVO then the AVO will commence and last for the duration sought by Police or the Applicant. 

13 – I brought a private AVO, do I need to pay the defendant’s costs if I lose the application?

Possibly yes, private AVOs are a ‘costs jurisdiction’. This means that the losing party may be liable to pay the costs of the winning party. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.