Domestic violence is where there is violence between people who’re in a domestic relationship, such as a partner, family, or anyone you live or used to live with.
Domestic violence can occur in a number of different ways. It can be physical or sexual abuse, but it can also be emotional, psychological or economic abuse. Domestic violence can be perpetrated by both men and women.
Types of Domestic Violence Offences include:
- Assault Occasioning Actual Bodily Harm
- Malicious Damage of Property
- Common Assault
- Breach AVO
- Stalk and Intimidate
- Sexual Assault
- Use Carriage Service to Menace, Harass or Offend.
Apprehended violence orders are regulated by the Crimes (Domestic and Personal violence act 2007 (NSW). They are an extremely prevalent part of the criminal justice system and apply in a wide variety of circumstances. There are two types of AVO’s in New South Wales:
- Apprehended Domestic Violence Order (ADVO) – These orders are made when the parties are part of a domestic relationship or have been in the past.
- Apprehended Personal Violence Order (APVO) – These orders exist where the order is needed for the protection of a person in a non-domestic relationship.
DEFENDING AN AVO
I have been served with an AVO, what are my options?
If you are served with an AVO, you should consider speaking to an AVO lawyer, these types of proceedings can have severe impacts for years to come. You may wish to do either:
- Consent to the AVO.
- Oppose the AVO.
CONSENT TO THE AVO:
If you were to consent to the AVO, the court will implement conditions it deems necessary for the protection of the protected person. The conditions which the court imposes vary from case to case. There are various consequences for consenting to an AVO, it is important that you discuss the consequences of this with an experienced solicitor. The consequences of consenting to an AVO are discussed later in this article.
OPPOSE THE AVO:
If you wish to oppose the AVO, the court will make orders for the service of statements from various persons, the matter will then be listed for hearing at some later stage. Almost always, the court will impose an interim AVO that exists for the period leading up to the hearing date. Once the matter is heard, the ultimate test for whether the court will impose the AVO is:
- Whether the protected person fears the defendant and has reasonable grounds to fear that the defendant will:
- Commit a personal violence offence or
- engage in:
- stalking or
If you decide to oppose the court imposing the AVO you can challenge it on the following grounds:
- The Applicant is unable to prove the allegations in the AVO on the balance of probabilities.
- The protected person does not fear you will either commit a personal violence offence or engage in stalking or intimidation.
- The protected person has no reasonable grounds to fear you will either commit a personal violence offence or engage in stalking or intimidation.
If you either consent to the AVO or you oppose it and the court finds the above test satisfied on the balance of probabilities, they have an obligation to impose 1 mandatory condition and the option to impose 9 other conditions on you for a maximum of 2 years as follows:
- You must not
- Assault or threaten the protected person or any other person having a domestic relationship with the protected person.
- Stalk, harass or intimidate the protected person or any other person having a domestic relationship with the protected person intentionally.
- Recklessly destroy or damage any property that belongs to or is in the possession of the protected person or any other person having a domestic relationship with the protected person.
- You must not approach the protected person or contact them in any way unless the contact is through a lawyer.
- You must not approach:
- The school or any other place the protected person might go to for study,
- Any place they might go for childcare, or
- Any other place listed here …
- You must not approach or be in the company of the protected person for at least 12 hours after drinking alcohol or taking illicit drugs.
- You must not try to find the protected person except as ordered by a court.
- You must not approach the protected person or contact them in any way unless the contact is:
- Through a lawyer; or
- To attend accredited or court-approved counselling, mediation or conciliation; or
- As ordered by this or another court about contact with children; or
- As agreed in writing between you and the parent(s) about contact with children
- As agreed in writing between you and the parent(s) and the person with parental responsibility for the children about contact with the children.
- You must not live at:
- The same address as the protected person; or
- Any place listed here …
- You must not go into:
- Any place where the protected person lives; or
- Any place where they work; or
- Any place listed here …
- You must not go within (X) metres of:
- Any place where the protected person lives, or
- Any place where they work, or
- Any place listed here …
- You must not possess any firearms or prohibited weapons.
THE CONSEQUENCES OF AN AVO
Although the existence of an AVO will not appear on your criminal record, AVO’s can have other consequences on a person in addition to the existence of the above conditions such as:
- You must surrender any firearms you own and you cannot apply for another firearms license until 10 years after the AVO has ended.
- An AVO may also impact your ability to work in certain occupations (security, police officer etc.)
- If the AVO involves the protection of children, you may not be able to work with children. This may also impact your ability to work in certain occupations.
CONTRAVENING AN AVO
WHAT HAPPENS IF YOU BREACH AN AVO?
It is a criminal offence if you breach the conditions of an AVO. The prosecution must prove the following beyond reasonable doubt in order to convict you of this offence:
- You were prohibited to act in a certain way under an Apprehended Violence Order; and
- You contravened that prohibition; and
- You did so, knowing that the prohibition was in place.
If you are guilty of contravening an AVO, your specialist lawyer at Australian Criminal Defence will help prepare your defence including references, expert reports, apology letters, and evidence of rehabilitation. The next step is that you will be sentenced. The table below shows the relevant penalty for each offence. For all offences dealt with in the local court, the maximum penalty is 2 years imprisonment. For matters dealt with in the District or Supreme Court (on indictment), the maximum penalty is as displayed below.
|Offence||Summarily dealt with||Dealt with on Indictment|
|Contravening AVO||2 years imprisonment; AND/OR
The maximum penalties are reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and are not commonly utilised by the court. A court has the discretion to sentence an offender in accordance with the Crimes (Sentencing Procedure) Act 1998 (NSW).
Domestic Violence and Apprehended Domestic & Personal Violence Orders Case Studies
- Our client was charged with 11 counts of common assault and an application for an AVO was made by the police. Our client denied the allegations. The matter proceeded to a defended hearing at the Downing Centre Local Court. After a two day hearing , the magistrate dismissed all charges and dismissed the application for the AVO.
- Our client was charged with the assault occasioning actual bodily harm. The prosecution also sought an application for an AVO. Our client denied the allegations. The matter proceeded to hearing at Waverley Local Court. After a one day hearing the magistrate agreed with our team that the prosecution failed to prove their case. The charge and application for AVO was dismissed.
- Our client was charged with recklessly causing grievous bodily harm and assualt occasioning actual bodily harm. The police made an application for a AVO. Our client denied the allegation. The matter proceeded to a defended hearing at Blacktown Local Court. After a one day hearing the magistrate dismissed both charges and the application for an AVO.
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