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APPREHENDED VIOLENCE ORDERS (AVO)


Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 25/7/2010

Making of an ADVO or APVO:

The court can make an order for an Apprehended Violence Order (AVO) in relation to either a Domestic situation referred to as a: Apprehended Domestic Violence Order (ADVO) or in a Personal situation referred to as a: Apprehended Personal Violence Order (APVO). The definition as what constitutes a ‘domestic relationship’ as per s5 (see below) of the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) is extremely broad and includes persons who have had an intimate personal relationship. An APVO encapsulates all other relationship.

The court will make an order for either an ADVO or APVO in the following circumstances as per ss16 and 19 and subject to the considerations within ss17 & 20 of the Act, if satisfied on the balance of probabilities (if domestic relationship – that a domestic relationship existed or if Personal) that:

1. A person has reasonable grounds to fear and in fact fears:
2.  The commission by the other person of a personal violence offence (see definition below) against the person, or
3. The engagement of the other person in conduct in which the other person:
(i) intimidates the person (see definition below), or
(ii) stalks the person (see definition below),
4. Being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

In certain circumstances, such as where the person is a child ie. under 16 years of age the prosecution are not required to prove that the person in fact fears such an offence or conduct. However, this is an area that to the author’s mind is misinterpreted by both police and prosecutors. Whilst the court is not required to be satisfied that the applicant in fact fears, the court must still be satisfied that that the applicant has fears (or believes) of such conduct occurring.

A number of the tests for the making of an AVO are generally overlooked however, this restricted or limited test somewhat mirrors the test for assault – in that, the person must have an apprehension of immediate unlawful violence as opposed to fearing immediate unlawful violence ie. fear is not a factor however, belief in/or conduct is. An example of such as case is: Brady v Schatzel 1911 Q.S.R p 206 where the accused was convicted after pointing a firearm at the victim with the victim indicating that he was not in fear or scared. Fear is not an element of the offence however, the person still must have an apprehension of immediate unlawful force.

Whilst it is not a criminal offence to have an AVO made against you – it does come with restrictions, in that you are not able to obtain a firearms license if you are the subject of or have been the subject of an AVO within the last 10 years: s11(5)(c) of the Firearms Act 1996. If such an offence is proven, apart from the possibility of a conviction, you cannot obtain a security license if you have been convicted of a stalking or intimidating offence: r18 Security Industry Regulations 2007.

Breaching an ADVO or APVO

The first issue the prosecution must satisfy is whether the person knowingly breached the order as per: s14(1). The maximum penalty for such a breach is imprisonment for 2 years or a fine of up to 50 penalty units or $5500. Where the breach involves violence unless the court orders otherwise the person convicted of such an offence is to be sentenced to a term of imprisonment: s14(4) of the Act.

COSTS

To be awarded cost in seeking or defending an ADVO or APVO is governed by s99 of the Act (see below). However, generally it has to be proven that the application was frivolous or vexatious for an APVO or if the police have made the application that the police officer made the application knowing that it contained matter that was false or misleading in a material particular (s99(4) of the Act). There is another exceptions which relates to procedural misconduct - see link


To the author’s mind s99(4) is merely a cost saving measure on behalf of the government as there have been numerous examples where police applications for AVO’s have not been warranted and dismissed – yet because the applicant is a police officer, costs cannot be awarded. Hence, unfortunately in unwarranted cases the defendant is at the whim of the attitude and experience of the police officer – which unfortunately police generally err on the side of making such an application and wasting everyone’s time and money!     

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 4
Meaning of “personal violence offence”:


In this Act, "personal violence offence" means:

(a) an offence under, or mentioned in, section 19A, 24, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 44, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66EA, 80A, 80D, 86, 87, 93G, 93GA, 195, 196, 198, 199, 200, 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006 ) or 562ZG of the Crimes Act 1900, or
(b) an offence under section 13 or 14 of this Act, or
(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b).

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 5
Meaning of “domestic relationship”:


For the purposes of this Act, a person has a "domestic relationship" with another person if the person:

(a) is or has been married to the other person, or
(b) is or has been a de facto partner of that other person, or
(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) is living or has lived in the same household as the other person, or
(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or
(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or
(g) is or has been a relative of the other person, or
(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Note: “De facto partner” is defined in section 21C of the Interpretation Act 1987.

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 7
Meaning of “intimidation”:


(1) For the purposes of this Act, "intimidation" of a person means:
(a) conduct amounting to harassment or molestation of the person, or
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 8
Meaning of “stalking”:


(1) In this Act, "stalking" includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 14
Offence of contravening apprehended violence order:


(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both.

(2) A person is not guilty of an offence against subsection (1) unless:
(a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or
(b) in any other case, the person was served with a copy of the apprehended violence order.

(3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned:
(a) was necessary in order to attend mediation under section 21, or
(b) was done in compliance with the terms of a property recovery order.

(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.

(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.

(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.

(7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned.

(8) A police officer is to make a written record of the reasons for:
(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or

(9) (whether or not the person is arrested), or
(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9).

If the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.

(9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

Note: The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence.

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 16
Court may make apprehended domestic violence order:


 (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or
(c) in the opinion of the court:
(i) the person has been subjected at any time to conduct by the defendant amounting to a personal violence offence, and
(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and
(iii) the making of the order is necessary in the circumstances to protect the person from further violence.

(3) For the purposes of this section, conduct may amount to intimidation of a person even though:
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

Note: Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 19
Court may make apprehended personal violence order:


(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person:
(i) intimidates the person, or
(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function.

(3) For the purposes of this section, conduct may amount to intimidation of a person even though:
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

Note: Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 99

Costs:

(1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.
(2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986.
(3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.
(4) A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.
(5) Subsections (3) and (4) have effect despite any other Act or law.

If you have any legal questions regarding Apprehended Violence Orders (AVOs) or need legal advice Contact Me.

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