After the application has been made, it is usually one to three weeks before the matter is heard by the Local Court (depending upon how often the Local Court is in session, and how busy its courts are). This first court date is sometimes called ‘the first return date’. The first return date is a ‘mention’ – that is, a short matter listed before a magistrate. Sometimes there could be 30 to 60 other matters in the same list, depending on the court. At this first mention, the magistrate will want to know what each party wants to do about the AVO.
The protected person should attend court on this date, even if it is a police application, so they can let the police prosecutor know they would like to proceed with the application and if any changes to the orders are required.
On the first court date, one of the following scenarios might occur:
The defendant is not present at court and has not been served with the application
The AVO application will be adjourned (postponed) usually for two to four weeks to allow time for the police to serve the application on the defendant. If the protected person has fears for their safety until the next court date, the magistrate may make an interim (short-term) AVO until the next court date. The magistrate will look at the grounds of the application and may ask for further information. The magistrate will only make an interim AVO if it is necessary or appropriate to do so. As the interim AVO is made in the defendant’s absence (an ex parte interim order), it will not be enforceable until it is served on the defendant.
The defendant has been served with the application but has not come to court
The defendant may have contacted the court if, for example, they are ill and have a medical certificate. Depending upon the excuse for non-attendance, the magistrate may decide to adjourn the AVO application to another date.
If the defendant has been served, and has no reasonable excuse for the absence, the magistrate can make a final order (as opposed to an interim order) in the defendant’s absence (called an ex parte order). An ex parte order is not enforceable until it is served on the defendant.
Usually a final AVO is made for 12 months or two years, but it can be made for whatever period of time the magistrate thinks necessary. If no expiry is specified on the AVO, the default period is 12 months.
The defendant has been served with the application and is at court
If the defendant has come to court, there are a number of things that may happen:
Seeks an adjournment for legal advice
If the defendant comes to court but has not had time to organise legal representation or seek legal advice, they can ask the court to adjourn the matter. A magistrate will normally allow this and will then consider making an interim order.
Consents to the AVO
If the defendant has (with or without legal advice or representation) decided to consent (agree) to the AVO he or she can consent to the order without admitting to any of the allegations made in the application. The magistrate will then usually make a final AVO by consent and ‘without admissions’.
Consents to undertakings
If the defendant does not consent to an AVO being made against them they may consent to an ‘undertaking’ if the protected person agrees to withdraw the application. An ‘undertaking’ is a promise to the court. Unlike an AVO, it is not a criminal offence to breach an undertaking. However, breaching an undertaking may give grounds for a further AVO application against the defendant. A protected person should seek legal advice before agreeing to an undertaking.
Does not consent to the AVO
If the defendant does not agree to (contests) the AVO being made, the magistrate will adjourn the case for further mention on another day (usually in one month’s time) in accordance with the directions in Local Court Practice Note 2 of 2012.
The protected person may want to withdraw the AVO
Sometimes the protected person may not want to proceed with the AVO application. In a private application, the applicant may seek the magistrate’s leave (permission) to withdraw the application. The magistrate will want to know why the protected person wants to withdraw the application – do they still have fears for their safety? Are they being pressured to withdraw the application by the defendant? If the magistrate is satisfied that the protected person is not being pressured to withdraw the application, and there are no related domestic violence offences, then the magistrate will usually allow the application to be withdrawn and will dismiss the matter.
In a police application, a decision to withdraw the AVO application will depend on the police. If there is a related charge matter for a domestic violence offence, or there are children listed on the AVO the police are likely to refuse to withdraw the application.
However, if the protected person has no fears for their future safety – for example, if the defendant has moved overseas or interstate and is unlikely to make contact again in the future– then even if the police continue with the application, the court can refuse to make the order on the basis that the person in need of protection is not fearful.